How FRE 403 Balancing Tests Apply in Counterfeiting Trials

How FRE 403 Balancing Tests Apply in Counterfeiting Trials

Counterfeiting cases often involve the use of evidence that may be prejudicial to the defendant. Under the Federal Rules of Evidence (FRE) Rule 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. This balancing test gives judges discretion to exclude prejudicial evidence in counterfeiting trials.

What is FRE 403?

FRE 403 states that “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”¹ This rule gives judges the ability to exclude evidence that is more prejudicial than probative in a given case.

There are several factors courts consider when weighing probative value against prejudicial effect under FRE 403:²

• The strength of the evidence – how strongly it points to guilt or innocence
• The proponent’s need for the evidence
• Whether there are alternative ways to prove the fact
• The danger of unfair prejudice
• Whether the evidence would confuse or mislead the jury
• The danger of undue delay, waste of time, or cumulativeness

This balancing test allows judges to exclude evidence in situations where the prejudice substantially outweighs the legitimate probative value of the evidence. This is important in counterfeiting cases where prejudicial evidence is often introduced.

Prejudicial Evidence in Counterfeiting Cases

• Large Quantities of Counterfeit Goods – Showing the jury rooms full of fake handbags, shoes, etc. can inflame emotions against the defendant. The defense may argue such large quantities are cumulative and unnecessary to prove the charges.³
• Videos/Photos of Defendants – Images of defendants interacting with counterfeit goods could appeal unfairly to jurors’ emotions. The defense may argue visuals are cumulative if testimony describes the scenes.⁴
• Defendant’s Wealth – Evidence of a defendant’s wealth, expensive possessions, etc., may lead the jury to convict based on class prejudice. Such evidence often lacks strong probative value in counterfeiting cases.⁵

In each case, the defense can argue this evidence is substantially more unfairly prejudicial than probative to the charges. The prosecution wants to tell a compelling story, but FRE 403 gives judges discretion to exclude evidence that crosses the line into unfair prejudice.

FRE 403’s Application in Counterfeiting Cases

Judges have applied FRE 403 balancing tests to exclude prejudicial evidence in many counterfeiting prosecutions. Some examples include:

• In U.S. v. Blas, the court excluded evidence of counterfeit credit cards found in the defendant’s apartment as unfairly prejudicial under FRE 403. The counterfeit cards were not directly related to the charged conduct of trafficking in counterfeit handbags.⁶
• In U.S. v. Lam, the court excluded evidence of the defendant’s prior arrests and encounters with police. The court found this evidence “invited the jury to convict [the defendant] based on past misdeeds.”⁷
• In U.S. v. McDowell, the prosecution sought to introduce rap lyrics and music videos made by the defendant that referenced criminal conduct. The court excluded this evidence as substantially more unfairly prejudicial than probative under FRE 403.⁸

These cases illustrate FRE 403’s important role in excluding unfairly prejudicial evidence in counterfeiting trials. However, the balancing test also allows truly probative evidence that advances the prosecution’s case.

Prosecution Evidence Deemed More Probative Than Prejudicial

Despite FRE 403 challenges, courts often deem prosecution evidence in counterfeiting cases more probative than unfairly prejudicial. Examples include:

• In U.S. v. Lopez, the court admitted evidence of prior counterfeit sales by the defendant. Though prejudicial, this evidence was directly probative of the defendant’s knowledge and intent.⁹
• In U.S. v. Huynh, the court allowed evidence of counterfeit items in places connected to the defendant, like their home, finding this evidence more probative than prejudicial.¹⁰
• In U.S. v. Castellano, the court admitted rap lyrics by the defendant boasting of selling counterfeit goods. The lyrics did not reference violence and were highly probative of the charges.¹¹

The prosecution has significant leeway to present probative evidence in its case against the defendant. FRE 403 excludes only the most unfairly prejudicial evidence that lacks commensurate probative value.

Conclusion

Counterfeiting trials involve unique evidentiary challenges under FRE 403. While the prosecution has latitude to present its case, unfairly prejudicial evidence that lacks commensurate probative value may be excluded. Both prosecutors and defense counsel must carefully apply FRE 403 balancing tests to navigate what the jury sees. With sound arguments rooted in the facts and law, advocates can strike the right balance between probative and unfairly prejudicial evidence.