Relevance and unfair prejudice

The Rule 401 Gate: Probability, Consequence, and Conditional Proof

Evidence is relevant under Federal Rule of Evidence 401 only if it satisfies both requirements: it has some tendency to make a fact more or less probable than the fact would be without the evidence, and that fact is of consequence in determining the action.

The first requirement is deliberately modest. Evidence need not prove the fact, make the fact probable overall, or address the ultimate issue directly. Circumstantial evidence qualifies if it changes probability even slightly. The second requirement is the materiality requirement: the fact must matter under the governing law and the issues actually being litigated. Evidence can fail either requirement. A fact may be material but unaffected by the evidence, or the evidence may change probability regarding a fact that does not matter to the claim or defense.

Rule 402 supplies the consequence. Irrelevant evidence is inadmissible; relevant evidence is admissible unless the Constitution, a federal statute, the Federal Rules of Evidence, or another rule prescribed by the Supreme Court provides otherwise. Thus, relevance is necessary but not sufficient for admission.

A near miss is weak evidence versus irrelevant evidence. A surveillance video that makes identity only slightly more probable is relevant and proceeds to the other admissibility screens. A video that shows only the weather on the day of the crime may be interesting but irrelevant if weather has no bearing on any fact of consequence.

Conditional relevance is a different problem. Under Rule 104(b), relevance depends on whether another fact exists-for example, whether a particular object is the one used in the crime. The judge does not finally decide that conditional fact. The judge asks whether sufficient evidence exists for a reasonable juror to find it, and may admit the evidence on condition that the connecting proof be introduced later. If the required connecting proof never arrives, the evidence cannot remain in the case.

Rule	Triggering question	Immediate consequence
Rule 401	Does the evidence change probability regarding a consequential fact?	Evidence is relevant if both requirements are met.
Rule 104(b)	Does relevance depend on a fact that must be connected later?	Admit only if a reasonable juror could find the conditional fact, subject to later proof.
Rule 402	Is the evidence irrelevant?	Irrelevant evidence is inadmissible.
Rule 403	Is a listed danger substantially greater than probative value?	The court may exclude otherwise relevant evidence.

Run the questions in this order:

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This is closed-book: you must be able to state Rule 401’s two requirements cold.

The Stipulation Trap: Relevant Proof Can Still Be Excluded

An offer to stipulate does not automatically make opposing evidence irrelevant. The evidence may still concern a fact of consequence and fit the proof of the case. Relevance is not destroyed merely because the opponent offers an alternative way to establish the same fact.

The stipulation does matter at the Rule 403 stage. If the stipulation establishes a status element conclusively, additional details may add little incremental proof. The court then compares that reduced probative value with the dangers created by the details. In a prosecution requiring proof that the defendant previously had a qualifying felony conviction, a defendant’s stipulation to that status can make the name and violent facts of the prior offense far less valuable as proof while leaving their emotional impact substantial. The judge may therefore exclude the details under Rule 403 without treating them as irrelevant under Rule 401.

Keep these two propositions separate:

“The stipulation makes the evidence irrelevant.” Usually wrong. It confuses reduced incremental value with failure of the Rule 401 relevance test.
“The stipulation is irrelevant to admissibility.” Also wrong. It may sharply reduce the evidence’s probative value for Rule 403 purposes.

Rule 403 permits exclusion of relevant evidence when its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. “Substantially outweighed” is the trigger; a small disadvantage is not enough.

Unfair prejudice means an improper basis for decision, such as an emotional reaction, hostility, or a desire to punish rather than a reasoned evaluation of the disputed fact. Evidence is not unfairly prejudicial merely because it is damaging. A photograph that strongly supports identity but also makes the defendant look bad is not excluded automatically. The question is whether the emotional or improper route substantially overwhelms the legitimate evidentiary value.

Confusion of the issues concerns the jury’s ability to identify and decide the actual disputes. Evidence may create a distracting collateral controversy-for example, proof of a side transaction that would require a mini-trial about an issue unrelated to liability. Confusion is not the same as complexity. Difficult evidence can remain admissible if the jury can use it accurately and its value justifies the difficulty.

