§ 9.05 Rule 403 "Balancing"
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Rule 403 specifies the conditions under which a trial court is permitted to exclude relevant evidence.82 It is the most important rule in evidence law because every item of evidence raises a Rule 403 problem—at least in theory. The rule confers no authority to admit irrelevant evidence; Rule 402 mandates the exclusion of irrelevant evidence.
The application of Rule 403 requires a three-step process. First, the judge must determine the probative value of the proffered evidence. Second, the court must identify the presence of any of the enumerated dangers (unfair prejudice, confusion of issues, or misleading the jury) or considerations (undue delay, waste of time, or needless presentation of cumulative evidence). Finally, the court must balance the probative value against the identified dangers or considerations. If the enumerated dangers or considerations substantially outweigh the probative value of the evidence, exclusion is discretionary. The word "substantially" is significant; it makes Rule 403 biased in favor of admissibility.
There is a difference between the "dangers" and the "considerations" enumerated in Rule 403. Evidence that carries a risk of unfair prejudice, confusing issues, or misleading the jury is excluded because the jury may be incapable of rationally evaluating such evidence. In contrast, the exclusion of evidence that entails undue delay, wasting time, or needlessly presenting cumulative evidence rests on different grounds—conservation of judicial time. In short, the "dangers" affect the integrity of the factfinding process; the "considerations" affect only the efficiency of the courts.
[A] Estimating Probative Value
Assessing the probative value of proffered evidence is the first step in applying Rule 403. As noted earlier in this chapter, Rule 401 sets forth a low standard in defining relevant evidence. In applying Rule 403, however, the trial court must do more than determine that the evidence is relevant under Rule 401. Because the court is required under Rule 403 to balance the probative value against the specified dangers or considerations, the court must also estimate how much probative worth the evidence has. Every item of evidence does not have the same probative value. In a murder prosecution, for example, fingerprint evidence is generally more probative of identity than motive evidence. In the "wall" metaphor used above, some bricks are larger than others.
Remoteness. Cases often use the term "remoteness" in this context,83 meaning remote in time, although the word could also mean geographically remote. For example, a threat to kill the victim a day before the murder is far more probative than a threat made a year earlier. Remoteness by itself typically does not extinguish probative value but, by reducing probative value, it may play a part in the exclusion of evidence under Rule 403.
[B] Rule 403 "Dangers"
[1] Unfair Prejudice
Under Rule 403, relevant evidence may be excluded if the risk of unfair prejudice substantially outweighs its probative value. The rule requires exclusion only in the case of unfair prejudice. Most evidence introduced by one party is "prejudicial" to the other side, in the sense that it damages that party's position at trial. This is not the concern of Rule 403. Otherwise, the most probative evidence (e.g., a confession) would be excluded as the most "prejudicial." In other words, there is a difference between unfavorable and unfairly prejudicial evidence.84
Rule 403 comes into play only if the evidence is prejudicial in the sense that the jury may not rationally evaluate it. The federal drafters described unfair prejudice as "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one."85 A classic example is the admissibility of gruesome photographs in a homicide case. Sometimes crime scene photographs are charged with such immediacy and emotional impact that the risk of unfair prejudice is disproportionately enhanced. Yet, such photographs are not automatically inadmissible.86 Quite the contrary is true, but the judge may limit either the number of photographs or the jury's exposure to them.87
Other illustrations include: (1) testimony that "anyone linked to organized crime who is charged with a crime is in fact guilty of that crime"88; (2) testimony describing crimes as "serial killings"89; and (3) admitting "anarchist literature."90 Sometimes repetition produces unfair prejudice—e.g., permitting cross-examination "about each and every one of the ten violent 'rap' lyrics that Petitioner had written"91 or mentioning defendant's probationary status forty-four times during trial.92
