United States v. Joe Charles Walters

ELY, Circuit Judge

(concurring):

I concur in the majority’s opinion. The only troublesome question involves the admission into evidence of a pistol *390not proved to have been used in the robbery. The majority correctly quotes from United States v. Ravitch, 421 F.2d 1196 (2d Cir. 1970), cert. denied, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66 (1970). I think it desirable, however, to emphasize another portion of the Second Circuit’s language in that opinion. It reads:

“Notwithstanding the relevance of the guns and the ammunition, the trial judge would have been justified in excluding them if he decided that their probative value was outweighed by their tendency to confuse the issues or inflame the jury.”

421 F.2d at 1204. This qualifying language is significant. It more completely announces the proper and desirable standard, conferring upon our district judges the power to exercise reasonable discretion to the end that an accused not be unnecessarily or unfairly prejudiced. I have no reason to believe that my Brothers object to this recognition of the power of our district judges in that respect.