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United States v. Hitt - 981 F.2d 422 (9th Cir. 1992)


The district judge has wide latitude in making Fed. R. Evid. 403 decisions. But this latitude is not unlimited. Where the evidence is of very slight, if any probative value, it is an abuse of discretion to admit it if there is even a modest likelihood of unfair prejudice or a small risk of misleading the jury.


Dalee Lee Hitt was charged with possession of an unregistered machine gun in violation of 26 U.S.C. § 5861(d). The government alleged that Hitt had altered a semiautomatic rifle so it would discharge more than one shot per trigger pull - the defining characteristic of a machine gun. Intending to show that the rifle would in fact rapid-fire, the government introduced a photograph of the rifle which, it argued, showed that the rifle was neither dirty, worn nor defective. However, the photograph showed nothing of the gun’s interior. Furthermore, the photograph showed the photo of the gun surrounded by other weapons, including assault rifles, not belonging to Hitt. Hitt objected to the admission of the photograph under Fed. R. Evid. 403, but the district court overruled his objection. Consequently, Hitt was convicted. On appeal, Hitt argued that under Fed. R. Evid. 403, the district court erred in admitting the state’s photo as part of the evidence.


Was the trial court’s admission of the photograph of a rifle surrounded by other weapons, including assault rifles, proper?




The Court reversed, concluding that the photo had little probative value; although it was introduced to show that the gun was not dirty or defective, the photo showed only the outside of the gun, and the argument was over whether internal dirt or defect caused it to fire like a machine gun. The Court further held that it was error for the trial court to admit the photo because its small probative value was outweighed by the likelihood of unfairly prejudicing Hitt, and the error was not harmless because the photo may have made the different between conviction and acquittal.

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