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The Basics of Rule 403

June 16, 2011

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

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.

Here are the “key concepts” of Rule 403

Excluding relevant evidence pursuant to Rule 403 is an extraordinary remedy!

“In weighing the probative value of evidence against the dangers and considerations enumerated in Rule 403, the general rule is that the balance should be struck in favor of admission.”  U.S. v. Dennis, 625 F.2d 782, 797 (8th Cir. 1980).  “Courts have characterized Rule 403 as an extraordinary remedy to be used sparingly because it permits the trial court to exclude otherwise relevant evidence.”
U.S. v. Meester, 762 F.2d 867, 875 (11th Cir. 1985).

Steven Goode & Olin G. Wellborn III, Courtroom Evidence Handbook, p 80, note (2) (West, Student Ed. 2010-11).

A ruling to exclude evidence under Rule 403 is within the trial judge’s discretion!

Rule 403 provides that:

“. . . evidence may be excluded . . . .”

Here is a very good statement from one of my favorite resources on evidence:

“Particular deference is appropriate” to trial court determinations of the Rule 403 balance; “[i]ndeed, a trial judge’s decision to admit or exclude evidence under Fed.R.Evid. 403 may not be reversed unless it is ‘arbitrary and irrational.'”

Goode & Wellborn, p 81, note (3).

What is “Probative Value?”

“[W]hat counts as the Rule 403 ‘probative value’ of an item of evidence, as distinct from its Rule 401 ‘relevance,’ may be calculated by comparing evidentiary alternatives.”  Old Chief v. United States, 519 U.S. 172, 184 (1997).  “Probity in this context is not an absolute; its value must be determined with regard to the extent to which the [fact] is established by other evidence, stipulation, or inference.  It is the incremental probity of the evidence that is to be balanced against its potential for undue prejudice.”  (citations omitted)  “[W]hile prosecutorial need alone does not mean probative value outweighs prejudice, … the more essential the evidence, the greater its probative value, and the less likely that a trial court should order the evidence excluded.”  (citations omitted).

Goode & Wellborn, p 81, note (4).

What is balanced on the other side of probative value?

On the other side from probative value, the court must weigh one or more of the following considerations:

1. Unfair Prejudice

  • What is “unfair?”
  • “. . . an undue tendency to suggest decision on an improper basis.”  Advisory Comm. Notes.

According to Professors Saltzburg, Martin, and Capra in Federal Rules of Evidence Manual (9th Ed. 2006):

Unfair prejudice is that which could lead the jury to make an emotional or irrational decision, or to use the evidence in a manner not permitted by the rules of evidence.  Professor Lempert, in Modeling Relevance, 75 Mich. L. Rev. 1021 (1977), defines [unfairly] prejudicial evidence as “any evidence that influences jury verdicts without relating logically to the issue of guilt or innocence.”  We would prefer a slightly different definition:

“[unfairly] prejudicial evidence is any evidence that affects the trier of fact in a manner not attributable to the permissible probative force of the evidence.”

This definition makes clear that evidence that strongly relates to the issue of guilt or liability might still be highly prejudicial, and also that evidence that is probative for a permissible use may nonetheless be prejudicial because the jury could use it for an impermissible purpose.

2. Confusion of the Issues

“. . . if it would tend to distract the jury from the proper issues.”

Goode & Wellborn, p 82, note (7).

3. Misleading the Jury

“. . . the possibility that the jury might attach undue weight to the evidence.”

Goode & Wellborn, p 83, note (8).

4. Undue Delay, Waste of Time, Cumulative Evidence

  • Focus on the “. . . the harm of delay.”
  • Cumulative evidence is not to be excluded unless its presentation is “needless.”
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