Joseph A. and Sari F. Deihl - Page 20

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          The videotape, by its nature, would not even connect any                    
          individual outlay reflected in petitioners’ ledgers, credit card            
          statements, etc., to any specific business function during the              
          years in issue, since the tape purports to cover only a general             
          modus operandi from 1993 through 1999.  Nor would it afford the             
          Court a rational foundation, for example, to estimate the                   
          percentage of business versus personal use for a given type of              
          expense, since the tape purports to show only business events.              
          The Court cannot conclude that the video conforms to the                    
          definition of relevant evidence in rule 401 of the Federal Rules            
          of Evidence.                                                                
               Furthermore, even assuming that the videotape could clear              
          the relevancy hurdle, the evidence would properly be excluded               
          under rule 403 of the Federal Rules of Evidence, which reads:               
          “Although relevant, evidence may be excluded if its probative               
          value is substantially outweighed by the danger of unfair                   
          prejudice, confusion of the issues, or misleading the jury, or by           
          considerations of undue delay, waste of time, or needless                   
          presentation of cumulative evidence.”  As indicated in the                  
          preceding discussion, the tape would be needlessly cumulative on            
          this record.                                                                
               Respondent did not object to admission of the photographs              
          offered by petitioners as generally showing petitioners’                    
          promotional activities, including conventions, training, and                






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