0507

The judge can rule any way he or she wants.

I would allow the demonstration despite the fact that it might make some jurors queasy. It is relevant to the central issue of assessing plaintiff's injuries. Thus, it has significant probative value -- I give it a 9.  Because it has high probative value, it does not matter if it is also very emotional and prejudicial to the defense. Relevant evidence may only be excluded if prejudicial effect "substantially" outweighs probative value. If probative value is high, no amount of prejudicial effect can "substantially" outweigh it.

Also, like in the previous problem, the emotional reaction arises from the nature of the case itself, not from something outside the case. Yes, it might be emotional and therefore prejudicial, but it is not "unfairly" prejudicial.

Questions? E-mail tanford@indiana.edu and refer to 0507

For some further examples of basic Rule 403 problems, let's look at the trial scene from the movie "Big Daddy." The trial is being held to determine the proper custody of a 5-year-old boy named Julian McGrath. The boy has been living with Sonny Cofax (Adam Sandler) for six weeks and Mr. Cofax has petitioned for custody. The legal standard is "the best interests of the child." We all know that if Adam Sandler is playing the role of Sonny, he is not going to be a particularly good candidate for custody.
The first witness is a grizzled old man. He testifies as follows:

Witness: Sonny Cofax is a good egg, he was nice to that kid. But he fights like a girl. [Turning to Sonny and laughing] You don't like that? I'm right here miss, what are you going to do about it?
Mr. Cofax: What? Are you drunk Mr. Herlihay?
A: I had a few Chardonnays, what of it?

QUESTION: If the evidence that the witness is intoxicated were objected to as violating Rule 403, how should the judge rule? When you think you know the answer, click here .