Washington Law Review


D. Craig Lewis


The United States Supreme Court held its 1970 decision In re Winship that in criminal prosecutions the Constitution requires proof of guilt beyond a reasonable doubt. Professor Lewis argues that Winship governs the validity of evidence rules in criminal cases and requires that rules of evidence do not impair the reliability of criminal convictions. The author concludes that Federal Rule of Evidence 403, which permits the admission of prejudicial evidence unless the danger of unfair prejudice substantially outweighs probative value, violates this requirement. Rule 403 substantially increases the risk of erroneous decisionmaking and prescribes a balancing test that unconstitutionally places the major risk of decisionmaking error on the defendant. The author proposes a revision to Rule 403 that would impose on the prosecution, rather than on the defendant, the burden of showing that probative value substantially outweighs the danger of unfair prejudice. Such a revision would make Rule 403 constitutional under Winship-based reliability demands.

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