§ 5214.2“Probative value”—As Applied in the Courts, 22A Fed. Prac. & Proc. Evid. §...
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`22A Fed. Prac. & Proc. Evid. § 5214.2 (2d ed.)
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`Federal Practice & Procedure
`Federal Rules Of Evidence
`Database updated April 2015
`Kenneth W. Graham, Jr. a388
`Federal Rules of Evidence
`Chapter 5. Relevancy and Its Limits
`Kenneth W. Graham, Jr. a409
`Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
`B. The Balancing Test
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`§ 5214.2 “Probative value”—As Applied in the Courts
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`Link to Monthly Supplemental Service
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`We shall pass over the debates about the merits of direct vs. circumstantial evidence and begin with the former. 1 “Direct
`evidence”, strictly speaking, is limited to evidence that requires no inference to make it relevant, save the four “testimonial
`assumptions” in the case of testimonial direct evidence. 2 For reasons we will now sketch, true “direct evidence” must have
`the highest possible probative value and therefore cannot be “substantially” outweighed by any of the possible harms. To put
`it more starkly, the trial judge has no discretion under Rule 403 to exclude true “direct evidence.” But as we shall see, judges
`will confront true “direct evidence” much less often than the reader might suppose.
`Testimonial direct evidence
`Suppose in a prosecution for assault with a deadly weapon, the victim testifies “Ted Jones (the defendant) hit me in the face
`with his fist.” This is testimonial “direct evidence”; to use it to prove defendant's guilt, the jury need only find that defendant
`perceived the fist hit his face, that he recalls that perception accurately, that he states that recollection truly, and he does not
`have a peculiar vocabulary in which “fist” refers to what everyone else would call a “feather”.
`Because under our system, only the jury can constitutionally decide issues of credibility, the writers agree that the judge
`cannot exclude the testimony of a witness because he does not believe it; the judge must weigh its probative value on the
`assumption that the jury will believe it. 3 Most appellate courts enforce this limit on the trial judge's power under Rule 403. 4
`However, one can find cases in which courts overlook this fundamental point. 5 We assume readers of this treatise will not
`make that mistake. 6
`Can hearsay evidence be “direct”?
`Hearsay evidence also turns on the four testimonial assumptions; does this mean the judge must treat it like testimonial
`“direct” evidence. 7 Where the issue is whether or not the witness made the statement, the jury gets to decide for the reasons
`discussed above. 8 But on the question of the probative value of hearsay, courts have taken varying positions depending on
`the circumstances. 9 But it seems clear that the appellate courts will leave the decision to the trial judge. 10 Unlike testimonial
`“direct” evidence, the trial judge can use Rule 403 to exclude hearsay evidence. 11
`Non-testimonial “direct” evidence; a.k.a. “autoptic proference”
`Wigmore created a category he called “autoptic proference” that consisted of objects that he supposed proved a consequential
`fact without any inference. 12 Morgan pointed out that it would take a truly exceptional state of facts to make the condition
`of an object at the moment it was shown to the jury a consequential fact. 13 Suppose, for example, a murder prosecution in
`which the prosecution wheels in the victim's corpse to prove that the victim was dead. First, the prosecution would have to
`authenticate the body as that of the victim—a kind of relevance to be decided by the jury under Rule 104(b). 14 Second, the
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`§ 5214.2“Probative value”—As Applied in the Courts, 22A Fed. Prac. & Proc. Evid. §...
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`jury in a murder case does not decide as a “consequential fact” whether the victim is dead at the time of trial but whether
`he died as a result of the acts of the defendant. 15
`If we change the hypothetical to a suit on a life insurance policy, we reach the same result. The jury must decide, not whether
`the insured is now dead, but whether he died while the policy was in effect. If the policy lapsed shortly after the insured, the
`attorney for the beneficiary might argue that the jury could use the corpse to prove the time of death. But this would make
`the corpse circumstantial, not direct evidence of the time of death. Worse yet, the judge would have to decide whether the
`corpse satisfied “the epistemic condition”; that is, whether the body has some perceptible quality that reveals directly to the
`senses of the jury the time of the insured's death. 16 Wigmore wanted judges to “solve” this problem by ignoring it 17 —not
`an attractive option for an intellectually honest judge.
