FreeQuick bite 01.01.06 · Library 01 · Evidence Fundamentals & Hearsay
Section 352 and Rule 403
Relevant, and still out
Evid. Code § 352 · FRE 403
Relevance gets evidence to the door. It does not get it through. What keeps it out is a margin, and the margin is deliberately lopsided.
Scroll the diagram sideways →
Federal · Rule 403
“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 issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
California · Section 352
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
The mistake is arguing that the evidence hurts. All good evidence hurts; that is what makes it worth offering. The danger these rules address is different—that the jury will do something with the evidence other than reason from it, or that the trial will be consumed by a side issue.
So the useful form of the objection is never “this is prejudicial.” It is: here is the improper use the jury will make of it, and here is how little the proper use is worth. Attack the numerator before the denominator—evidence that proves almost nothing is excluded on a modest showing of danger. Defending it works in reverse: you rarely win by calling the danger imaginary, you win by shrinking it with a limiting instruction, a redaction, or a stipulation.
Making it“Three-fifty-two, Your Honor. The probative value is minimal—the fact it goes to isn’t disputed—and the substantial danger is that the jury punishes my client for conduct that isn’t at issue.”
Defending it“It goes to [the disputed element], which they have put squarely in issue. If the Court has any concern, we’ll take a limiting instruction and redact lines four through nine.”
- “Prejudicial” without “unfair.”Every effective exhibit is prejudicial to someone. Name the improper basis or the objection is empty.
- Saving it for trial.Discretion is nearly unreviewable, and a judge who has heard the evidence will not unhear it. Argue it in limine.
- Thinking you conceded relevance.You did not. Both rules assume it.
Step five, with the full weighing analysis.
Same result, different route, in the two systems.
All five steps, side by side.
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