Wasting time includes undue delay and needlessly cumulative presentation. Several witnesses may each add distinct force, so repetition alone does not require exclusion. The danger arises when marginal proof consumes disproportionate trial time or repeats an already established point without meaningful additional value. Rule 403, not a general preference for a shorter trial, supplies the authority to exclude.

The offer to stipulate is especially important when it supplies a complete alternative proof of a narrow status fact. It does not give the offering party control over every aspect of the opponent’s presentation, but it can make details unnecessary and therefore vulnerable under Rule 403. The judge may consider the evidentiary alternative while balancing; the alternative does not convert the evidence into a Rule 401 nullity.

Recurring errors:

Calling a certified prior-conviction judgment irrelevant solely because the defendant offered to stipulate confuses Rule 401 with Rule 403.
Calling every graphic photograph unfairly prejudicial ignores the requirement that the danger substantially outweigh probative value.
Calling evidence confusing merely because it is complicated ignores whether the jury is likely to misapply it or become distracted by a collateral issue.
Calling repeated testimony wasteful without asking whether it is needlessly cumulative skips Rule 403’s comparative judgment.

The Six-Choice Application: When a Stipulation Changes the Balance

The item below requires two answers. The key is to identify the separate conclusions: the stipulation does not automatically defeat relevance, but it can substantially reduce probative value for Rule 403.

Dana is charged in federal court with possessing a firearm after a felony conviction.

The only disputed element addressed by prior-conviction proof is whether Dana previously was convicted of a felony punishable by more than one year.

Dana offers to stipulate to that status.

The government wants to introduce a certified judgment identifying Dana’s prior conviction for armed bank robbery and testimony describing Dana’s shooting of a guard during that robbery.

The judge finds that the stipulation would establish the status element and that the details create a substantial risk that jurors will decide from anger rather than reasoned evaluation.

Practice

Which TWO statements are most accurate?

	(A) Dana’s offer automatically makes the certified judgment and testimony irrelevant under Rule 401.	(B) Dana’s offer does not automatically make the proposed evidence irrelevant under Rule 401.	(C) Because the proposed evidence is relevant, Rule 403 requires the judge to admit it.	(D) The government must introduce the details because a party offering a stipulation can never affect the evidence’s probative value.	(E) The judge may exclude the robbery details under Rule 403 because the stipulation sharply reduces their incremental proof while the details invite an improper emotional decision.	(F) Rule 403 permits exclusion only when evidence is wholly irrelevant or proves nothing.
Your answers

Three Fast Calls: Probability, Prejudice, and Trial Cost

Practice

A witness saw Lee discard a red backpack shortly after a robbery. Other evidence suggests that the robber used a red backpack, but the prosecution has not yet connected the discarded backpack to the robbery. May the witness’s testimony be admitted, and on what condition?

A prosecution offers a graphic photograph of a victim’s burned body in an arson trial. The parties stipulate to the victim’s death and the cause of death, and identity is proved by uncontested video. May the court exclude the photograph?

In a contract dispute, the only contested issue is whether timely notice was sent. One party offers two hours of testimony about a collateral formatting dispute and then proposes five witnesses who would repeat the same uncontested account of mailing. May the court exclude some of the proof?

High-Yield Points - ⚡ Biggest Takeaways

An offer to stipulate changes Rule 403 value; it does not automatically erase Rule 401 relevance. Unfair prejudice means an improper emotional or decisional route, not merely evidence that hurts. Confusion and waste justify exclusion only when their danger substantially outweighs probative value under Rule 403.

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Practice Questions: Relevance and unfair prejudice

1. A factory worker brought a negligence action against an equipment leasing company after the worker's hand passed through an opening beside a blade on a machine the leasing company had supplied and serviced. Two months after the accident, the leasing company added a wider guard to the machine. The worker proposes to introduce evidence of that change. The leasing company disputes that it had control over maintaining the machine at the time of the accident, contending that the factory owner alone was responsible for its upkeep. The worker argues that the evidence should be admitted specifically to establish control. Which of the following best states how the court should rule?

