Discretionary Exclusion of Relevant Evidence (Step 3)

Question 1

FRE 403

Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time or Other Reasons

Answer 1

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issue, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

FRE 403 favors admissibility

Question 2

Cumulative Evidence

Answer 2

Facts or information that proves what has previously been established by other information concerning the same issue. Cumulative evidence is synonumous with corroborative evidence

Question 3

Undue Prejudice

Answer 3

“It means an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one.”

Advisory Committee

The burden is on the defendant to show the substantial damage.

Question 4

Undue Prejudice Examples​

Answer 4

• Evidence affects the jury emotionally so much so that they cannot think rationally
• Propensity evidence

Question 5

Old Chief v. United States (1997)

Facts

Answer 5

Defendant was charged with assault with a dangerous weapon, using a firearm in relation to a crime of violence, and violation of 18 U.S.C. § 922(g)(1), which forbids anyone convicted of a crime punishable by over a year in prison from possessing a firearm. The defendant’s past conviction was for assault causing serious bodily injury.

Question 6

Old Chief v. United States (1997)

Procedural History

Answer 6

The trial court admitted the evidence and found the defendant guilty. The defendant appealed, saying his offer to stipulate made the evidence inadmissible. The Ninth Circuit affirmed but SCOTUS reversed

Question 7

Old Chief v. United States (1997)

Defendant’s Argument

Answer 7

The defendant wanted the court to exclude evidence of his prior conviction and offered to stipulate that he committed a crime punishable by over a year in prison. He wanted to prevent the jury from assuming he would commit the same crime again

Question 8

Old Chief v. United States (1997)

Prosecution’s Argument

Answer 8

The prosecution admitted there was a slight danger but said that it wasn’t using the charge for propensity and refused the stipulation, saying it was using the crime to show that the defendant was in the required class (an element of the crime). The district court said the prosecution didn’t have to accept the stipulation if it didn’t want to

Question 9

Old Chief v. United States (1997)

Ruling

Answer 9

SCOTUS ruled that the trial judge erred by allowing the evidence because there was too much of a chance that the jury would use the prior conviction as propensity evidence and that outweighed its probative value

Question 10

FRE 105

Limiting Evidence That is Not Admissible Against Other Parties or for Other Purposes

(Alternative to Exclusion Under FRE 403)

Answer 10

If the court admits evidence that is admissible against one party or for a purpose – but not [admissible] against another party or for a purpose – the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

• Sometimes the judge may see a problem and give limiting instructions without being asked. Judges should be cautious about this because sometimes it just emphasizes the issue to the jury.

Question 11

FRE 106

Remainder of or Related Writings or Recorded Statements

Answer 11

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part – or any other writing or recorded statement – that in fairness ought to be considered at the same time

Question 12

Should FRE 106 open the door to evidence that is otherwise inadmissible?

Answer 12

Courts are split. Some courts say no - it’s only about the timing of when the evidence is presented. Other courts will allow inadmissible evidence

Question 13

Dowling v. United States

1999

Answer 13

• A prosecutor may introduce evidence of an acquittal because the burden of proof when convicting a defendant is beyond a reasonable doubt and the burden of proof for Rule 404(b)(2) is preponderance of the evidence.
• Defendants cannot introduce evidence that they were acquitted because being acquitted just means the jury couldn’t convict the defendant under the beyond a reasonable doubt standard. It does not mean the defendant didn’t do it