Relevancy and reasons for excluding relevant evidence - Prob...

Learning Outcomes

This article explains relevancy, probative value, and reasons for excluding relevant evidence for MBE purposes, including:

• Identifying when evidence is relevant under FRE 401–402 by analyzing materiality and logical probativeness in multiple-choice fact patterns.
• Distinguishing materiality, logical relevance, and probative value, and articulating how small shifts in probability satisfy the low threshold for admissibility.
• Separating logical relevance from legal (Rule 403) relevance and recognizing that evidence can be admissible under 401 yet excluded under 403.
• Applying the FRE 403 balancing test step-by-step, weighing probative value against unfair prejudice, confusion, misleading the jury, delay, waste of time, and cumulative proof.
• Evaluating similar-occurrence evidence (prior accidents, absence of accidents, prior claims) for probative value and likely admissibility on the exam.
• Recognizing and applying the major policy-based exclusions—subsequent remedial measures, settlement negotiations, offers to pay medical expenses, liability insurance, and plea discussions—and their permitted uses.
• Distinguishing exclusion under FRE 403 from exclusion based on public policy rules, and determining which doctrine best explains each answer choice.
• Using limiting instructions strategically, assessing when FRE 105 can cure prejudice and when Rule 403 still warrants exclusion.
• Spotting classic MBE distractors that misstate the definition of probative value or ignore the presumption in favor of admissibility.

MBE Syllabus

For the MBE, you are required to understand the principles governing the admissibility of evidence, with a focus on the following syllabus points:

• The combined definition of relevance (materiality and probativeness) under FRE 401.
• The concept of probative value and its role in admissibility decisions.
• Discretionary exclusion of relevant evidence under FRE 403 when probative value is substantially outweighed by specified dangers.
• Public policy-based exclusions of relevant evidence (subsequent remedial measures, settlement offers, medical payments, liability insurance, plea discussions).
• The use of limiting instructions (FRE 105) and their interaction with Rule 403.
• How these doctrines are tested in multiple-choice questions, including common distractor answer choices.

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.

1. Which of the following is most likely to be excluded under FRE 403?
   1. Evidence with high probative value and minimal risk of unfair prejudice.
   2. Evidence with low probative value and a high risk of confusing the issues.
   3. Evidence with moderate probative value and no risk of misleading the jury.
   4. Evidence that is relevant and not otherwise excluded by rule.
2. Which statement best describes "probative value"?
   1. The ability of evidence to conclusively prove a fact.
   2. The tendency of evidence to make a fact more or less probable.
   3. The likelihood that evidence will be excluded for policy reasons.
   4. The risk that evidence will mislead the jury.
3. Under the Federal Rules, which of the following is a common policy reason for excluding otherwise relevant evidence?
   1. The evidence is cumulative.
   2. The evidence is unfairly prejudicial.
   3. The evidence concerns subsequent remedial measures.
   4. 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.

Most evidence questions on the MBE follow the same sequence:

1. Is the evidence relevant?
2. If so, is it excluded by a specific rule (hearsay, privilege, character evidence, etc.)?
3. Even if not excluded by a specific rule, should it be excluded under FRE 403 or a policy-based exclusion?

This article focuses on steps (1) and (3), with particular emphasis on probative value and the 403 balancing test.

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.

Materiality and Probative Value

Relevance under FRE 401 combines two ideas: materiality and probativeness.

Key Term: Materiality
The requirement that the fact the evidence is offered to prove must be “of consequence” to the determination of the action under the substantive law and pleadings.

A fact is material if it helps decide an issue raised by the substantive law or the pleadings. For example, contributory negligence is immaterial in a workers’ compensation claim if the statute eliminates that defense; evidence about the worker’s negligence is then irrelevant.

Key Term: Logical Relevance
The requirement that evidence have a rational tendency to make a material fact more or less probable than it would be without the evidence.

Once you identify a material fact, ask whether the offered evidence logically changes the probability of that fact. If it does, the evidence is logically relevant.

Key Term: Probative Value
The measure of how strongly evidence makes a fact more or less probable in the context of the case.

Probative value is about the strength of the connection between the evidence and the fact it is offered to prove. The stronger the logical link, the higher the probative value.

Probative Value Explained

Probative value is a sliding scale. The “any tendency” language in FRE 401 sets a very low threshold for relevance: even a small nudge in probability is enough for admissibility, so long as no other rule excludes the evidence. But not all relevant evidence is equally persuasive:

• High probative value: A surveillance video clearly showing the defendant running a red light directly bears on negligence in a traffic accident case.
• Low probative value: Evidence that the defendant ran a red light five years ago is only weakly connected to whether she ran the light on the day in question.

It is also important to distinguish probative value from sufficiency. Evidence can be admissible because it is probative even if it would be insufficient, by itself, to carry a party’s burden of proof.

For MBE purposes, remember that probative value does not require conclusive proof. Many questions will offer one answer choice describing probative value as the ability to “conclusively prove” a fact. That is incorrect. Evidence need only shift the probability, not decide the issue on its own.

