C.r.e. 403: the Balancing Test

• Publication year: 2004
• Pages: 41
• Citation: Vol. 33 No. 2 Pg. 41

33 Colo.Law. 41 Colorado Lawyer 2004.

2004, February, Pg. 41. C.R.E. 403: The Balancing Test

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Vol. 33, No. 2, Pg. 41

The Colorado Lawyer
February 2004
Vol. 33, No. 2 [Page 41]

Specialty Law Columns
Civil Evidence
C.R.E. 403: The Balancing Test
by Lawrence M. Zavadil

This month's article was written by Lawrence M. Zavadil Of Counsel with Jacobs Chase Frick Kleinkopf & Kelley LLC - (303) 389-4644, lzavadil@jcfkk.com

Those interested in submitting an article for publication in Civil Evidence should contact the editor, Lawrence M. Zavadil, at (303) 389-4644 or lzavadil@jcfkk.com.

Q: When is evidence properly excluded as unfairly prejudicial under C.R.E. 403?

A: C.R.E. 403 strongly favors admission of evidence. For evidence to be excluded as unfairly prejudicial, it must have an undue tendency to suggest a decision on an improper basis. Evidence is not unfairly prejudicial merely because it is damaging to a party.

Assumed Facts

Joe Slacker, a married man with children, sues Jane Upright for alleged back injuries sustained in an automobile accident. Slacker alleges that the accident left him with permanent back injuries that limited his range of motion and caused a loss of enjoyment of life. Slacker does not claim that his injury prohibits him from getting around.

Upright hires a private investigator to videotape Slacker's daily activities. The investigator obtains footage of Slacker driving to and entering on foot a rowdy, local pub and a brothel. However, the investigator was unable to videotape Slacker's activities within either establishment. Upright seeks to introduce the investigator's videos as evidence that Slacker's alleged injury is a sham. Slacker objects that the evidence is unfairly prejudicial under C.R.E. 403.

The trial court permits the videos to be shown to the jury and gives the jury a limiting instruction that defendant's character is not at issue, and the videos should only be considered in relation to Slacker's claim of a loss of range of motion. The jury returns a defense verdict and Slacker appeals on the ground that the trial court wrongfully admitted the videos. How should the appellate court rule?

Discussion

C.R.E. 403 gives the court discretion to exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice. . . ."1 The trial court's ruling will...