`We departed on this little excursus, not to show our cleverness in devising impractical examples, but to persuade the reader
`that in ordinary trials the judge and jury will see little truly “direct” evidence. In a simple robbery prosecution, the testimony
`of an eye-witness to the crime will be direct only as to the acts of the perpetrator; his intent cannot be perceived, but must be
`inferred from his acts and words. Nor can the witness “see” the identity of the perpetrator; she can only testify to her opinion
`that the man seated next to defense counsel is Ted Jones, the man who committed the robbery.
`We turn now to the application of Rule 403 to objects—so-called “real proof.”
`Real proof
`The offer of objects as evidence presents the judge with some distinctive problems in the application of Rule 403. 18
`First, when the party offers an object so that the jurors can see one or more of its qualities to draw an inference from those
`qualities to some consequential fact 19 , the jurors must have the capacity to perceive those qualities—what has been called
`“the epistemic condition.” 20 Can the judge take perceptibility into account into account in assessing probative value under
`Rule 403—or must she treat this like the credibility of a witness in testimonial proof? 21
`On the one hand, the ability of the jurors to see the quality of an object does not seem like an element of its “probative
`value.” 22 On the other hand, we see little difficulty in a ruling that something the jury cannot perceive “proves nothing.” 23
`Nothing in the policy of Rule 403 seems to preclude the judge from considering perceptibility in assessing probative value. 24
`We see difficulty only in cases where the proponent claims that the quality has a degree of perceptibility, but is not completely
`perceptible. 25 But the difficulty we see in measuring degrees of perceptibility seems to us no different than measuring
`the degree of prejudice; in both cases we lack units of measurement. If require the judge to measure “prejudice” without a
`yardstick, why not perceptibility? In any event, appellate courts seem to grasp the problem even if they never heard of the
`“epistemic condition.” 26
`Real proof and the “need” for evidence
`The second problem we alluded to above arises from the fact that a proponent always has an alternative to introducing an
`object; that is, calling a witness to describe it. 27 Courts will find this option attractive when the object bears both probative
`value and prejudice 28 ; the witness can be asked to describe the probative features but omit those that would prejudice the
`opponent. Rule 403 tells the judge nothing about the role of alternative measures in balancing; but we can find the answer
`by an indirect route. 29
`We begin with this statement from the Advisory Committee: under Rule 403 a court can balance “the probative value of and
`the need for evidence against the harm likely to arise from its admission.” 30 The writers find the intent clear. 31 So we must
`try to figure out how to get the intent out of the note and into the rule. 32
`We see several ways to do this. We go to the dictionary and finding that “value” has many meanings, we conclude that its
`use creates an ambiguity. In its use in Rule 403, “value” might carry the mathematical or ethical sense as the intrinsic worth
`of an item of evidence in proof of the consequential fact. 33 But we think it makes more sense to use “value” as an economist
`would—in the relative sense of determined by supply and demand. We can easily find many cases that use “probative value”
`this way. 34 This meaning seems implicit in harms such as “waste of time” and “cumulative evidence.” 35 We might also
`say that prejudice becomes “unfair” when the proponent could prove the same point with less prejudicial evidence but for
`the fact that this seems like a kind of “double-counting.” 36
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`§ 5214.2“Probative value”—As Applied in the Courts, 22A Fed. Prac. & Proc. Evid. §...
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`Some might read the Advisory Committee's not to say that courts should use “need”, not when they balance, but in the post-
`balancing exercise of discretion. 37 We think it would be a mistake to read the Note this way. For one thing, courts have not
`read the predecessor provisions this way. 38 Moreover, appellate courts can only develop criteria for applying need if the
`trial court does it openly during the balancing test, rather then internally during its exercise of discretion. 39 Lawyers need
`such criteria in planning the presentation of evidence at trial—particularly for items of evidence requiring logistics such as
`so-called “demonstrative evidence.” 40
`Probative value of circumstantial evidence
`Appellate courts analyze probative worth most frequently in cases of circumstantial evidence. 41 Appellate judges have much
`experience in their collective memory in determining the probative worth of evidence, both in the pre-rules assessments of
`the weight and sufficiency of evidence and in reviewing discretionary exclusion. 42 But beyond some stereotyped issues
`like “flight” 43 or “gory photos,” 44 appellate judges cannot seem to agree on generalizations about the probative worth of
`circumstantial evidence.
