FRE 401:

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

Emphasis added.

In other words evidence is relevant if it has both a probative nature (the party is more or less likely to have done something) and a material nature (needs to have some impact on the outcome of the case). Rather than making an objection for probativeness or immaterial, a party can make an objection for irrelevance.


FRE 401, 402

George F. James, Relevance, Probability and the Law

29 Calif. L. Rev. 689 (1941).

Probativeness has a logical element to it. It is also a very easy bar to overcome because if the evidence has any tendency to impact the likelihood, then the first element is satisfied.


United States v. James

169 F.3d 1210 (9th Cir. 1999).

James was the defendant, convicted at trial and appealed.


Should the evidence have been admitted? Was it material (affect the outcome of the case)?


The material was prohibitive and material. As such, the jury should have had the opportunity to see it. Reversed.


James was dating Ogden who was violent when drunk. At several times, Ogden boasted that he had killed a person and gotten away with it. James’s daughter responded violently when Ogden became dangerous.

One instance, James was sitting in the car while the daughter and Ogden were out of the car. They were running around out of view of James. James knew that the Ogden was drunk and could be violent right now. Suddenly the daughter ran to the car, asking for the gun. James gave the gun to the daughter and later heard gunshots. The daughter had shot and killed Ogden.

James was then charged as an accessary to murder. Her present defense is self-defense. Specifically, her reasonable belief of his violence was based on the statements he made to her (even though she did not know about his actual criminal records).

When the jury heard about the Ogden’s boasts about his criminal record, they asked for evidence of that record (“did he really kill someone or was it just a boast?”). The judge refused to allow the jury to see any evidence because James had not seen any evidence. In other words, whether he had a criminal record or not would not have influenced her mind at the time of the crime (it was immaterial).


This court disagrees that the material was immaterial. They say that the material could be used to corroborate James’s testimony that the Ogden told her of those things. In other words, the evidence was material in the sense that it built her credibility. The main inference by the court is that people are predisposed to tell the truth when they are boasting.

Conditional Relevance

FRE 104(b)

Cox v. State

696 N.E.2d 853 (Ind. 1998).

Cox was convicted and appealed.


When is evidence based on a conditional fact allowed?


When evidence is only relevant if a conditional fact is prevalent, there must be a good reason to show that the conditional fact actually occurred.


Here, there is evidence to show that the conditional fact occurred, so admission of the evidence was not in error. Affirmed.


Cox was accused of killing Mr. Leonard. He knew how Mr. Leonard had died and had no alibi. To provide a motive, the state wished to show that Cox was seeking retribution against legal action that was taken against his good friend Hammer. At the time of the shooting, Hammer had a case that was pending against him, and additional charges were filed against him of molesting Leonard’s daughter. Although Cox was not at the hearing, Hammer’s mother was. Cox was staying with Hammer’s mother at the time. The inference is that Cox heard about the hearing from Hammer’s mother.

Cox sought to exclude evidence about Hammer and the outcome of the hearing because it was conditioned on the fact that Cox knew about the outcome of the hearing, something the state had not proven.


Because Cox was staying with Hammer’s mother, who had attended the hearing, it is reasonable to assume that Cox had heard about the outcome from Hammer’s mother. If this is true, then there would have been ample motive for Cox’s actions and the evidence may be admitted.

Additional Notes

A conditional relevancy question must pass preponderance of the evidence.

The Risk of Unfair Prejudice

FRE 403

Probative relevant evidence may be excluded if it is substantially outweighed by: “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

This is a rule of inclusion rather than exclusion. The only situation where the probative evidence may not go in is if it is substantially outweighed by the factors listed.

The analysis follows as:

  1. Is the evidence relevant? If no, not admissible.
  2. If yes, is it inadmissible because of undesirable characteristics such as:
    • Rule 403 dangers
  3. Assess probabitive value
  4. Balance that value against rule 403 dangers. May only be excluded if the dangers substantially outweigh the probative value.

Probative value is not the same as relevance. Probative value is the strength (significantly increases or decreases likelihood) of relevant evidence.

Photos and Inflammatory Evidence

State v. Bocharski

200 Ariz. 50 (2001).

Bocharski was convicted of murder and appealed.


Did the photographs substantially lead to unfair prejudice?


Although two of the photographs should have been excluded, they did not influence the verdict outcome. As such, the convictions are affirmed.


