24.2 Relevance, Rule 403 & Real, Demonstrative & Illustrative Evidence

24.2 Relevance, Rule 403 & Real, Demonstrative & Illustrative Evidence

Relevance is the gateway to admissibility, and Rule 403 is the court's general tool for keeping relevant but harmful evidence out. NCBE's outline also tests the special foundations required for real, demonstrative, and experimental evidence, including illustrative aids under the 2024 amendment adding Rule 107.

---

The Relevance Threshold: FRE 401 & 402

Evidence is never admissible unless it meets the threshold requirement of logical relevance.

The Two Prongs of FRE 401

Evidence is relevant under FRE 401 if it satisfies two distinct prongs:

1. Probative Value (Tendency to Prove): It has any tendency to make a fact more or less probable than it would be without the evidence; AND
2. Materiality (Fact of Consequence): The fact is of consequence in determining the action under substantive law.

The Low Threshold

The threshold for logical relevance is extraordinarily low. The evidence does not need to prove the case, nor does it need to make a proposition more likely than not. As the advisory committee notes observe, "a brick is not a wall." Evidence is relevant if it serves as a single brick in establishing or refuting a consequential fact.

Admissibility Standard (FRE 402)

Under FRE 402, all relevant evidence is admissible unless excluded by:

• The United States Constitution;
• A federal statute;
• The Federal Rules of Evidence; or
• Other rules prescribed by the Supreme Court pursuant to statutory authority.

Irrelevant evidence is never admissible.

---

Rule 403 Balancing Exclusion

Even when evidence is logically relevant under Rule 401, it is subject to the universal exclusionary screening mechanism of FRE 403.

The Legal Standard

FRE 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.

Key Components of the Rule 403 Balancing Test

1. The Pro-Admissibility Tilt: Rule 403 strongly favors the admission of evidence. It does not require a 50/50 balance. Relevant evidence is excluded only if the countervailing dangers substantially outweigh its probative value. If probative value and danger are in equipoise, the evidence must be admitted.
2. Unfair Prejudice Defined: All effective evidence presented by an adversary is prejudicial in the sense that it damages the opponent's case. Rule 403 targets only unfair prejudice—an undue tendency to suggest a decision on an improper, emotional, irrational, or discriminatory basis (e.g., gruesome crime scene photographs that inflame passions without shedding light on disputed issues, or injecting racial or religious bias).
3. Less Prejudicial Alternatives: In balancing probative value against unfair prejudice, courts consider whether the proponent has alternative, less prejudicial evidentiary avenues to prove the identical fact (Old Chief v. United States).
4. Limiting Instructions (FRE 105): When evidence is admissible for one purpose but inadmissible for another, the court, upon timely request, must restrict the evidence to its proper scope and instruct the jury accordingly. The effectiveness of a limiting instruction is weighed in the Rule 403 balance.

MBE Pitfall — Unfair Surprise: Under the Federal Rules of Evidence, unfair surprise is NOT a ground for excluding evidence under Rule 403. If a party is surprised by unexpected witness testimony or exhibits disclosed on the eve of trial, the appropriate remedy is a request for a continuance, not exclusion under Rule 403.

---

Applying Relevance & Rule 403

Recurring Relevance Problems

• Similar incidents: Prior accidents at the same location or involving the same product may be admitted to show a dangerous condition, notice, or causation if the circumstances were substantially similar. Evidence of no prior accidents is admitted more cautiously and usually requires a showing of similar conditions and use.
• Consciousness of guilt: A defendant's flight, use of a false name, concealment or destruction of evidence, or threats against witnesses are relevant to show consciousness of guilt.
• Other claims: A plaintiff's prior lawsuits or claims are generally inadmissible to show that the current claim is fraudulent unless they show a common scheme of fabricated claims.
• Industry custom and comparable sales: Industry practice is relevant to the standard of care in negligence cases, and sales of similar property near the relevant time are relevant to value.

Rule 403 in Practice

• Gruesome photographs: Autopsy or injury photographs are often admitted when they help show the nature of injuries, cause of death, or the manner of the attack, even if disturbing; they are excluded when cumulative or offered primarily to inflame.
• Less prejudicial alternatives: In Old Chief v. United States (1997), a felon-in-possession defendant offered to stipulate that he had a qualifying prior felony. Admitting the name and nature of the prior assault conviction was an abuse of discretion because its only purpose was to prove felon status, which the stipulation fully established. The prosecution otherwise remains entitled to prove the events of the charged crime with evidence of its choosing.
• Cumulative evidence: A court may limit the number of witnesses who testify to the same point.
• Review: Rule 403 rulings are reviewed for abuse of discretion, and the effectiveness of a limiting instruction under Rule 105 is part of the balance.

Real, Demonstrative & Illustrative Evidence

Real Evidence

Real evidence is the actual object involved in the events, such as a weapon, a contract, or a defective part. It is authenticated by a witness who recognizes distinctive characteristics or, for fungible items such as drugs or blood samples, by a chain of custody showing the item was not altered or substituted. Minor gaps in the chain of custody usually go to weight, not admissibility.

Demonstrative Evidence and Experiments

• Photographs, maps, diagrams, and models offered as evidence need testimony from a witness with knowledge that they fairly and accurately represent what they depict. The photographer need not testify.
• Surveillance recordings with no human observer may be authenticated by evidence describing a reliable process or system that produced them (FRE 901(b)(9)), sometimes called the "silent witness" theory.
• Experiments and recreations offered to show how an event actually happened must be conducted under conditions substantially similar to the original event; experiments offered only to demonstrate general scientific principles need less similarity.
• Jury views of an accident scene or other location are within the court's discretion.
• Exhibiting injuries to the jury is allowed in the court's discretion, subject to Rule 403.

Illustrative Aids (FRE 107, effective December 1, 2024)

1. Standard (107(a)): The court may allow a party to present an illustrative aid to help the trier of fact understand the evidence or argument if the aid's utility in assisting comprehension is not substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time.
2. Not evidence (107(b)): An illustrative aid is not evidence and must not be provided to the jury during deliberations unless all parties consent or the court, for good cause, orders otherwise.
3. Record (107(c)): When practicable, an illustrative aid used at trial must be entered into the record.
4. Summaries distinguished (107(d)): A summary, chart, or calculation admitted under Rule 1006 to prove the content of voluminous records is evidence, not an illustrative aid (see Section 26.3).