A. Admit the evidence to show that the leasing company had control over the machine because the leasing company disputes control.
B. Admit the evidence to prove that the leasing company was negligent because the replacement reduced the risk.
C. Exclude the evidence because post-accident remedial measures are inadmissible for every purpose.
D. Exclude the evidence because control is irrelevant whenever a plaintiff alleges negligent maintenance.

Show answer

Answer: A. Admit the evidence to show that the leasing company had control over the machine because the leasing company disputes control.

Admit the evidence to show that the leasing company had control over the machine because the leasing company disputes control. - Adding a wider guard two months later was a subsequent remedial measure, but Rule 407 permits such evidence to prove control when control is disputed. - Because the leasing company denies responsibility for maintaining the machine at the time of the accident, its later alteration is relevant to control, not proof of negligence. Admit the evidence to prove that the leasing company was negligent because the replacement reduced the risk. - A wider guard may have reduced the risk of a hand reaching the blade, but Rule 407 bars using the later change to prove negligence. - The worker’s stated purpose—establishing disputed control—is what makes the evidence admissible. Exclude the evidence because post-accident remedial measures are inadmissible for every purpose. - Rule 407 does not impose an absolute bar: a subsequent remedial measure may be admitted to prove control when that issue is disputed. - The leasing company’s claim that the factory owner alone handled upkeep makes that exception applicable here. Exclude the evidence because control is irrelevant whenever a plaintiff alleges negligent maintenance. - Control matters to a negligent-maintenance claim because it bears on who was responsible for maintaining the machine. - The leasing company expressly disputes that responsibility, so its addition of the guard has a permissible evidentiary purpose.

2. A pedestrian sued a delivery company after one of its vans struck her in a crosswalk. The company disputes whether the pedestrian entered the crosswalk against the signal. The pedestrian offers testimony from a traffic engineer that, during an inspection conducted two weeks after the collision at the same time of day, a tree partially blocked drivers’ view of the pedestrian signal. Weather records show that there had been no storm or pruning between the collision and inspection, and photographs taken on both dates show the tree in substantially the same condition. The company objects that the inspection occurred after the collision and that the testimony may cause jurors to decide the case based on a different event. The pedestrian offers the testimony to show what the driver could see when approaching the crosswalk. Is the court likely to admit the testimony?

A. Yes, because the inspection conditions were shown to be substantially similar, and the testimony is probative of the driver’s ability to see the signal.
B. Yes, because relevant evidence cannot be excluded merely because it may influence the jury’s assessment of a disputed fact.
C. No, because observations made after an accident are inadmissible unless the opposing party attended the inspection.
D. No, because the later inspection creates unfair prejudice that substantially outweighs its probative value.

Show answer

Answer: A. Yes, because the inspection conditions were shown to be substantially similar, and the testimony is probative of the driver’s ability to see the signal.

Yes, because the inspection conditions were shown to be substantially similar, and the testimony is probative of the driver’s ability to see the signal. - The engineer’s observation is probative of visibility because the photographs show the tree in substantially the same condition on the collision and inspection dates. - The absence of storms or pruning supports admitting the later observation; the two-week gap goes to its weight. Yes, because relevant evidence cannot be excluded merely because it may influence the jury’s assessment of a disputed fact. - The testimony is relevant because it helps establish what the driver could see when approaching the crosswalk. - But relevant evidence can be excluded under Rule 403 if a qualifying danger substantially outweighs its probative value. No, because observations made after an accident are inadmissible unless the opposing party attended the inspection. - The company’s attendance is not a prerequisite to admitting the engineer’s observations. - The pertinent question is whether conditions at the later inspection were sufficiently similar to those at the collision. No, because the later inspection creates unfair prejudice that substantially outweighs its probative value. - Jurors drawing an inference about visibility from the engineer’s testimony is its proper evidentiary use, not unfair prejudice. - The substantially unchanged tree supports probative value, and the record identifies no Rule 403 danger that substantially outweighs it.

