Probative Value

The legal term probative value refers to any evidence that serves the purpose of proving something during a trial. Probative value considers the evidence’s usefulness in proving, or disproving, a particular fact in the case, with the court determining the actual value of such evidence according to its relevance to the case at hand. This becomes important in a trial where certain specific evidence may have the effect of unfairly prejudicing the jury. To explore this concept, consider the following probative value definition.

Definition of Probative


  1. Serving to test, try, or prove something.


1425-1475       Late Middle English < Middle French probatif

What is Probative Value

In any trial, whether civil or criminal, there is a possibility that either party could try to introduce evidence to the jury that has little or no relevance to the case, but which is likely to cause the jury to have a negative opinion about the defendant or other party. For this reason, there are strict rules of evidence in the U.S. legal system, which give the trial court judge the power to ensure the trial is fair.

A party against whom questionable evidence is to be presented may object to the evidence, asking the judge to review whether the evidence is sufficiently relevant to the current case to risk prejudicing the jury.

For example:

Nathan has been charged with the second degree murder of a co-worker. During the trial, the prosecution plans to introduce a witness who saw Nathan in a heated argument with his next-door neighbor over the neighbor’s dog being allowed to run free in the neighborhood. Nathan’s attorney objects to this testimony, as that argument has nothing to do with the alleged murder of Nathan’s co-worker.

While the prosecution argues that the confrontation with the neighbor shows that Nathan has a sharp temper, the judge must decide, outside the hearing of the jury, whether there is sufficient probative value in the testimony to override the possibility of unduly prejudicing the jury against Nathan.

What is Unfair Prejudice

Evidence is relevant to a case if it (1) tends to make a fact of the case more or less probable than it would be without that evidence, and (2) that fact is significant in deciding the case. There are many facts, and evidence to support those fact, that may have some degree of relevance to the case being tried. The question then is whether the fact, and therefore certain evidence presented to prove that fact, is of great enough value to be allowed at trial, if it carries a substantial risk of prejudicing the opinions of the jury.

By the adversarial nature of civil and criminal trials, most evidence could be considered prejudicial, as it is introduced in an effort to sway the jury to one side or the other. In order to be excluded from trial, the prejudicial nature of certain evidence must be unfair. This is why it is left up to the trial judge to determine the probative value of disputed evidence. Evidence that has a high probative value is more likely to be allowed at trial, evidence with low probative value is not.

Prejudicial Effect

Determining whether certain evidence has a prejudicial effect may depend on the specific circumstances of the case, and the proposed evidence. There are certain topics, however, which are generally accepted has having at least some prejudicial effect on nearly everyone. These involve topics about which people get emotional, argue, or hear at church. These include such topics as:

  • Crime
  • Violence
  • Sex
  • Drugs
  • Politics
  • Religion
  • Abortion
  • Illegal Immigrants
  • Same-Sex Marriage

Determining probative value involves determining whether there is a good reason to admit evidence of a defendant’s religious beliefs, for instance, when he is accused of harboring an illegal immigrant.

Example of Determining Probative Value

Sophia has accused Dalton of raping her during an off-campus party. A rape exam at the hospital the night of the incident provided physical evidence that Sophia was raped, and DNA tests show that she had intercourse with Dalton.

During the trial, Dalton’s attorneys want to present photographs to the jury showing that Sophia and Dalton have known each other for a couple of years, and that they have “partied” together on a number of occasions. The point the defense is trying to make to the jury is that the sex was consensual.

Before the photos can be shown to the jury, the prosecutor objects to them, arguing that they have no relevance to the present case. The photographs show:

  1. Dalton and Sophia dancing at a party while Sophia is wearing a tight mini-skirt and low-cut top.
  2. Dalton and Sophia together with several other young people, holding up drinks for the photo at a party.
  3. Susan laying on a table with whipped cream on her exposed stomach, with Dalton and several other partygoers leering suggestively.
  4. Susan and some of her friends smoking a joint.

While it may seem that these photographs have no probative value in proving that Dalton raped Sophia against her will, they do have value in establishing that the two had at least some type of relationship prior to the alleged rape. However, showing Sophia in skimpy clothing, drinking at parties, using marijuana, and in sexually suggestive situations is likely to give the jury the impression that she is “loose,” and that she likely did consent, even if she was under the influence and doesn’t remember.

This type of evidence may be relevant to the case, but it also has a high probability to unfairly prejudicing the jury against Sophia, which may tend to decrease their opinion of Dalton’s culpability in the crime, or lead them to believe there was no crime at all, based on Sophia’s perceived character. In such a case, it would be up to the trial judge weigh the relevance of the photo evidence in disproving the charges against Dalton, against the risk of prejudicing the jury with pictures of things that have nothing to do with whether or not a rape occurred.

Excluded Evidence in a Murder Trial

On June 26, 2013, former Professional Football Player Aaron Hernandez was arrested and charged with the June 17th murder of semi-pro football player Odin Lloyd. During the trial, the prosecutor planned on having Alexander Bradley, an acquaintance of Hernandez, testify about an incident in which Hernandez allegedly shot Bradley. While no criminal charges were pressed on Bradley’s shooting, Bradley had filed a civil lawsuit in federal court seeking damages.

Hernandez’ defense team objected to such testimony, stating that, not only are Bradley’s accusations unsubstantiated, but the alleged incident clearly had nothing to do with the Lloyd murder case. The judge evaluated the probative value of Bradley’s testimony, and ruled that, although the prosecution argued that the two cases were similar, it could not use unproven claims of prior violence to prove that the accused had a “propensity” to commit violent crimes.

Related Legal Terms and Issues

  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
  • Prosecutor – A person, especially a public official, who institutes legal proceedings against someone.

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