Relevance and FRE 403

MBEMax wiki article — paired with the Evidence question set on mbemax.com.

One-line summary

Evidence must be relevant — having any tendency to make a fact of consequence more or less probable — and, even if relevant, may be excluded under FRE 403 when probative value is substantially outweighed by unfair prejudice, confusion, waste of time, or cumulative effect.

Mnemonic

F-R-E-Triple-C — Fair prejudice, Relevance threshold, Exclusion factors: Confusion, Cumulative, Consumption (time).

Relevance — FRE 401 and 402

• FRE 401. Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, AND the fact is of consequence in the action.
• FRE 402. Relevant evidence is admissible unless another rule excludes it (Constitution, statute, other Rules). Irrelevant evidence is inadmissible.
• Probative value need not be great — even a marginal tendency counts.
• "Fact of consequence" = material to any element, claim, or defense.

FRE 403 — Balancing

Relevant evidence may be excluded if probative value is substantially outweighed by:

• Unfair prejudice — emotional response, not just harmful-to-opponent.
• Confusing the issues.
• Misleading the jury.
• Undue delay, wasting time, or needlessly cumulative evidence.

The word substantially is critical — default is admission.

Common FRE 403 grounds

• Gruesome photos / graphic evidence — admissible if probative to identity, manner of death, injury; excluded when purely inflammatory.
• Prior-bad-acts under 404(b) — even with proper non-propensity purpose, 403 can still exclude when prejudice dominates.
• Stipulations. Old Chief v. United States: stipulation to felon status substituted for record-reading; 403 bars unnecessary detail when stipulation available.
• Scientific/statistical evidence — complexity vs. probative weight.
• Remote / cumulative. Piled-on testimony may be cut.

Related exclusionary rules (policy-based)

Several rules are technically separate from 403 but reflect similar policy of excluding probative evidence:

• FRE 407 — Subsequent remedial measures. Inadmissible to prove negligence, product defect, or need for warning. Admissible for other purposes (ownership, feasibility if controverted, impeachment).
• FRE 408 — Compromise offers and negotiations. Inadmissible to prove validity/amount of claim or to impeach. Admissible for other purposes (bias, undue delay, obstruction).
• FRE 409 — Offers to pay medical expenses. Inadmissible to prove liability for the injury.
• FRE 410 — Pleas and plea discussions. Withdrawn guilty pleas, nolo pleas, plea-discussion statements — inadmissible against the defendant who made them.
• FRE 411 — Liability insurance. Inadmissible to prove negligence. Admissible for other purposes (ownership, control, bias).

NCBE loves to test

• Probative value threshold. "Any tendency" is a low bar.
• Unfair prejudice defined. Jury emotion, not mere harm.
• Stipulation trap. Old Chief — when defendant stipulates to felon status, prosecution cannot re-prove with detail of prior crime.
• Subsequent remedial measures. Classic trap: admissible for impeachment or to show feasibility when controverted.
• Plea discussions protection. Statements made during plea negotiations with prosecutor — not admissible against defendant. Does NOT extend to police.
• Insurance evidence. Inadmissible only when offered to prove negligence / wrongful conduct. Admissible to show ownership, bias of witness employed by insurer.
• Settlement offers. 408 broadened — statements made during negotiations are inadmissible, including admissions (unlike common law).
• Rape-shield and character. FRE 412 similar rationale; 403 may override in edge cases.

Fast hypos

Hypo 1. Prosecution offers 30 autopsy photos to show cause of death. Defense objects. 403 analysis — some photos likely admissible; cumulative or gruesome beyond necessity excluded.

Hypo 2. Defendant stipulates he is a felon; prosecution insists on reading the specific prior conviction to the jury. 403 — stipulation suffices (Old Chief); detail excluded.

Hypo 3. Plaintiff slips on supermarket floor. After incident, store changes flooring. Plaintiff offers the change as evidence of negligence. FRE 407 — inadmissible to prove negligence. Admissible if feasibility is controverted.

Hypo 4. In settlement talks, defendant emails "Look, my driver was speeding — we all know that. Let's settle for $10,000." Plaintiff tries to introduce in trial. FRE 408 — inadmissible. Admission made during negotiations excluded.

Hypo 5. Witness for defendant is insurance adjuster. Plaintiff wants to show bias. FRE 411 — insurance admissible to show bias.

Case anchors

• Old Chief v. United States, 519 U.S. 172 (1997) — stipulation to felon status under 403.
• Huddleston v. United States, 485 U.S. 681 (1988) — 403 balancing for 404(b) evidence.
• Mendenhall v. Cedarapids, Inc., 5 F.3d 1557 (9th Cir. 1993) — 407 limits.
• Daubert v. Merrell Dow, 509 U.S. 579 (1993) — scientific-evidence admissibility (FRE 702 via 403).

See also

• Hearsay
• Impeachment
• Character
• Authentication

Sources

Fed. R. Evid. 401, 402, 403, 407, 408, 409, 410, 411, 412; Old Chief v. United States, 519 U.S. 172 (1997); Huddleston v. United States, 485 U.S. 681 (1988); Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).