0508

You are correct no matter how you ruled. Rule 403 balancing is at the judge's discretion.

I think the evidence is probative of the witness's credibility and reliability, but also has prejudicial effect. It brings alcohol into the case. Like sex, drugs, politics, etc., there are people who think that any level of alcohol consumption is morally evil and others who see excessive consumption as a sign of bad character, so the evidence has prejudicial effect. The question is how to balance these two aspects.

I think most judges would allow the evidence, because it is important that the jury be able to evaluate the credibility of witnesses. In other words, it has significant probative value which cannot easily be substantially outweighed by its prejudicial effect.

Questions? E-mail tanford@indiana.edu and refer to 0508

The next witness is a friend of Sonny's who testifies:

Witness: Mr. Cofax is a really cool guy. Wish my dad was as cool as him. You see my dad was a military man. Guess I wasn't such a "good soldier". When I was thirty-five years old, he attempted to give me a crew cut while I was sleeping one afternoon. I woke up, broke his arm, haven't seen him since. I'd rather live out on the streets than under his freaky assed rules. Anyway, I think Mr. Cofax should be acquitted of all the charges. If O.J. can get away with murder, why can't Sonny have his kid?

Should the judge exclude some or all of this testimony if it were objected to as violating Rule 403? (a judge can sustain in part and overrule in part). Write out a short answer and then click here .