`We suspect the cause of this miasma lies in the way lawyers argue or the way appellate judges decide Rule 403 issues. 45
`Consider this case: 46 the defense offers evidence that the prosecution's key witness habitually used cocaine in order to show
`that his ability to perceive and recollect were clouded with snow. 47 In a preliminary fact hearing, the witness conceded he
`had had a cocaine habit, but claimed he had stopped snorting a couple years earlier and that his perception and recollection
`of the events was clear. 48 The appellate court approved the trial court's exclusion of the evidence of cocaine use under Rule
`403 on the grounds that the probative value of the evidence was “slight” and thus outweighed by the dangers of prejudice
`and confusion of issues. 49
`It appears to us that the “generalization” that emerges from this case is: a witness can destroy the value of impeaching evidence
`by denying it. 50 This seems to violate the common law and constitutional rules that the credibility of the witnesses must be
`decided by the jury, not by the trial judge. 51 The trial judge did not, we hasten to add, purport to decide the credibility of
`the witness, but only the admissibility of impeaching evidence. 52 We question, not the appellate court's conclusion—only
`it's failure to generalize about the probative worth of the evidence. 53
`We think two factors emerge most prominently when cases and commentators analyze the probative worth of circumstantial
`evidence. 54 The trial judge should first consider the strength of the immediate inference. 55 To do this, the judge must first
`identify the major premise in the relevance syllogism. 56 For example, the major premise of propensity evidence offered
`against the defendant in a prosecution for child sexual abuse under Evidence Rule 414 is: “a person who has a propensity to
`sexually abuse children is likely to do so.” 57 To satisfy Rule 401, “any tendency” to prove the consequential fact makes the
`evidence relevant; but to apply Rule 403, the judge must measure the strength of the major premise more precisely. 58
`Consider, for example, the case of Bedell v. Williams, a suit for malpractice. 59 The defense offered evidence that the patient
`continued to deteriorate after leaving defendant's care to prove that the cause of her declining health was not defendant's care;
`the appellate court had little problem finding the evidence relevant for that purpose. But to apply Rule 403, the trial judge
`would have to ask: “how often does health decline after negligent care and how often does it decline without negligent care?”
`In theory, the burden is on the party invoking Rule 403 to prove the answer to that question 60 —unless the court could
`judicially notice the answer. But because appellate courts give the trial judge only vague guidance, 61 in practice the trial
`judge can only “guess-timate” the answer. Federal appellate courts do not give trial judges usable generalizations on how to
`measure the probability of major premises; instead, they give only vague ipse dixits on probative worth in particular cases. 62
`State courts don't do much better. 63
`If the trial judge somehow gets through the first step 64 in measuring probative worth, she then confronts the second; the
`strength of each intermediate inferences 65 and the number of them between the immediate inference and the consequential
`fact the evidence is offered to prove. 66 The court can have difficulty deciding just exactly how many inferential steps to take
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`§ 5214.2“Probative value”—As Applied in the Courts, 22A Fed. Prac. & Proc. Evid. §...
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`between the immediate inference and the consequential fact. An unusually conscientious California appellate court took only
`two steps to get from defendant's statement that he could get back stolen property in 24 hours to the consequential fact that
`he had some role in the theft: first, from the statement we can infer he had access to it; second, from his access we can infer
`he had some role in the theft. 67 But another judge could arrive at the same destination in three completely different steps:
`first, he knows where the stolen property is; second, that he can get to that place; and third, that anyone else who controls
`access to that place will allow him to take the drugs. 68
`Little wonder then, that appellate courts seem reluctant to work their way through the required analysis. 69 Instead both
`federal 70 and state courts 71 simply announce that the evidence has probative worth. Courts seldom do much better in
`analyzing low probative worth. 72 For example, a federal appellate court held that a new suicide warning on defendant's
`drug after plaintiff's decedent's suicide had no probative value to show that the drug company knew of the suicide before
`decedent's death. 73 But this ignores the “last straw” argument; that is, the company knew about the suicide problem but
`hoped it would go away until decedent's death convinced the company bosses they could not afford to dawdle any longer.
