Weighing "Virtually Zero" Probative Value Against "A Modest Risk" Of A Purely Speculative Verdict

In an illegal reenry case, defense evidence that suggested that the defendant's maternal grandfather was born in the United States was relevant under FRE 401, but excluded as violating FRE 403; lacking any defense evidence linking this relevant fact to other facts necessary for showing a derivative citizenship defense, the proffered evidence's probative value was "virtually zero" and was substantially outweighed by "at least a modest risk that the jury might be misled into reaching a verdict [based] on pure speculation," in United States v. Espinoza-Baza, __ F.3d __ (9th Cir. Aug. 4, 2011) (No. 09-10398)

FRE 403 is one of those evidence rules that are "susceptible only to case-by-case determinations." United States v. Hinkson, 585 F.3d 1247, 1267 (9th Cir. 2009). Occasionally a one of those case-by-case determinations provides a broader principle than can be confined to the facts of one case. A recent opinion in the Ninth Circuit provides a fine example of this. The circuit carefully explained how the FRE 403 balance of probative value with prejudicial effect can be applied when the evidence to be admitted involves "at least a modest risk that the jury might be misled into reaching a verdict [based] on pure speculation." In the circuit's particular case. The case provides another explanation of what can make the probative value of relevant evidence weighed substantially less than the danger of "misleading the jury." FRE 403.

In the case, defendant Espinoza-Baza was charged as being a deported alien who reentered the United States several times after having been deported for committing serious crimes. After his conviction on the illegal reentry charge, the defendant appealed the trial court's decision to exclude evidence for his defense of not being excludable as he might have derived citizenship in the U.S. The Ninth Circuit affirmed the exclusion of the evidence, based its "at least a modest risk" of inviting the jury to reach "a verdict [based] on pure speculation," violating FRE 403.

In his appeal, the defendant cited as erroneous that the trial court excluded testimony by two aunts to the effect that the defendant's "maternal grandfather was born in Texas" and "resided there for some unspecified time period before relocating to Mexico." Apparently during that period he was in the U.S., the defendant's mother could have illegally entered the country and in time derived citizenship, which would then pass to the defendant even though he was born in Mexico. The circuit rejected this evidence. In light of the other evidence the defendant offered for his defense, the circuit noted that even if believed, the evidence could not satisfy the basic elements for a statutory defense of derived citizenship to the illegal reentry charge.

That defense was provided by statute and required that a defendant show that he was entitled to remain in the country because his mother had (1) been a United States citizen, (2) had resided in the United States for at least ten years prior to Espinoza–Baza's birth, and (3) had at least five years of residency in the U.S. after she reached age fourteen. These were elements necessary for showing that the defendant might have derived U.S. citizenship from his mother. Even if the grandfather had been born in Texas, this fact alone, or combined with any other facts offered by the defendant, failed to link his grandfather's alleged citizenship to the defendant's mother's citizenship from which the defendant might have acquired citizenship. The district court properly concluded that, to the extent it was relevant at all, the fact had very minimal probative value and that consideration of this evidence by the jury unnecessarily risked confusion of the issues and could have resulted in a verdict based upon mere speculation. Espinoza-Baca, __ F.3d at __ (citing 8 U.S.C. § 1401(g) (1980) (derived citizenship defense)).

The circuit noted that the defendant's appeal presented an example that even “[w]here the evidence is of very slight (if any) probative value, ... even a modest likelihood of unfair prejudice or a small risk of misleading the jury” will justify excluding that evidence. United States v. Hitt, 981 F.2d 422, 424 (9th Cir.1992). As the circuit explained:

the district court did not abuse its discretion by excluding evidence suggesting that Espinoza–Baza's grandfather was born in the United States. Here, we agree with the district court's conclusion that the probative value of Espinoza–Baza's evidence is, at best, marginal. According to Espinoza–Baza, his grandfather's citizenship status gives rise to an inference that he might have obtained derivative citizenship. But, for the jury to plausibly draw that inference, additional facts are necessary. Here, there is no indication that the grandfather spent any significant time in the United States following his birth (so as to convey derivative citizenship to Espinoza–Baza's mother), or that the mother even entered the United States prior to Espinoza–Baza's birth or resided here for a sufficient period of time (as necessary to convey derivative citizenship to her son). Absent these facts, we are left with only speculation, not proof. Because the record is devoid of anything that links the grandfather's citizenship status with the requirements for derivative citizenship under 8 U.S.C. § 1401(g), the probative value of Espinoza–Baza's evidence is extremely small.
Espinoza-Baca, __ F.3d at __ (citing United States v. 87.98 Acres, 530 F.3d 899, 907–08 (9th Cir. 2008) (holding the probative value of excluded evidence to be minimal where there was nothing “linking” that evidence to the facts at issue); Rogers v. Raymark Indus., Inc., 922 F.2d 1426, 1432 (9th Cir. 1991) (“Given the tenuous link between” the proffered evidence and the dispositive issues, “the district court could reasonably find that plaintiff's proffered evidence” had little “probative value”)).


Not only was the probative use of the evidence minimal, but its admission risked creating:

a substantial risk of confusion and that it might have caused the jury to base its verdict on highly speculative evidence rather than Espinoza–Baza's guilt or innocence. Under our precedent, even “a small risk of misleading the jury” substantially outweighs the probative value of minimally probative evidence. Absent facts connecting Espinoza–Baza's evidence with the elements of derivative citizenship, there is at least a modest risk that the jury might be misled into reaching a verdict on pure speculation. Thus, because Espinoza–Baza's evidence provided only marginal probative value and presented an undue risk of jury confusion, we cannot say that the district court's decision falls outside “the pale of reasonable justification under the circumstances.”
Espinoza-Baca, __ F.3d at __ (citing Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (permitting trial courts to exclude evidence pursuant to Rule 403 having “an undue tendency to suggest decision on an improper basis”); Hitt, 981 F.2d at 424; cf. United States v. Gonzalez–Flores, 418 F.3d 1093, 1098–99 (9th Cir.2005) (evidence presenting even a “modest likelihood of unfair prejudice” is “high enough to outweigh the ... probative value” of marginally relevant evidence); Pineda–Doval, 614 F.3d at 1035.


In essence, the circuit suggested that this weighing was a reflection of the fact that the proffered evidence regarding the defendant's grandfather:

on its face, demonstrates that there is no way that [defendant] could have obtained derivative citizenship. According to Espinoza–Baza's proffered evidence, his aunts would have testified that his “mother went to the United States illegally at some point.” If Espinoza–Baza's mother lacked legal authorization to enter and reside in the United States, then there is no way that she could have been a citizen, derivative or otherwise. Obviously, if Espinoza–Baza's mother was not a citizen, it follows that she—irrespective of the grandfather's citizenship status or the duration of the mother's residency in the United States—could not possibly have conveyed derivative citizenship to her son. Under these particular circumstances, the probative value of the excluded evidence is virtually zero.
Espinoza-Baca, __ F.3d at __ (citing United States v. Velasques–Vela, 443 F.2d 231, 233 (9th Cir.1971) (holding that proffered evidence arguably relevant to one element of derivative citizenship was properly excluded because that evidence demonstrated clearly that the defendant could not possibly satisfy the other element)).
Federal Rules of Evidence
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