DOJ-OGR-00006383.jpg

Case 1:20-cr-00330-PAE Document 438 Filed 11/12/21 Page 23 of 54 A. The Court Should Not Permit the Defense to Elicit Evidence About Charging Decisions or Possible Reasons for Them 1. Applicable Law Federal Rule of Evidence 402 provides that “[i]rrelevant evidence is not admissible.” Accordingly, any evidence that does not bear on the defendant’s guilt or innocence of the charges in the indictment should be excluded as irrelevant. Rule 403 further 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.” Accordingly, any evidence that is likely to distract the jury from the issue of guilt or innocence should be excluded under Rule 403. See, e.g., United States v. Rosado, 728 F.2d 89, 93 (2d Cir. 1984) (criticizing admission of evidence about the propriety of a prosecution “for turning the trial away from a determination of whether the elements of the offense charged had been proved beyond a reasonable doubt into a wide-ranging inquiry into matters far beyond the scope of legitimate issues in a criminal trial’). Evidence about charging decisions made by law enforcement officials is rarely admissible because such evidence typically consists of hearsay, is not relevant, and is likely to confuse and mislead the jury. As such, courts in this Circuit have repeatedly precluded evidence of charging decisions for one or more of these reasons. See, e.g., United States v. Borrero, No. 13 Cr. 58 (KBF), 2013 WL 6020773, at *2 (S.D.N.Y. Nov. 1, 2013) (precluding cross examination regarding a government charging decision in part because “the limited amount of probative value that the . . . charging decisions add is substantially outweighed by the risk of 22 DOJ-OGR-00006383