`We leave it to the reader to decide if the other low probative worth opinions do a better job. 74
`Judges sometimes engage in “double counting”; that is, applying the same factor in more than one place in the Rule 403
`equation. For example, in applying the California Evidence Code's equivalent of Rule 403, one appellate court announced
`in excluding evidence offered by a criminal defendant in support of a “Perry Mason defense” that evidence “which simply
`affords a possible ground of suspicion against a third person is generally excluded as unduly prejudicial.” 75 The court thus
`counts the evidence against the defense on one side of the balance and for the prosecution on the other. 76
`The reader may object that circumstantial evidence rarely proceed in the linear fashion that our elementary discussion might
`suggest. 77 We agree; circumstantial evidence requires an interaction between the proffered evidence and the other proof in
`ways that defy the use of any simple mathematical formula for calculating probative worth. 78 Indeed, the calculations of
`the jurors probably run in both directions 79 ; that is, as the evidence of guilt accumulates, the jurors will tend to discount
`evidence that points to guilt, thus increasing the probative worth of evidence of guilt. But the Advisory Committee stuck
`courts with a simple-minded linear analysis with its “ropes and chains” of circumstantial evidence; so trial and appellate
`court judges must muddle through with what they have. 80
`Probative worth of illogical evidence
`To this point, we have assumed that the “logic” of Rule 403 was “deductive.” But we can see two competing forms of logic
`courts might use. 81 The first, familiar to devotees of detective fiction, logicians call “abductive logic” 82 ; that is, the judge
`uses the jig-saw puzzle metaphor, assessing probative worth by how well the new piece of evidence fits the other pieces
`already on the board. The second is so-called “narrative relevance” 83 that asks how well the evidence provides a narrative
`that conforms to some “schema” the jury may hold about how a particular event normally occurs. 84
`The Advisory Committee opened the door to other forms of logic when it deleted the word “disputed” from the predecessors
`of Rule 403 to admit what it called “background facts.” 85 The Supreme Court walked through that door when it sanctified
`“narrative relevance in the well-known Old Chief case. 86 Both state 87 and federal courts 88 have tried their hand at
`“narrative relevance.” But no court seems to have found a method for measuring the probative worth of such narratives.
`Whether or not the narrative tells a “coherent story” does not seem to work. 89 Perhaps in some cases the judge can try to
`assess the degree to which the story matches the “schema” the jurors will likely apply to such stories. 90
`Though we have found no cases, in “abductive reasoning” probative worth will turn on how well this “piece” fits the “puzzle.”
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`Westlaw. © 2015 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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`Footnotes
`a388
`a409
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`Professor Of Law Emeritus, University of California, Los Angeles.
`Professor Of Law Emeritus, University of California, Los Angeles.
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` © 2015 Thomson Reuters. No claim to original U.S. Government Works.
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`Debates
`Wigmore, The Science of Judicial Proof, §§ 320–321 (3d ed.1937).
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`“Direct” defined
`See § 5162.1.
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`Jury will believe
`Mueller & Kirkpatrick, Federal Evidence, p. 480 (2d ed.1994); 7 Krate-Dore', Iowa Practice: Evidence, p. 199 (2012-2013);
`Lawson, The Kentucky Evidence Law Handbook, p. 58 (3d ed.1993) (judge must assess probative value assuming truth); 1
`McClain, Maryland Evidence: State and Federal, p. 553 (2d ed. 2001) (or reliability); 1 Cleckley, Handbook on Evidence for
`West Virginia Lawyers, p. 238 (3d ed.1994); Ehrhardt, Florida Evidence, p. 200 (2012); 12 Miller, Indiana Practice: Indiana
`Evidence § 403.101, p. 280 (2d ed.1995) (must assume jury will believe).
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`See also
`Imwinkelreid, The Meaning of Probative Value and Prejudice in Federal Rule of Evidence 403, 41 Vand.L.Rev. 879, 886
`(1988) (collecting cases); Comment, Prop.N.Y.Evid.Code § 403 (rule “does not permit exclusion of evidence because the
`court does not find it credible”).
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`But see
`Gold, Limiting Judicial Discretion to Exclude Prejudicial Evidence, 18 U.C.D.L.Rev. 59 (1984) (criticizing this position).
