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Under section 403 of the Massachusetts Rules of Evidence, a trial judge may bar evidence from being introduced at trial if its evidentiary value (i.e., “probative value”) is substantially outweighed by its likelihood to the prejudice the jury.

In other words, if evidence has little relevancy to a case but, at the same time, has a significant chance of creating hostility or disgusts among the jurors towards the defendant, the court can exclude that evidence from the trial.

Here are a few examples.

Case 1

At the trial of indictments charging rape of a child and indecent assault and battery on a child who has not attained the age of fourteen, the judge abused his discretion in admitting in evidence testimonial description of pornographic material, found in the defendant’s home, consisting of videotapes, magazines, over one hundred pornographic images, and a crystal cup engraved with pornographic images, and in permitting submission of a substantial quantity of that material to the jury, where much of the material had no direct bearing on the complainant’s testimony and thus was not corroborative

COMMONWEALTH vs. JAUNDOO. 64 Mass. App. Ct. 56

Case 2

At a murder trial, the prosecutor, during closing argument, made repeated improper references to testimony that had been admitted for the limited purpose of impeachment as though it were substantive evidence…,improperly appealed to the jury’s sympathies…, argued (on more than ten occasions) facts not in evidence or asked the jury to draw inferences the evidence did not support…, and impermissibly told the jury his own opinion of the credibility of the defendant and other witnesses…; accordingly, this court held…that the defendant was entitled to a new trial or to a reduction of the verdict to manslaughter, where it had serious doubt whether the result of the trial might have been different had the errors not been made. 

COMMONWEALTH vs. NIEMIC. 483 Mass. 571

Case 3

At the trial of indictments charging rape and abuse of a child without force and indecent assault and battery on a child under fourteen, there was no proper foundation for the admission of two offensive and inflammatory photographs, one of the alleged victim and one of the defendant; moreover, the relevance of the photographs was marginal at best or nonexistent: where evidence of the defendant’s guilt was not overwhelming and where it appeared that the judge considered the photographs in arriving at the guilty verdicts, the admission of the photographs was prejudicial error.

COMMONWEALTH V. DARBY, 37 Mass.App.Ct. 650

The trial judge will have broad discretion when determining whether the value of evidence is outweighed by its prejudicial effect and only a “palpable error” will be reversed on appeal.  As Professor McCormick notes,

Analyzing and weighing the pertinent costs and benefits is no trivial task.  Wise judges may come to differing conclusions in similar situations.  Even the same item of evidence may fare differently from one case to the next, depending on its relationship to the other evidence in the cases and the importance of the issues on which it bears.  Accordingly, much leeway is given trial judges who must fairly weigh probative value against probable dangers.  Nevertheless, discretion can be abused, and some appellate courts have urged trial courts to articulate the reasoning behind their relevance rulings. 

McCormick on Evidence, Chapter 16, § 185.