Probative value - Next Generation Bar Exam

1. What is meant by a fact of consequence under FRE 401?

   A fact that matters to the determination of the action under the substantive law. The fact need not be in dispute.

2. What is the standard of review for a trial court's FRE 403 ruling?

   Abuse of discretion. Appellate courts give trial courts broad latitude in balancing.

3. Under FRE 401, when is evidence relevant?

   When it has any tendency to make a fact of consequence more or less probable than it would be without the evidence. The threshold for relevance is low.

4. In a slip-and-fall case, the plaintiff offers evidence that the store's floor was mopped one hour before the fall. What is the status of the evidence under FRE 401?

   It is relevant because it makes a wet floor more probable. The evidence need only have some tendency to make the fact more probable.

5. Under Old Chief v. United States, what is the general rule on a prosecutor's choice of evidence despite a defense offer to stipulate?

   The prosecution may generally prove its case by evidence of its choice. Old Chief's exception is limited to stipulations to legal status.

6. Under Old Chief v. United States, what must the court do when a defendant offers to stipulate to felon status in a felon-in-possession case?

   Accept the stipulation and exclude the name and nature of the prior conviction. The full record of the conviction adds unfair prejudice without added probative value on the status element.

7. Under the prevailing view, what is the status of evidence of similar accidents offered to show a dangerous condition?

   It is admissible if the prior accidents occurred under substantially similar circumstances. Courts also consider FRE 403 dangers such as confusion and delay.

8. Under FRE 403, when may a court exclude relevant evidence?

   When its probative value is substantially outweighed by unfair prejudice, confusion, delay, or similar dangers. The rule favors admission, requiring that the dangers substantially outweigh probative value.

9. In a murder trial where identity and cause of death are undisputed, the prosecution offers numerous graphic autopsy photographs. What rule supports exclusion of some of them?

   FRE 403, as cumulative and unfairly prejudicial. The court may admit some photographs while excluding needless duplicates.

10. What is unfair prejudice under FRE 403?

    An undue tendency to suggest decision on an improper basis, commonly an emotional one. Evidence is not unfairly prejudicial merely because it is damaging to a party.

11. What does evidence of a party's habit or an organization's routine practice prove under FRE 406?

    That on a particular occasion the person or organization acted in accordance with the habit or routine. Corroboration and eyewitness testimony are not required.

12. Under FRE 402, what is the status of irrelevant evidence?

    It is inadmissible. Relevant evidence is admissible unless the Constitution, a statute, or a rule provides otherwise.

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