Bocharski was given a knife by a friend and moved to a campsite. Later, an elderly lady moved to the campsite nearby. Bocharski was talking to a friend about possibly killing the elderly lady because she was always complaining. Sometime later, the lady was discovered dead within her trailer, already showing signs of decomposition. It was later discovered that she died from knife wounds, but Bocharski’s knife was never found.

Pictures were admitted into evidence at trial that had little impact on the case. They were relevant but did not bar on any questions that were at issue. The pictures were gruesome in nature.


The trial court did not abuse its discretion (the trial judge’s reasoning was clearly untenable or unreasonable) with a few photos because they depicted the state of decomposition, which was being questioned at trial. However, a couple other pictures showing an angle of the wounds was inadmissible because those angles were not talked about at trial and could only have been used to prejudice the jury against the defendant.

However, because the jury decision was not influenced by the photos that should have been excluded, the convictions stand. “Harmless error” Rule 103.

Rebecca Hofstein Grady et al., Impact of Gruesome Photographic Evidence on Legal Decisions: A Meta-Analysis

25 Psychiatry, Psych. & L. 503 (2018).

According to studies, gruesome photos have only a slight impact compared to non-gruesome photos in procuring a conviction. However, gruesome photos as compared to no photos has a significant impact in procuring a conviction. In other words, the inclusion of any photo at all is going to lead to an increase conviction rate, while gruesome photos may lead to more punitive feelings.

Commonwealth v. Serge

549 U.S. 920 (2006).

Serge was convicted and appealed.


Is the use of computer generated animations (CGA) as demonstrative evidence create an unfair prejudice?


CGAs are treated as any other type of evidence.


The CGA in question was properly admitted and can be used as demonstrative evidence.


The defendant was convicted of killing his wife. He claimed self-defense. However, the evidence showed that he had staged a self-defense crime scene. The state hired two experts to prove this. Additionally, the state hired a computer animation company to create an animation that depicted what the experts were saying. The animation would be used in trial to illustrate the expert’s testimony.


This type of evidence is fine. The animation was a fair and accurate depiction of the expert’s testimony and is no different than if the experts had drawn on a chalk board to explain their testimony. Although the court spends some time debating whether the financial disparity between parties could be prejudicial (one party may have the finances to create an animation while the other does not), the court ultimately reasons the disparity is not significant in this case. Finally, the court says there is no unfair prejudice because the depiction does not contain sound, facial expressions, or emotion.

United States v. James (Dissent)

169 F.3d 1210 (9th Cir. 1999).

This dissent is based on the same facts mentioned earlier in this article. In the majority, the evidence of him bragging about killing another was admitted based on the credibility of the witness. However, the dissent is saying that the evidence was admissible, but it was not a great error that the trial court didn’t let the evidence in under Rule 403. In other words, the evidence could lead to an undue prejudice on the State because the victim was not on trial.

Evidence of Flight

United States v. Meyers

550 F.2d 1036 (5th Cir. 1977).

There was a bank robbery in Florida and Pennsylvania but the perpetrator was not apprehended. The FBI believed that Meyers was the one who committed the robbery based on a series of evidence, including the fact that Meyers had fled from the FBI on multiple occasions (once in Florida and once in California. He was ultimately caught in California).

Evidence of flight can be used as a factor to prove the guilt of an individual. However, flight alone cannot be used.

The issue here though is that the inference of flight is to lead the jury to believe that the person is not innocent (in other words, guilty). However, we have no evidence of knowing why Meyers fled (whether it was connected to the Pennsylvania robbery, Florida robbery, both, or neither). Additionally, testimony was contested about whether he was actually fleeing (while in California). As such, the evidence is not admissible.

Probability Evidence

People v. Collins

68 Ca. 2d 319 (1968).

This case deals with the use of statistical evidence in the courtroom. Although this case did not allow the statistical evidence, there may be some use.

In the present case, there was a problem with the eyewitness accounts and he wanted to fill in the gaps with mathematical evidence. Here, the expert testimony of a mathematician described the probability of a blonde woman, with a particular hairstyle, with an African American individual with her, at that location, with that kind of car, etc.

Takeaways: (1) Statistical probability in a criminal case (other than DNA) has minimal use. (2) Be careful with the experts you find.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 2L Spring, Evidence

Will Laursen

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