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Is the evidence probative under 403? Consider this question

In a recent SC Supreme Court case, State v. Phillips, Justice Few asked a simple question to determine the probative value of a piece of evidence: "what was practically in dispute?"

This question is important because it determines whether that piece of evidence really moves the ball forward, or if it just adds to an already clear picture. By understanding "what is actually in dispute," the judge can determine if the new piece of evidence clarifies or moves forward in answering the dispute.

Justice Few gives an example of this in application: in most murder cases, who touched the weapon is usually very important. But what if the defendant admitted he handled the weapon?

The question of "what is in dispute" can also be greatly affected by stipulations by the defense. But remember, the defense can stipulate, but that doesn't necessarily prevent the government from presenting their full case. See Old Chief.

Old Chief v. United States, 519 U.S. 172, 189, 117 S. Ct. 644, 654, 136 L. Ed. 2d 574 (1997)

This question also relates back to Justice Few's most important question in any evidence case: "Why?"

***This is not legal advice***


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