Limiting evidence to its proper purpose. In addition to an appeal to emotion, unfair prejudice may involve the risk that a jury will use evidence improperly, despite a limiting instruction. For example, Rule 404(b) provides that evidence of other crimes may be admissible to prove motive, opportunity, intent, or preparation. Such evidence, however, is inadmissible if offered to prove character. If the jury uses the evidence to infer character (the improper purpose), the defendant will be unfairly prejudiced. Thus, if a court concludes that the risk of improper use is great, notwithstanding a limiting instruction, the probative value of the evidence for its proper use may be substantially outweighed by the risk of its improper use.93 The same analysis applies with hearsay. When the risk that the jury will use an extrajudicial statement for the prohibited hearsay inference rather than for the non-hearsay purpose that is offered as the rationale for admissibility, it may be excluded.94
[2] Confusing Issues
Evidence may also be excluded due to the risk of confusion of issues.95 Suppose, for instance, a plaintiff in a building-collapse case wants to introduce evidence of a prior collapse of another building, which was also constructed by the defendant. The reason for the prior collapse is disputed, and the resolution of this dispute would require numerous witnesses by each side. This may result in a "trial within a trial," and there is a risk that the jury will confuse the facts of one building collapse with the other. However, the evidence will not be automatically excluded under Rule 403. That possibility would depend on the court's weighing analysis.96
Collateral matters. Sometimes the term "collateral matters" is used in this context. It is an ambiguous term. It could refer to facts that are totally unrelated to any issue in the case. If used in this sense, the facts are immaterial under Rule 401, and the evidence must be excluded under Rule 402. On the other hand, a fact may be marginally relevant to a material issue, but proof of that fact would introduce the danger of confusion of issues.97 If that danger substantially outweighs the probative value, the evidence may be excluded under Rule 403.98
[3] Misleading the Jury
Rule 403 also identifies "misleading the jury" as a danger. Frequently, the dangers of "confusion of issues" and "misleading the jury" overlap. If the jury is confused, it can be misled. On the other hand, all misleading evidence may not result in confusion of issues. Scientific evidence is often cited for its potential to mislead the jury because it may "assume a posture of mystic infallibility in the eyes of a jury of laymen."99 Accordingly, "an exaggerated popular opinion of the accuracy of a particular technique may make its use prejudicial or likely to mislead the jury."100
Statistical evidence. If not properly presented, statistical evidence may also cause problems on this score.101 As one court has held, "[M]athematical odds are not admissible as evidence to identify a defendant in a criminal proceeding so long as the odds are based on estimates, the validity of which has not been demonstrated."102Interestingly, research on the subject suggests jurors do not overestimate this type of evidence.103
Third-party-guilt evidence. Courts may exclude evidence that another person committed the charged crime on the grounds that it may be misleading: "Mere inferences that another person could have committed the crime will most likely not be relevant, and if relevant will still be subject to the limitation provisions of I.R.E. 403."104 The result would be different if persuasive evidence is offered.105 Moreover, in Holmes v. South Carolina,106 the Supreme Court held that a defendant's constitutional rights were violated by an evidence rule that precluded the admission of proof of third-party guilt if the prosecution had introduced forensic evidence that, if believed, strongly supported a guilty verdict.
[4] Surprise
Common law cases often cited "unfair surprise" as a ground for excluding relevant evidence. This factor, however, is not specified in Rule 403. The federal drafters explained: "The rule does not enumerate surprise as a ground for exclusion, in this respect following Wigmore's view of the common law. While it can scarcely be doubted that claims of unfair surprise may still be justified despite procedural requirements of notice and instrumentalities of discovery, the granting of a continuance is a more appropriate remedy than exclusion of the evidence."107
Despite this position, unfair surprise may enter into Rule 403 determinations through the back door. If a party objects to the admissibility of evidence because of unfair surprise, the trial court has the option of granting a continuance. A continuance, however, may cause "undue delay," which is enumerated in Rule 403 as a factor justifying the exclusion of the evidence. In addition, if one party is surprised because the other party failed to comply with a discovery request, evidence could be excluded on that basis.108
[C] Rule 403 "Considerations"
Rule 403 permits exclusion based on undue delay, wasting time, or needlessly presenting of cumulative evidence.109 In contrast to the dangers enumerated in Rule 403, these factors...
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