3. A delivery driver sued a warehouse owner after a loading-platform railing collapsed. Two days after the accident, the owner replaced the railing and added warning signs. At trial, the owner denies owning the platform and contends that a neighboring business controlled it. The driver offers the owner's work order directing employees to replace "our damaged platform railing." The driver states that the work order is offered only to prove ownership and control, not negligence or culpable conduct. The owner objects that evidence of repairs made after an accident is inadmissible. Which of the following best states how the court should rule?

A. Exclude the work order because evidence of a subsequent repair is inadmissible for every purpose.
B. Admit the work order because ownership or control is disputed and the evidence is offered for that permitted purpose.
C. Exclude the work order unless the driver first proves that the owner acted negligently before making the repair.
D. Admit the work order as proof that the original railing was defective because the repair acknowledges the defect.

Show answer

Answer: B. Admit the work order because ownership or control is disputed and the evidence is offered for that permitted purpose.

Admit the work order because ownership or control is disputed and the evidence is offered for that permitted purpose. - Rule 407 permits evidence of a subsequent remedial measure to prove ownership or control when that issue is disputed. - The owner denies controlling the platform, and the work order’s reference to “our damaged platform railing” bears on that dispute; the court may limit the jury to that use. Exclude the work order because evidence of a subsequent repair is inadmissible for every purpose. - Rule 407 does not bar subsequent-repair evidence for every purpose. - Because the owner disputes ownership and control, the driver may offer the work order on those issues rather than to prove negligence. Exclude the work order unless the driver first proves that the owner acted negligently before making the repair. - Rule 407 imposes no requirement that the driver first prove negligence to use the work order for disputed control. - The driver’s stated purpose is to show who controlled the platform, not whether the owner acted negligently. Admit the work order as proof that the original railing was defective because the repair acknowledges the defect. - Rule 407 does not permit the driver to use the replacement as proof that the original railing was defective. - The work order may be considered for disputed ownership or control, but the repair cannot be treated as an admission of liability.

4. A factory worker brought a negligence action against a press manufacturer after the press crushed his hand. The worker claims that the press should have included a fixed barrier preventing an operator's hand from reaching the compression area. After the accident, the manufacturer added such a barrier to newly produced presses. Before trial, the manufacturer's expert testified that adding a fixed barrier to this model was not technically feasible because it would prevent operators from positioning materials. The worker seeks to introduce evidence of the post-accident design change solely to rebut that testimony. The manufacturer objects that the change is a subsequent remedial measure and that the jury might misuse it as proof of negligence. Is the court likely to admit the evidence?

A. Yes, because the manufacturer disputed feasibility and the court may give a limiting instruction restricting the jury's use of the evidence.
B. Yes, because subsequent remedial measures are excluded only when undertaken by someone other than the defendant.
C. No, because a subsequent design change is inadmissible for every purpose when it could suggest earlier negligence.
D. No, because feasibility evidence is admissible only if the manufacturer expressly stipulated that the original design was unsafe.

Show answer

Answer: A. Yes, because the manufacturer disputed feasibility and the court may give a limiting instruction restricting the jury's use of the evidence.

Yes, because the manufacturer disputed feasibility and the court may give a limiting instruction restricting the jury's use of the evidence. - Under Federal Rule of Evidence 407, a subsequent design change may be admitted to prove feasibility when feasibility is disputed; the manufacturer’s expert testified that a fixed barrier would prevent operators from positioning materials. - The court may give a limiting instruction allowing the jury to consider the new barrier on feasibility, but not as proof that the manufacturer was negligent. Yes, because subsequent remedial measures are excluded only when undertaken by someone other than the defendant. - Rule 407 generally restricts the use of a defendant’s subsequent remedial measures to prove negligence; it does not apply only to measures taken by someone else. - The manufacturer’s change may be admitted here because its expert disputed feasibility, not because the manufacturer was exempt from the rule. No, because a subsequent design change is inadmissible for every purpose when it could suggest earlier negligence. - Rule 407 does not bar a subsequent remedial measure for every purpose merely because a jury might also view it as evidence of negligence. - The worker offers the added barrier solely to rebut the expert’s claim that such a barrier was not technically feasible, a permitted purpose when feasibility is disputed. No, because feasibility evidence is admissible only if the manufacturer expressly stipulated that the original design was unsafe. - A stipulation that the original design was unsafe is not required to admit a subsequent measure to prove disputed feasibility. - The expert’s testimony that a fixed barrier would interfere with positioning materials itself placed feasibility in dispute.

