0509

Oddly enough, I think it is all admissible under Rule 403. The apparently irrelevant and random babblings about the witness's own disturbed childhood have minimal relevance, but not absolutely no relevance. They tell us something about the witness himself. It is always relevant for a witness to say a little something about his or her background so the jury knows who is testifying. The jury is entitled to take a witness's background, demeanor, credibility and character into account in deciding whether to believe anything the witness says. I give it a probative value of 1.

But, I don't see any specific Rule 403 danger at all. Remember that there are three such dangers -- confusion, waste of time, and unfairly prejudicial (emotional). You have to consider each one.

I see no prejudice -- there are no emotional issues being raised. The only potentially emotional part is the reference to O.J. Simpson, but it's hard to see how it would distract the jury from the merits of the custody case in front of them, especially because it's old news.

I see no undue waste of time. It's just one quick comment.

I also see no confusion of the issues or misleading the jury. Confusion is one of the reasons for excluding relevant evidence under Rule 403, but its exact meaning is not clear. The most common definition is something like this:

"Confusion of issues" occurs when the introduction of an item of evidence raises the likelihood that it (and the opponent's rebuttal evidence) may create a side issue that will unduly distract the jury from the main issues.

The one line that "I think Mr. Cofax should be acquitted of all charges" may have a slight confusion effect because this is a civil custody case, not a criminal case, so this testimony could have a tendency to cause the jury to get confused as to what the issue is, but I give it a prejudicial effect no greater than 2.

Questions? E-mail tanford@indiana.edu and refer to 0509.

[The next witness speaks with a heavy eastern European accent:]
Q: How long have you been delivering food to Mr. Cofax?
A: I deliver food for six years, but I ate food on the way, so it's a problem.
Q: I see, and in your experience was Sonny a good father to Julian?
A: Oh yes, they make terrific pair. They went together like lamb and tuna fish.
Q: Lamb and tuna fish?

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