0510

I think the evidence is not confusing within the meaning of Rule 403. The word "confusion" as used in Rule 403 does not simply mean hard to understand. It means legal or procedural confusion -- that is, the evidence may cause the jury to become confused as to what the issues are or what they are supposed to decide. The commonest example is evidence concerning an issue that is not contested, e.g., testimony about the extent of plaintiff's injuries when damages have been stipulated and the trial is solely to determine comparative fault.

If Bill Cosby is ever actually tried in Philadelphia for a 2004 sexual assault on Andrea Constand, could the prosecutor ask Cosby:

Q: Isn’t it true that 30 women have accused you of drugging and assaulting them?

I think the answer is “No.” It confuses the issues for two reasons:  it confuses accusations with proof of guilt, and it asks about entirely different events with different victims making different claims, all of which will tend to distract the jury away from the difficult question of whether Cosby committed a criminal sexual assault on this particular woman who says she voluntarily took the qualuudes. The jury is supposed to decide his guilt case-by-case, on the charges before it, and is not supposed to consider whether he might have drugged and raped other women.

Questions? Email tanford@indiana.edu and refer to 0510

The trial continues:

Judge: Next witness.
Opposing attorney: Your honor, Mr. Cofax is simply parading his buddies up there. Can't they find somebody who isn't a friend?
Plaintiff's attorney: Sure. We call Danielle Sorensen.
* * *
Q: What were Julian and Mr. Cofax doing when you saw them?
A: Shopping.
Q: And did Mr. Cofax appear to be an attentive and loving father?
A: He certainly did.
Q: How long have you disliked Mr. Cofax?
A: Since the day I met him.
Q: And, for the record, where did you work before you attended medical school?
A: Hooters.

If there is a Rule 403 objection made to the evidence that Danielle used to work at Hooters, should the judge sustain it overrule it? When you think you know the answer, click here .