5. A pedestrian sued a grocery store in federal court after tripping over an unguarded loading-ramp edge. The pedestrian alleges that the store negligently failed to install a protective railing. At trial, the store's facilities director testifies that the store did not own or control the loading ramp because that portion of the property had been leased to an independent contractor responsible for its maintenance. The pedestrian then offers evidence that, one week after the accident, the store's own maintenance crew installed a protective railing on the ramp. The pedestrian offers the evidence only to rebut the director's assertion that the store lacked control over the ramp. The store objects under the rule excluding subsequent remedial measures. Which of the following is the court's most appropriate ruling?

A. Exclude the evidence because subsequent remedial measures cannot be admitted for any purpose in a negligence action.
B. Exclude the evidence because control is relevant only if the store expressly concedes that it controlled the ramp.
C. Admit the evidence for the limited purpose of proving control because the store placed control in dispute.
D. Admit the evidence as substantive proof that the store was negligent because the later repair establishes the applicable standard of care.

Show answer

Answer: C. Admit the evidence for the limited purpose of proving control because the store placed control in dispute.

Admit the evidence for the limited purpose of proving control because the store placed control in dispute. - Federal Rule of Evidence 407 permits a subsequent remedial measure to prove control when control is disputed, and the facilities director denied that the store controlled the ramp. - The store’s own crew installed the railing, making that work relevant to control; if requested, the court should instruct the jury to consider it only for that purpose. Exclude the evidence because subsequent remedial measures cannot be admitted for any purpose in a negligence action. - Rule 407 bars using the later railing installation to prove negligence, but it does not bar every use of that evidence. - The pedestrian offers the crew’s work to rebut the director’s denial of control, a permitted use. Exclude the evidence because control is relevant only if the store expressly concedes that it controlled the ramp. - The director’s testimony that an independent contractor controlled the ramp disputes control rather than conceding it. - That dispute is why the store’s subsequent installation of a railing can be considered as evidence of control. Admit the evidence as substantive proof that the store was negligent because the later repair establishes the applicable standard of care. - Rule 407 prohibits using the later railing installation as proof that the store acted negligently before the accident. - The crew’s work may bear on who controlled the ramp, but it does not establish the applicable standard of care.

6. A factory worker brought a products-liability action against the manufacturer of a conveyor belt system after the worker's arm was caught in an unguarded pinch point. The worker alleges that the system was defectively designed because a readily available guard could have prevented the injury. At trial, the manufacturer's plant supervisor testified, "We never even considered adding a guard to that pinch point because we didn't think one was necessary." The worker then offered evidence that, one month after the accident, the manufacturer added a guard over the pinch point on the same model of conveyor system. The manufacturer objected. The worker stated that the evidence was offered only to impeach the supervisor's testimony that a guard had never been considered, not to prove negligence or a defective design. How should the court rule?

A. Admit the evidence because it may be used to impeach the supervisor's testimony that a guard was never considered.
B. Admit the evidence because post-accident design changes are substantive proof that the earlier design was defective.
C. Exclude the evidence because a later safety measure cannot be used for any purpose in a products-liability action.
D. Exclude the evidence because later design changes are privileged communications prepared in anticipation of litigation.

Show answer

Answer: A. Admit the evidence because it may be used to impeach the supervisor's testimony that a guard was never considered.

