Probative Evidence

Example 1

A man is charged with robbing a grocery store. The prosecution seeks to admit into evidence video footage from the store’s security camera, which allegedly shows the defendant walking into the store with a handgun seconds before the robbery. This video has high probative value, as it has a high tendency to prove that the defendant committed the robbery.

Example 2

A woman is charged with murdering her husband. A coroner determined that the husband was killed at noon on Sunday, August 11. The woman seeks to admit into evidence a restaurant reservation and text messages from her friend, which prove that the woman was eating lunch with the friend at the time of the murder. This evidence has high probative value, as it has a high tendency to disprove that the woman committed the murder.

Example 3

A man is charged with embezzlement. In his defense, he seeks to admit into evidence his tax records, which show that he consistently pays his taxes. Although this could potentially be admitted into evidence for other reasons at a later time, such as defending the man against character attacks, it isn’t probative for disproving embezzlement. It has no bearing on whether the man embezzled money.

Case Example

• The main test for probative value of evidence is a balancing test of whether it outweighs the prejudicial risk of the evidence. For example, in United States v. Becht, 267 F.3d 767, 773 (8th Cir. 2001), the government prosecution sought to include over 30 pornographic images found on the defendant’s hard drive. The defendant, Becht, claimed that the prejudicial impact of the evidence outweighed its probative value. The Court disagreed, noting that the balancing test required “not only a comparison of the probative value and prejudicial effect of the disputed evidence, but of the relative probative value and prejudicial effect of any evidentiary alternatives as well. If an evidentiary alternative has equal or greater probative value and poses a lower risk of unfair prejudice, the trial court should ‘discount’ the probative value of the disputed evidence and exclude it if the risk of unfair prejudice substantially outweighs its discounted probative value”.