Evidence Outline

evidence of guilty plea of alleged accomplices never admissible under 403 if accomplice is not testifying

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evidence of guilty plea of alleged accomplices never admissible under 403 if accomplice is not testifying.

  • probative value: moderate. Alleged accomplice may not be an accomplice, and could have plead guilty for any number of reasons.

  • prejudicial value: very high

  • if the accomplice testifies, P can bring guilty plea up on direct to prevent impeachment by D and negative inferences.

    • If P didn’t bring it up on direct, D could introduce it on cross to show motive to falsify.

      • Even if D states in limine that he won’t bring it up, P still has proper purpose in preventing jury speculation as to why this guy is not on trial as well.

    • D gets instruction to use guilty plea only for credibility, and not to infer the guilt of D.

  • 5) Demonstrative Evidence – courtroom recreations of events.

    • opponent of evidence will attempt to show recreation is importantly dissimilar from real eventprejudicial, less probative  sometimes wins on 403.

    • eg, Fusco – car crash. D wants to admit demonstration of what happens when ball joint disengages as alleged.

      • disallowed as demonstration with professional driver, dry track, who expected it to happen. Thus so dissimilar as to be substantially more prejudicial than probative.

    • can sometimes get admitted if you make dissimilarities go in favor of opponent of evidence.

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