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`Courts enforce
`See, e.g., U.S. v. Evans, 728 F.3d 953, 963 (9th Cir. 2013) (error for judge to exclude evidence because he thinks testimony
`of prosecution witnesses more credible than an official document; analyzing cases and collecting authorities); U.S. v. Gatto,
`924 F.2d 491, 500 (3d Cir. 1991) (testimony of eyewitness to murder had so much probative value it could not be outweighed
`by any prejudice from hypnosis or suggestive police questioning); Western Industries, Inc. v. Newcor Canada Ltd., 739 F.2d
`1198, 1202 (7th Cir. 1984) (judge does not have power under Rule 403 to screen out witnesses simply because he thinks their
`testimony does not deserve much weight); Ballou v. Henri Studios, Inc., 656 F.2d 1147, 1153 (5th Cir. 1981) (trial court must
`assess probative value of testimony assuming its truth; Rule 403 does not empower the judge to exclude evidence because
`he does not find it credible); U.S. v. Thompson, 615 F.2d 329, 333 (5th Cir. 1980) (same); Bowden v. McKenna, 600 F.2d
`282, 285 (1st Cir. 1979) (“probative value” under Rule 403 means the value of testimony if it is believed, not the degree to
`which the court finds it believable).
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`State cases
`Ex parte Brown, 74 So. 3d 1039, 1049 (Ala. 2011) (child's testimony about murder seven years in the past when she was four-
`years-old not prejudicial or likely to mislead the jury; reliability of child's memory a question for the jury).
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`But see
`The SCO Group, Inc. v. Novell, Inc., 439 Fed. Appx. 688, 695 (10th Cir. 2011) (proper to forbid cross-examination of
`witnesses who lacked personal knowledge of the subject).
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`Courts overlook
`U.S. v. Hatfield, 466 Fed. Appx. 775, 778 (11th Cir. 2012) (apparently excluding defense witness for lack of credibility); U.S.
`v. Bedonie, 913 F.2d 782, 801 (10th Cir. 1990) (overlooking this point); U.S. v. Ramirez, 871 F.2d 582, 584 (6th Cir. 1989)
`(dictum: court could use Rule 403 to exclude drug users' testimony); Douglas v. State, 151 P.3d 495, 500 (Alaska Ct. App.
`2006) (court could use Rule 403 to bar defense testimony about victim's false accusations); People v. Brown, 111 Cal. App.
`3d 523, 168 Cal. Rptr. 806 (2d Dist. 1980) (court could use Cal.Evid.Code § 352 to exclude evidence based on testimony
`of defendant that the judge does not believe).
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`Mistake
`In addition to the constitutional argument in the text, if the judge did have power to make credibility determinations she could
`hardly do this without hearing all the testimony of the witness plus any impeaching and rebuttal evidence; Rule 403, on the
`other hand, presupposes that the judge can do the balancing quickly at the time the evidence is proffered.
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`Hearsay “direct”?
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`§ 5214.2“Probative value”—As Applied in the Courts, 22A Fed. Prac. & Proc. Evid. §...
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`To take the easy case first, when one witness testifies to a hearsay statement of another person, that testimony is “direct”
`evidence of the making of the statement and the credibility of the testimony goes to the jury. But Rule 104 gives the judge the
`power to decide if the hearsay rule allows the jury to use the statement—a decision that seems prior to any Rule 403 ruling.
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`See also
`Ponce v. Billington, 679 F.3d 840, 847 (D.C. Cir. 2012) (proper to exclude report finding that plaintiff had been discriminated
`against as “prejudicial” because the analysis was “extraordinarily weak”).
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`Witness made statement
`Woods v. Zeluff, 2007 UT App 84, 158 P.3d 552, 555 n.3 (Utah Ct. App. 2007) (error to exclude malpractice defendant's
`admission of liability because he denied making it; credibility determination for the jury, not the judge).
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`Varying positions
`U.S. v. Arledge, 553 F.3d 881, 893 (5th Cir. 2008) (FBI list of others suspected of filing false claims against class action fund
`excluded as not reliable evidence that defendant was the sole perpetrator of this scam); MMG Ins. Co. v. Samsung Electronics
`America, Inc., 293 F.R.D. 58, 66 (D.N.H. 2013) (internet complaints about product have low probative value to impeach
`expert's testimony that product could not cause fires); U.S. ex rel. Milam v. Regents of University of California, 912 F. Supp.
`868, 880 (D. Md. 1995) (admission of party on the precise issue highly probative).