Admit the evidence because it may be used to impeach the supervisor's testimony that a guard was never considered. - The supervisor’s categorical statement that the manufacturer never considered a guard is open to impeachment with evidence that the manufacturer later added one to the same model. - The court may admit the later change for that limited impeachment purpose, not as proof that the earlier design was defective. Admit the evidence because post-accident design changes are substantive proof that the earlier design was defective. - Under the subsequent-remedial-measures rule, adding a guard after the accident cannot be used to prove a product defect. - The worker offered the change to challenge the supervisor’s testimony, not as substantive proof that the unguarded pinch point was defective. Exclude the evidence because a later safety measure cannot be used for any purpose in a products-liability action. - The rule is not an absolute bar: a subsequent measure may be admitted for a permitted purpose such as impeachment. - Here, the worker identified the supervisor’s statement that a guard was never considered as the testimony to be impeached. Exclude the evidence because later design changes are privileged communications prepared in anticipation of litigation. - Adding a guard is a design change, not a privileged communication. - Nothing in the facts establishes that evidence of the change was prepared in anticipation of litigation.

7. A warehouse worker brought a federal products-liability action against a forklift manufacturer after being struck when the forklift backed over his foot. The worker alleged that the forklift should have included a rear-facing camera system to alert operators to obstacles behind the vehicle. During discovery, the manufacturer asserted that such a camera system could not be reliably installed given the dust and vibration present in typical warehouse environments. Three months after the accident, the manufacturer began selling the same forklift model equipped with a rear-facing camera system rated for dusty, high-vibration conditions. The worker offers the redesigned camera system solely to rebut the manufacturer's feasibility assertion. The manufacturer objects that the redesign was a subsequent remedial measure and also argues that displaying it would unfairly prejudice the jury. Which of the following is the strongest response to the objection?

A. The camera system is inadmissible because post-accident safety changes cannot be used for any purpose.
B. The camera system is admissible because later safety changes are direct evidence that the original forklift was defective.
C. The camera system is admissible to address feasibility because the manufacturer disputed that a workable camera system could be installed.
D. The camera system is inadmissible unless the worker first proves that the manufacturer controlled the warehouse after the accident.

Show answer

Answer: C. The camera system is admissible to address feasibility because the manufacturer disputed that a workable camera system could be installed.

The camera system is admissible to address feasibility because the manufacturer disputed that a workable camera system could be installed. - Federal Rule of Evidence 407 permits a subsequent remedial measure to show feasibility when feasibility is disputed, and the manufacturer claimed a camera could not work reliably in dusty, high-vibration warehouses. - The later camera system addresses that claim; the court must still weigh its probative value against any risk of unfair prejudice under Rule 403. The camera system is inadmissible because post-accident safety changes cannot be used for any purpose. - Rule 407 does not impose an absolute bar: it permits evidence of a later change to show disputed feasibility. - The manufacturer's assertion that a reliable camera could not be installed makes that permitted purpose relevant here. The camera system is admissible because later safety changes are direct evidence that the original forklift was defective. - Rule 407 bars using the post-accident redesign to prove a product defect directly. - The worker instead offers the camera system solely to rebut the manufacturer's claim that installing a workable system was infeasible. The camera system is inadmissible unless the worker first proves that the manufacturer controlled the warehouse after the accident. - Control of the warehouse is not a prerequisite to admitting evidence that the manufacturer later sold the same forklift model with a camera. - The disputed issue is whether such a system could work under warehouse conditions, not who controlled the warehouse after the accident.

8. A customer sued a grocery store after slipping and falling on a wet floor in the produce aisle. The customer alleges that the store's flooring was unreasonably slippery. Two days after the fall, before any government investigation, the store replaced the flooring throughout the entire building with a non-slip surface. At trial, the store disputes both negligence and whether it controlled the produce aisle at the time of the fall but does not dispute that safer, non-slip flooring was technologically feasible. The customer offers evidence of the flooring replacement to prove that the original floor was unreasonably dangerous. The store objects. Which of the following best states how the court should rule?

A. Exclude the evidence because it is offered to prove culpable conduct through a subsequent remedial measure.
B. Admit the evidence because replacing the flooring tends to show that the earlier floor caused the fall.
C. Admit the evidence because the store disputes control of the aisle where the fall occurred.
D. Exclude the evidence under Rule 403 because remedial measures have no permissible evidentiary use.

Show answer

Answer: A. Exclude the evidence because it is offered to prove culpable conduct through a subsequent remedial measure.

