probative value

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Probative value is the probability of evidence to reach its proof purpose of a relevant fact in issue. It is one of the main elements of admitting evidence, as the admitted evidence must be relevant, tending to make the fact in issue more likely or less likely to happen, no matter how slight its probability is. However, there are exceptions to admitting relevant evidence. If the probative value of evidence is substantially outweighed by the dangers of “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence” then this evidence might be excluded. See F.R.E. Rule 403.

For instance, unfairly prejudicial evidence is unnecessary in proving a fact but may cause the jury to partially sympathize or discriminate against one party. The alternative is limiting the scope or topic of evidence under the instruction of the court.

There are many specific evidence rules taking probative value into account while considering whether admit the evidence or not:

Character and other related evidence:

Character Evidence: Character evidence is used to describe an individual’s disposition or the way an individual is anticipated to act under certain circumstances. If the character is at issue (e.g., slander, defamation), which means the character is direct evidence and a material element of the case, it is admissible.

If the character is circumstantial evidence, which can only infer conduct conforming with alleged character, it usually is not admissible. However, in criminal cases, defendants can introduce evidence of character traits being pertinent to crime at issue by the reputation or opinion testimony of witnesses. Once he opens the door of character evidence, prosecutors can start to use character evidence to rebut.

There are three ways to prove character, which are:

  • Specific acts
  • Opinion
  • Reputation testimony

The admissible character evidence usually is opinion or reputation testimony.

Prior Bad Acts: Specific acts to prove that a person’s action conforms with a character trait is usually not admissible. However, a defendant’s “prior acts of sexual assault or child molestation are admissible in a case where he is accused of similar conduct.”

MIMIC evidence: Specific acts with character purposes usually are not admissible to show the defendant's propensity of committing the crime. However, if acts without character purpose but are relevant to material issues of a defendant’s motive, intent, absence of mistake or accident, identity, or common scheme or plan, it is admissible. Before admitting, the court should weigh the act’s probative value. If it is prejudicial, the court can exclude it. If it is admitted, the court still needs to give instructions to the jury, relating to the specific purpose of the evidence. See F.R.E. rule 404(b).


Prior convictions: Evidence of prior convictions which passed more than 10 years since “the later of the witness’s conviction” or “release from confinement” usually not admissible to attack a witness’s character for truthfulness, unless its “probative value substantially outweighs its prejudicial effect”; and “the proponent gives an adverse party reasonable written notice of the intent to use it”.

Evidence of prior convictions which passed less than 10 years may be admitted depending on the subject and type of conviction. All crimes involving dishonesty or false statements of a witness (theft usually is not a crime of dishonesty) are always admissible to impeach that witness, and the judge has no discretion to exclude it. 

If the crime doesn’t involve dishonesty, there are three situations:

  • If it is not a felony, it is not admissible.
  • If it is a felony and the witness is the criminal defendant, it is not admissible unless its “probative value substantially outweighs its prejudicial effect.”
  • If it is a felony but the witness is not the criminal defendant, it is admissible unless its “probative value is substantially outweighed by its prejudicial effect.”

However, sex crimes generally cannot be used to impeach, especially when the danger of unfair prejudice is high. Annulled or pardoned convictions because of innocence also cannot be admitted. See F.R.E. Rule 609.

Specific acts, as instances of misconduct (e.g., lying), which are probative of a witness’s truthfulness or untruthfulness, can be used in good faith in cross-examination. Its admissibility is of the court’s discretion, but if it’s offered to contradict the defendant’s testimony, it is admissible unless its “probative value is substantially outweighed by its prejudicial effect.”

[Last updated in May of 2022 by the Wex Definitions Team]