Rule 2:403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, Misleading the Jury, or Needless Presentation of Cumulative Evidence

LibraryA Guide to the Rules of Evidence in Virginia (Virginia CLE) (2021 Ed.)

Rule 2:403. EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, MISLEADING THE JURY, OR NEEDLESS PRESENTATION OF CUMULATIVE EVIDENCE

Relevant evidence may be excluded if:

(a) the probative value of the evidence is substantially outweighed by (i) the danger of unfair prejudice, or (ii) its likelihood of confusing or misleading the trier of fact; or

(b) the evidence is needlessly cumulative.

NOTES

Unfair prejudice. This Rule of Evidence recognizes the power of the court to exclude otherwise admissible evidence as unduly prejudicial. See, e.g., Commonwealth v. Proffitt, 292 Va. 626, 635-36 (2016); Gamache v. Allen, 268 Va. 222, 227 (2004) (exclusion where prejudicial impact substantially outweighs legitimate probative value); General Motors Corp. v. Lupica, 237 Va. 516, 522 (1989) (citing cases). Virginia courts have long been careful to assess the prejudicial impact of proffered evidence, and this review has been endorsed by the Supreme Court of Virginia. For example, in Seilheimer v. Melville, 224 Va. 323, 328 (1982), the court stated: "The trial judge, in his discretion, had the responsibility of weighing the probative value of the evidence on this main issue against . . . its possible prejudicial effect." See Jackson v. Commonwealth, 267 Va. 666 (2004) (direct, eyewitness testimony); Yazid Abunaaj v. Commonwealth, 28 Va. App. 47 (1998) (admission of evidence of HIV infection).

Virginia law generally favors admission of all relevant evidence. See generally Rules 2:401 and 2:402, and the several cases cited in Notes accompanying those provisions. Thus, the present Rule calls for the exclusion of relevant evidence only when its probative value is substantially outweighed by unfair prejudice. Egan v. Butler, 290 Va. 62 (2015); Norfolk & Portsmouth Belt Line R.R. v. Wilson, 276 Va. 739 (2008); Gamache v. Allen, 268 Va. 222 (2004); Brown v. Commonwealth, 3 Va. App. 182, 187 (1986) (exclusion of otherwise relevant evidence where the prejudice is...

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