Illustrations of Probative Value

The idea of probative value is especially important in “similar occurrence” questions, where evidence concerns other times, people, or events.

• Prior acts that are too remote, or not very similar, usually have low probative value and are often excluded.
• Prior accidents or similar injuries caused by the same condition can have significant probative value on issues like existence of a defect, knowledge of danger, or causation.
• Evidence of prior false claims or prior injuries to the same body part can be probative of exaggeration or falsity of a current claim.

The closer the other occurrence is in time, place, and circumstances to the litigated event, the more probative the inference drawn from it is likely to be.

Logical vs Legal Relevance

So far, the focus has been on logical relevance: whether the evidence tends to make a material fact more or less likely. But even logically relevant evidence can be excluded as a matter of legal or pragmatic relevance under FRE 403.

Key Term: FRE 403 Balancing Test
The rule allowing a court to exclude otherwise relevant evidence when its probative value is substantially outweighed by specified dangers such as unfair prejudice or confusion.

Logical relevance is about the strength of the inference from evidence to fact. Legal (pragmatic) relevance asks a different question: even if the evidence logically helps, is it worth the downsides? That is where the balancing test comes in.

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

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.

Key Term: Cumulative Evidence
Additional evidence that repeats points already established, adding little to the probative value but increasing time and potential for confusion.

Key features of the FRE 403 test for MBE purposes:

• There is a presumption in favor of admission. The evidence is excluded only if the dangers substantially outweigh the probative value. A close call favors admissibility.
• The burden is on the party opposing the evidence to show that the dangers substantially outweigh its probative value.
• Some prejudice is almost always present; the rule targets unfair prejudice and serious risks of confusion, not ordinary persuasive impact.

The listed dangers work as follows:

• Unfair prejudice: Graphic photos, prior unrelated criminal acts, or inflammatory language that risk provoking an emotional reaction or an improper propensity inference.
• Confusing the issues or misleading the jury: Technical side disputes that might divert attention from the main issues or cause jurors to give undue weight to marginal evidence.
• Undue delay, wasting time, cumulative evidence: Long tangents, repetitive witnesses, or mountains of similar documents that add little but consume time.

Limiting instructions also affect the analysis. Under FRE 105, when evidence is admissible for one purpose or against one party but not for another, the court should give a limiting instruction if requested. However, if the risk that the jury will misuse the evidence is too high even with a limiting instruction, the court may still exclude it under FRE 403.

Worked Example 1.1

A defendant is on trial for armed robbery of a jewelry store. The prosecution offers evidence that, when arrested, the defendant possessed a small bag of methamphetamine. The prosecution argues this shows a motive to rob the store to fund a drug habit.

Answer:
The drug evidence has some probative value on motive, but it is weak: many drug users do not commit robberies. The risk of unfair prejudice is high because jurors may infer that the defendant is a bad person or a criminal generally. A court is likely to exclude the evidence under FRE 403 because its limited probative value is substantially outweighed by the danger of unfair prejudice.

Worked Example 1.2

In a negligence action, a plaintiff claims she slipped on a puddle in a supermarket. The defendant offers evidence that in the 10 years before this incident, no other customers reported slipping in that aisle.

Answer:
The absence of prior accidents has some probative value on whether the condition was dangerous and whether the defendant had notice. If the aisle configuration and maintenance practices remained constant, this evidence is logically relevant. The judge must then weigh its probative value against any risk of misleading the jury (e.g., incomplete reporting). Generally, where the conditions are similar and the time frame is not too remote, such evidence is admissible because its probative value is not substantially outweighed by Rule 403 dangers.

Policy-Based Exclusions

Some relevant evidence is excluded for public policy reasons, even if it is not unfairly prejudicial under Rule 403. These rules aim to encourage socially beneficial behavior—repairing hazards, settling disputes, obtaining insurance, and engaging in plea discussions—without fear that those actions will be used as admissions of fault.

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
• Plea discussions and withdrawn or nolo pleas

Key Term: Policy Exclusion
A rule that excludes certain categories of relevant evidence to advance broader social goals, regardless of probative value.

Subsequent Remedial Measures (FRE 407)

Key Term: Subsequent Remedial Measures
Steps taken after an injury or harm to make a condition safer, such as repairs, design changes, or new warnings.

Evidence of subsequent remedial measures is not admissible to prove:

• Negligence
• Culpable conduct
• A defect in a product or its design
• A need for a warning or instruction

However, it may be admissible for other purposes, such as:

• Proving ownership or control, if disputed
• Showing the feasibility of precautionary measures, if feasibility is controverted
• Impeaching a witness (for example, if a witness testifies that a precaution was impossible or already in place)

On the MBE, always identify the purpose for which the evidence is offered. If it is offered to prove negligence or defect, it is barred. If offered for ownership, control, or feasibility—where those matters are genuinely disputed—it may be allowed (subject to FRE 403).

Worked Example 1.3

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. The evidence might, however, be admissible for another purpose, such as proving control of the area, if that were disputed.