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`Leave to trial judge
`Pollard v. Metropolitan Life Ins. Co., 598 F.2d 1284, 1286 (3d Cir. 1979) (using testimony of witness to denigrate probative
`worth of his prior hearsay statements).
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`Exclude hearsay
`State v. Weymouth, 496 A.2d 1053, 1056 (Me. 1985) (evidence that victim recanted her accusation excluded on the ground
`that in light of defendant's confession, it would only confuse the jury); Chouman v. Home Owners Ins. Co., 293 Mich. App.
`434, 810 N.W.2d 88, 91 (2011) (defendant's consent to settlement has so little probative value that court should use Rule 430
`to exclude it; unclear whether court means because incredible or as a matter of Rule 408 policy).
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`“Autoptic proference”
`1 Wigmore, Evidence, § 24 (3d ed.1940).
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`“Exceptional case”
`1 Morgan, Basic Problems of Evidence, p. 189 (1961).
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`Rule 104(b)
`Since the question belongs to the jury, the judge could exclude for lack of authentication only if no reasonable jury could
`find the corpse authentic. This implies that the judge cannot exclude evidence of authenticity using Rule 403 unless it met
`a similar standard of probative worth.
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`Not “consequential”
`The corpse would be circumstantial evidence that the victim died some time in the past.
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`“Epistemic condition”
`Michael & Adler, Real Proof, 5 Vand.L.Rev. 344, 361–362 (1952).
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`Ignoring
`4 Wigmore, Evidence, § 1150 (3d.ed.1940).
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`Objects distinctive
`As we explained in our discussion above of so-called “autoptic proference”, objects can seldom qualify as “direct evidence”
`so they will raise the same problems of probative value as all other circumstantial evidence.
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`Consequential
`As explained above, the quality of an object rarely qualifies as a “consequential fact.”
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`“Epistemic condition”
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`Michael & Adler, Real Proof, 5 Vand.L.Rev. 344, 361–362 (1952).
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`See also
`Armstrong v. State, 73 So. 3d 155, 156 (Fla. 2011) (proper to admit vial of blood taken from slain police officer's heart that
`was used to match blood found in defendant's car; court does not explain what jurors could perceive in viewing vial).
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`Like credibility
`See text at notecall 3, above.
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`Not “probative”
`If it were, we might expect the judge to look to the ability of the jurors to perceive “demeanor” in assessing the probative
`value of testimonial evidence. But as we have already seen, credibility in all its manifestations is for the jury, not the judge.
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`Proves “nothing”
`For example, courts regularly exclude untranslated documents in a foreign language. See § 5173, n. 28.
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`Policy
`Courts cannot consider credibility in Rule 403 rulings, in part because the judge, unlike the jury, cannot wait until the end
`of the trial to determine whether or not to believe a witness. But judge has defective perception, she can see at once whether
`the jury can perceive some quality of an object. In this respect, credibility differs from perceptibility in the same way that a
`witness who speaks English poorly differs from a witness who cannot speak English at all.
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`Degree of perceptibility
`For example, some jurors, but not all, may be able to feel the difference between two objects or smell a particular scent or
`hear an indistinct sound on a recording.
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`Courts grasp
`See § 5173, n. 29.
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`Alternative
`U.S. v. Castaldi, 547 F.3d 699, 704 (7th Cir. 2008) (questioning need for use of mug shots to depict defendants when names
`on chart would have sufficed or could have used photos from DMV, but finding no abuse of discretion in admitting).
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`Both
`For example a shirt found in defendant's closet similar to the one stolen from a retailer that reeks of marijuana.
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`Answer
`For cases and commentary on the use of alternative measures in Rule 403 balancing, see § 5222, below.
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`“Need for”
`Advisory Committee's Note. Fed. R. Evid. 403 (emphasis added).
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`Intent clear
`See, e.g., Milich, Georgia Rules of Evidence, p. 127 (2013-2014) (probative value equals the logical force of the evidence plus
`the need for it); Hess & Hyatt, Colorado Handbook on Evidence, p. 66 (2009-2010) (“probative value” means “incremental
`value relative to other evidence, logical force, and need”).
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`Into rule
`California courts managed to do this without the Note. See, e.g., People v. Delgado, 32 Cal. App. 3d 242, 249, 108 Cal. Rptr.