Exclude the evidence because it is offered to prove culpable conduct through a subsequent remedial measure. - Replacing the flooring after the fall with a non-slip surface is a subsequent remedial measure because it could have made the fall less likely. - The customer offers it to prove the original floor was unreasonably dangerous, a use Rule 407 prohibits. Admit the evidence because replacing the flooring tends to show that the earlier floor caused the fall. - The replacement may support an inference about the earlier floor, but the customer offers that inference to prove the store’s culpable conduct. - Its relevance does not overcome Rule 407’s exclusion for that purpose. Admit the evidence because the store disputes control of the aisle where the fall occurred. - Control is disputed, and Rule 407 can permit remedial-measure evidence offered to prove control. - The customer instead offers the replacement to prove the original floor was unreasonably dangerous, so that exception does not justify admission for the stated purpose. Exclude the evidence under Rule 403 because remedial measures have no permissible evidentiary use. - Rule 407, not a conclusion that the evidence has no permissible use, governs the customer’s stated offer. - A subsequent measure may be admissible for another disputed purpose, such as control, even though it cannot be used here to prove culpable conduct.

Flashcards: Relevance and unfair prejudice

1. What are the 'Three Fast Calls' for evidence admissibility, and which rules do they invoke?

Show answer

The 'Three Fast Calls' are: 1) Probability (Rule 401 relevance, including conditional relevance under Rule 104(b)), 2) Prejudice (Rule 403 balancing, especially regarding unfair prejudice), and 3) Trial Cost (Rule 403 balancing, considering confusion, undue delay, or needlessly cumulative evidence).

2. When may a court exclude relevant evidence under FRE 403?

Show answer

The court may exclude relevant evidence when its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Unfair prejudice means an undue tendency to cause the jury to decide on an improper emotional or otherwise illegitimate basis.

3. What makes evidence relevant under the Federal Rules of Evidence?

Show answer

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 must be consequential to determining the action. Relevant evidence is generally admissible unless the Constitution, a statute, another rule, or Rule 403 provides otherwise.

4. Under FRE 702, what are the five alternative sources of qualification for an expert witness, and what does 'proposition-specific' qualification mean?

Show answer

An expert witness may be qualified by knowledge, skill, experience, training, or education. 'Proposition-specific' means the witness's qualifications must directly relate to the particular testimony being offered, not just a general impressive credential.

5. Under Rule 703, what are the permissible bases for an expert's opinion, and when may inadmissible underlying facts be disclosed to the jury?

Show answer

An expert may base an opinion on facts or data they personally observed, were made aware of, or that experts in the field would reasonably rely on. If the underlying facts are inadmissible, they may be disclosed to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

6. Under Rule 702, what four requirements must the proponent of expert testimony demonstrate for reliability, and by what standard of proof?

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The proponent must demonstrate, by a preponderance of the evidence, that: 1) the expert’s specialized knowledge will help the trier of fact; 2) the opinion is based on sufficient facts or data; 3) the testimony is the product of reliable principles and methods; and 4) the expert reliably applied those principles and methods to the facts of the case.

7. What are the three requirements for admissible lay opinion testimony under FRE 701?

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The opinion must be rationally based on the witness’s perception, helpful to understanding the testimony or determining a fact in issue, and not based on specialized knowledge within the scope of expert testimony. The witness must therefore be using ordinary observations rather than technical or scientific expertise.

8. What is the general rule against character evidence offered to prove conduct?

Show answer

Under the majority/FRE rule, character evidence is generally inadmissible when offered solely to prove that a person acted in accordance with that character on a particular occasion. Criminal-case exceptions permit a defendant to offer a pertinent trait and allow the prosecution to rebut it, subject to the applicable victim- and defendant-character rules.

Relevance and unfair prejudice

On this page

The Rule 401 Gate: Probability, Consequence, and Conditional Proof

The Stipulation Trap: Relevant Proof Can Still Be Excluded

The Six-Choice Application: When a Stipulation Changes the Balance

Three Fast Calls: Probability, Prejudice, and Trial Cost

High-Yield Points - ⚡ Biggest Takeaways

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Practice Questions: Relevance and unfair prejudice

Flashcards: Relevance and unfair prejudice

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