D is being prosecuted for 1) being a felon in possession of a firearm, and 2) assault with a deadly weapon. Prior to trial, D offers to stipulate that he is a “felon” as defined by the applicable statute. In return, he requests that the prosecutor promise not to offer evidence that D’s prior felony conviction was for assault with a deadly weapon. The prosecutor refuses to accept that on the ground that it is entitled to pick the evidence it wants to prove its case.

What should Defendant argue in response?

The stipulated fact (prior “felon”) gives the prosecution what it needs to prove his felon status for the first charge. Any additional evidence on that issue poses a substantial risk of unfair prejudice. And it would lead to unfair character-propensity inferences. The court would likely agree.

Explanation

This fact pattern was modeled after the Supreme Court case of Old Chief v. United States, 519 U.S. 172. The “felon” requirement in “possession of a firearm by a felon” required no “evidentiary depth” to convey the prosecution’s story. Although prosecutors are generally entitled pick their evidence to tell their story, the Supreme Court sided with fairness and admitted the less prejudicial form of evidence (the admission).  

Relevance is a necessary condition but not a sufficient condition to admissibility. Under federal law, we always balance relevant evidence with a FRE § 403 balancing test. A core factor in that balancing test is prejudice.

“Rule 401 provides nothing more than a threshold test, ‘starting point in the determination of admissibility.’”  U.S. v. Robinson, 560 F.2d 507 (2d Cir. 1977). See also Robert Baker, Vincent C. Alexander, Evidence in New York State and Federal Courts § 4:6 at 4-158 West NY Prac Series Vol 5m 2016.  “If relevancy is found, the probative value of the evidence must be weighed against its prejudicial effect under Rule 403. “Robert Baker, Vincent C. Alexander, Evidence in New York State and Federal Courts § 4:6 at 4-158 West NY Prac Series Vol 5m 2016.  

New York similarly balances relevant evidence against prejudice. The decision to admit or exclude relevant evidence rests within the discretion of the trial court. Bodensteiner v. Vannais, 167 A.D.2d 954 (4th Dept 1990)(“The decision whether to admit evidence that is logically relevant but is so prejudicial that its probative value is outweighed, rests within the sound discretion of the court.”)