Learning Outcomes
After reading this article, you will be able to identify when evidence is relevant, explain the concept of probative value, and recognize the main reasons relevant evidence may be excluded in MBE-style questions. You will also be able to apply the balancing test for excluding relevant evidence and distinguish between discretionary and policy-based exclusions.
MBE Syllabus
For MBE, you are required to understand the principles governing the admissibility of evidence, particularly the rules on relevancy and the exclusion of relevant evidence. This article focuses your revision on:
- The definition of relevant evidence and its probative value.
- The discretionary exclusion of relevant evidence when its probative value is substantially outweighed by certain dangers.
- The main policy reasons for excluding relevant evidence, such as subsequent remedial measures, settlement offers, and liability insurance.
- The application of the balancing test under FRE 403.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following is most likely to be excluded under FRE 403?
- (A) Evidence with high probative value and minimal risk of unfair prejudice.
- (B) Evidence with low probative value and a high risk of confusing the issues.
- (C) Evidence with moderate probative value and no risk of misleading the jury.
- (D) Evidence that is relevant and not otherwise excluded by rule.
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Which statement best describes "probative value"?
- (A) The ability of evidence to conclusively prove a fact.
- (B) The tendency of evidence to make a fact more or less probable.
- (C) The likelihood that evidence will be excluded for policy reasons.
- (D) The risk that evidence will mislead the jury.
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Under the Federal Rules, which of the following is a common policy reason for excluding otherwise relevant evidence?
- (A) The evidence is cumulative.
- (B) The evidence is unfairly prejudicial.
- (C) The evidence concerns subsequent remedial measures.
- (D) The evidence is not material to the case.
Introduction
Evidence is only admissible at trial if it is relevant. However, not all relevant evidence is automatically admitted. Courts may exclude relevant evidence if its probative value is substantially outweighed by certain dangers or for specific policy reasons. Understanding how and why relevant evidence may be excluded is essential for MBE success.
What Is Relevant Evidence?
Relevant evidence is evidence that has any tendency to make a fact of consequence in the case more or less probable than it would be without the evidence.
Key Term: Relevant Evidence Evidence that has any tendency to make a fact of consequence to the determination of the action more or less probable than it would be without the evidence.
Probative Value Explained
Probative value refers to the strength of the connection between the evidence and the fact it is offered to prove. The greater the likelihood that the evidence will affect the probability of a fact, the higher its probative value.
Key Term: Probative Value The measure of how strongly evidence makes a fact more or less probable in the context of the case.
Discretionary Exclusion: The Balancing Test
Even if evidence is relevant, the court may exclude it under FRE 403 if its probative value is substantially outweighed by one or more of the following dangers:
- Unfair prejudice
- Confusing the issues
- Misleading the jury
- Undue delay
- Wasting time
- Needless presentation of cumulative evidence
The judge must weigh the importance of the evidence against these risks. Only if the risks substantially outweigh the probative value will the evidence be excluded.
Key Term: Unfair Prejudice The risk that evidence will lead the jury to decide the case on an improper basis, often an emotional one, rather than on the facts.
Policy-Based Exclusions
Some relevant evidence is excluded for public policy reasons, even if it is not unfairly prejudicial. The most commonly tested policy exclusions are:
- Subsequent remedial measures (e.g., repairs made after an accident)
- Settlement offers and negotiations
- Offers to pay medical expenses
- Liability insurance
These exclusions are designed to encourage socially beneficial behavior, such as making repairs or settling disputes, without fear that such actions will be used as evidence of liability.
Key Term: Policy Exclusion A rule that excludes certain categories of relevant evidence to advance broader social goals, regardless of probative value.
Worked Example 1.1
A plaintiff sues a store after slipping on a wet floor. The store manager testifies that, after the accident, the store installed warning signs and non-slip mats. The plaintiff offers this evidence to show the store was negligent.
Answer: The court will exclude evidence of the store's subsequent remedial measures to prove negligence. This is a policy exclusion under FRE 407, which bars such evidence when offered to show fault.
Worked Example 1.2
A defendant in a car accident case wants to introduce evidence that the plaintiff has car insurance to suggest the plaintiff is careless because he feels protected.
Answer: Evidence of liability insurance is inadmissible to prove negligence or wrongful conduct. This is a policy exclusion under FRE 411.
Exam Warning
Evidence with some relevance can still be excluded if it risks confusing the jury or causing unfair prejudice. Always apply the balancing test and check for policy exclusions, even if the evidence seems important.
Revision Tip
When a question asks why relevant evidence might be excluded, first consider FRE 403 (balancing test), then check for policy exclusions like subsequent repairs, settlements, or insurance.
Key Point Checklist
This article has covered the following key knowledge points:
- Relevant evidence is admissible unless excluded by rule or policy.
- Probative value measures how much evidence affects the probability of a fact.
- FRE 403 allows exclusion of relevant evidence if its probative value is substantially outweighed by dangers such as unfair prejudice or confusion.
- Policy exclusions bar certain evidence (e.g., subsequent remedial measures, settlement offers, liability insurance) to advance social interests.
- Always apply the balancing test and check for policy exclusions before concluding evidence is admissible.
Key Terms and Concepts
- Relevant Evidence
- Probative Value
- Unfair Prejudice
- Policy Exclusion