`399, 404–405 (4th Dist. 1973) (“Thus, how much ‘probative value’ proffered evidence has depends upon the extent to which it
`tends to prove an issue by logic and reasonable inference (degree of relevancy), the importance of the issue to the case (degree
`of materiality), and the necessity of proving the issue by means of this particular piece of evidence (degree of necessity).”).
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`Intrinsic worth
`The court seems to have this meaning in mind in State v. Fong, 226 Or. App. 493, 204 P.3d 146, 149 (2009) (where defendant
`charged with DUI, evidence of marijuana metabolites in urine admissible without quantifying amount of the controlled
`substance).
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`Cases use
`U.S. v. Layton, 767 F.2d 549, 555 (9th Cir. 1985) (probative value weak where less prejudicial evidence available); U.S.
`v. Curcio, 759 F.2d 237, 241 (2d Cir. 1985) (if evidence not needed, then prejudice outweighs probative worth); U.S. v.
`King, 713 F.2d 627, 631 (11th Cir. 1983) (the greater the need for the evidence, the greater its probative value); Gross v.
`Black & Decker (U.S.), Inc., 695 F.2d 858, 863 (5th Cir. 1983) (in weighing probative value, courts must first look to the
`need for the evidence); Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 782 (5th Cir. 1983) (where defense had other ways
`to show plaintiff's emotional problems were not caused by wife's death, prejudice from evidence of remarriage outweighed
`probative worth); U.S. v. Gonsalves, 668 F.2d 73, 75 (1st Cir. 1982) (where defendant had strong alibi, prosecutor's needed to
`prove his threats to witnesses to show consciousness of guilt); U.S. v. Poludniak, 657 F.2d 948 (8th Cir.1981) (in blackmail
`prosecution, court properly refused to limit prosecutor's to proof that defendant threatened to reveal “damaging information”
`where note showed defendant threatened to damage Senator's reputation with false charges of hanky-pank); Lies v. Farrell
`Lines, Inc., 641 F.2d 765, 773 (9th Cir. 1981) (proper to exclude misleading demonstrative evidence where plenty of more
`reliable evidence had been admitted on the same point); U.S. v. Grassi, 602 F.2d 1192, 1195 (5th Cir. 1979) (need for evidence
`a central consideration in determining probative value); U.S. v. Fosher, 568 F.2d 207, 215 (1st Cir. 1978) (cannot introduce
`mug shots without demonstrable need); State v. Martin, 704 N.W.2d 665, 672 (Iowa 2005) (need for evidence was weak
`where it tended to prove a peripheral issue); Walters v. State, 720 So. 2d 856, 862 (Miss. 1998) (gory videotape properly
`admitted where it was the only evidence available to rebut claim of self-defense); State v. Hickam, 71 Or. App. 471, 692 P.2d
`672, 677 (1984) (in applying Rule 403, court must balance need for evidence and its persuasiveness against inflammatory
`effect on jury); State v. Kendrick, 47 Wash. App. 620, 736 P.2d 1079, 1084 (Div. 1 1987) (chain of inferences from tattoo
`to identity of murderer, though long, had high probative value because of scarce other evidence of identity of killer); State
`v. Cameron, 100 Wash. 2d 520, 674 P.2d 650 (1983) (where defense was insanity and prosecutors had two confessions and
`physical evidence to identify the killer, it was abuse of discretion to admit two pubic hairs found on victim that might have
`come from defendant to prove identity of killer).
`
`But see
`Hampton v. State, 103 So. 3d 98, 114–115 (Fla. 2012) (gory photos admissible even if there is no need for them).
`
`Implicit in “cumulative”
`See §§ 5219, 5220, below.
`
`“Double-counting”
`That is, the court discounts the probative worth and enhances the prejudice as the court seems to do in Wetherill v. University
`of Chicago, 565 F. Supp. 1553, 1563 (N.D. Ill. 1983) (because proffered evidence only weakly supported the inference offeror
`intended to make, it was prejudicial and likely to confuse the jury).
`
`Post-balancing discretion
`See § 5214, above, text at notecall 10.
`
`Read this way
`See, e.g., Thor v. Boska, 38 Cal. App. 3d 558, 113 Cal. Rptr. 296, 303 n.8 (2d Dist. 1974) (among factors to be considered
`in exercising discretion under Cal.Evid.Code § 352 are relevance to disputed issue, availability of other proof on that issue to
`the offeror, and the greater need for