Do you agree with the following? Conclude "yes" or "no" and explain why. In your explanation, be sure to provide the rule and apply the law to the facts.

Yes the photo should be admitted. Under the facts Dustin has been charged with murder - which is the unlawful killing of a human with malice afterthought. When assessing the mens rea or intent, we need to look at whether there was an "intent to kill" or "intent to inflict great bodily harm." In this instance Dustin has admitted to killing Valerie but he has claimed "self defense" which can be claimed by Dustin where he acted "to prevent serious bodily harm." The photo sought to be admitted shows that Valerie was dead in a pool of blood but, importantly, it also showed her hands were cut off following Valerie being shot by Dustin. The relevant rules of evidence are R 401 and R 403 of the Federal Rules of Evidence (FRE). R 401 serves as a "gating" test, in that it states that "evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action": R 401 (a) and (b): https://www.law.cornell.edu/rules/fre/rule_401 Under R 403 of the FRE, the court has a discretion to "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." https://www.law.cornell.edu/rules/fre/rule_403#:~:text=The%20court%20may%20exclude%20relevant,or%20needlessly%20presenting%20cumulative%20evidence. Clearly the photos of Valerie showing the removed hands are relevant under R 401 as they show the severity of the death and how it was carried out. This in particular goes to the state of mind of Dustin when the death occurred. In a case of self defense, the fact of the severed hand tends to assist the prosecution to show that Dustin went beyond just preventing serious harm to himself. Rather, it tends to show intent for the murder charge that he acted with intend to inflict great bodily harm. As to the potential prejudice of showing the photo, under R 403 the defense needs to prove that the probative value is "substantially outweighed" by the risk of unfair prejudice. As noted in the text .... "The balance is deliberately weighted in favor of admissibility. .... Thus a small amount of prejudice, or even a significant amount, is not enough to exclude if the probative value is high." P 82 Given this, the photo should be admitted in evidence. The potential risk of prejudice due to the horrific image the photo depicts of severed hands does not outweigh its probative value of going to intent of Dustin at the time of the death. It tends to show that the death was violent and that Dustin went beyond just defending himself but intended to kill Valerie in support of the prosecutions murder claim.