Settlement Offers and Negotiations (FRE 408)

Key Term: Settlement Offers and Negotiations
Offers to compromise a disputed claim, and statements made during such negotiations, when offered to prove or disprove the validity or amount of that claim.

FRE 408 excludes:

• Offers to compromise a claim, and
• Conduct or statements made during compromise negotiations

when offered:

• To prove or disprove the validity or amount of a disputed claim, or
• To impeach by prior inconsistent statement or contradiction.

Conditions for the rule to apply:

• There must be a claim; and
• The claim must be disputed as to validity or amount.

However, settlement evidence may be admitted for other purposes, such as:

• Proving a witness’s bias or prejudice
• Negating a contention of undue delay
• Proving an effort to obstruct a criminal investigation or prosecution

Worked Example 1.4

After a slip-and-fall accident, the store manager tells the injured customer: “We’ll pay you $10,000 if you’ll sign a release. We know this was our fault.” At trial, the plaintiff offers this statement to prove the store’s negligence.

Answer:
If a claim had arisen and the parties were negotiating a compromise, both the offer to pay and the statement “we know this was our fault” are inadmissible to prove liability or the amount of the claim under FRE 408. The policy is to encourage candid settlement discussions.

Offers to Pay Medical Expenses (FRE 409)

Key Term: Offers to Pay Medical Expenses
Statements expressing a willingness to pay medical, hospital, or similar expenses resulting from an injury.

FRE 409 provides that offers to pay medical, hospital, or similar expenses are not admissible to prove liability for the injury. However, unlike Rule 408:

• Only the offer itself is excluded.
• Separate factual admissions made in the same statement are not protected by Rule 409.

Thus, context matters: if the speaker both offers to pay and admits fault, the admission is generally admissible (subject to other rules), even though the offer to pay is excluded.

Worked Example 1.5

Immediately after a collision, Driver says to Pedestrian, “I’m so sorry—I ran the red light. Let me pay your hospital bills.” At trial, Pedestrian offers the entire statement.

Answer:
The offer to pay medical bills (“Let me pay your hospital bills”) is inadmissible under FRE 409 to prove liability. However, the admission of fault (“I ran the red light”) is not protected by Rule 409 and is admissible as a party admission, subject to other rules. A court may admit the statement with a limiting instruction.

Liability Insurance (FRE 411)

Key Term: Liability Insurance
Evidence that a person was or was not insured against liability for the conduct at issue.

Evidence that a person was or was not insured against liability is not admissible to prove:

• That the person acted negligently or wrongfully; or
• That the person has the ability (or inability) to pay a judgment.

However, evidence of insurance may be admissible for other purposes, such as:

• Proving ownership or control of property or an instrumentality, if disputed
• Showing a witness’s bias or prejudice (for example, where an insurance adjuster testifies)

Worked Example 1.6

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. The evidence might be admissible for another purpose (e.g., to show ownership or bias), but not to show the plaintiff is careless because he is insured.

Plea Discussions and Related Statements (FRE 410)

Key Term: Plea Discussions
Negotiations between a criminal defendant (or counsel) and a prosecuting attorney regarding a plea, including certain resulting or withdrawn pleas.

FRE 410 generally excludes:

• A withdrawn guilty plea
• A plea of nolo contendere
• Statements made during proceedings on those pleas
• Statements made during plea discussions with the prosecutor that do not result in a guilty plea or result in a later-withdrawn plea

when offered against the defendant.

These rules are designed to encourage frank plea bargaining. Limited exceptions allow such evidence when fairness requires considering related statements together or in perjury prosecutions, but on the MBE the emphasis is on the general exclusionary rule.

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.

On the MBE, an answer choice stating “inadmissible because the probative value is substantially outweighed by the danger of unfair prejudice” is sometimes correct and sometimes a distractor. It is most likely correct where the evidence is only weakly probative but strongly inflammatory or likely to trigger an improper propensity inference.

Revision Tip

When a question asks why relevant evidence might be excluded, proceed in this order:

• Confirm that the evidence is relevant (material + probative under FRE 401).
• Consider specific exclusionary rules (hearsay, privilege, character evidence).
• Apply FRE 403 (balancing test).
• Then check for policy exclusions like subsequent repairs, settlements, medical payments, insurance, or plea discussions.

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.
• Materiality focuses on whether the fact is “of consequence” under the substantive law; probativeness asks whether the evidence changes the probability of that fact.
• Logical relevance (FRE 401) and legal relevance (FRE 403) are distinct stages: evidence can be logically relevant but still excluded for pragmatic reasons.
• Subsequent remedial measures, settlement negotiations, offers to pay medical expenses, liability insurance, and plea discussions are all common policy-based exclusions, but each has specific permitted uses that may allow admission for limited purposes.

Key Terms and Concepts

• Relevant Evidence
• Materiality
• Probative Value
• Logical Relevance
• FRE 403 Balancing Test
• Unfair Prejudice
• Cumulative Evidence
• Policy Exclusion
• Subsequent Remedial Measures
• Settlement Offers and Negotiations
• Offers to Pay Medical Expenses
• Liability Insurance
• Plea Discussions