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

• Jurisdiction: Arizona

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.

Comment

Even though evidence is relevant and no other specific rule or statute precludes its admission, the trial court may still exclude it under Rule 403 if certain factors substantially outweigh the probative value of the evidence. The first group of these factors (unfair prejudice, confusion of the issues, and misleading the jurors) generally applies to those situations where the jurors may misconstrue the probative value of the evidence, and make their decision on an emotional rather than a rational basis.[1] Rules 404 and 407 through 411 provide specific applications of this principle, and serve as a guide for the courts to follow in applying Rule 403 to situations where no specific rules have been formulated. In this context, the courts should note that Rule 403 gives the trial court the power to exclude evidence that is unfairly prejudicial. Because the whole purpose of the adversarial system is for one party to introduce evidence that prejudices the other party's case, the trial court should not exclude evidence merely because it is prejudicial, it should do so only if the evidence is unfairly prejudicial. The remaining factors (undue delay, waste of time, and needless presentation of cumulative evidence) generally apply to evidence that is unnecessary rather than untrustworthy.[2]

The trial court is not required sua sponte to weigh the danger of unfair prejudice against probative value unless the party against whom the evidence is offered objects on that basis.[3] Thus, if a defendant does not object on the basis of Rule 403 at trial, the defendant will have waived that claim on appeal absent fundamental error.

Because the determination under this rule involves a weighing and balancing of competing evidentiary factors, it is a determination that the trial court is in the best position to make. It is therefore a determination the appellate court should leave to the discretion of the trial court, and one for which the appellate court should not substitute its determination of how it would have ruled if it had been sitting as the trial court.[4]

Civil Cases

403.civ.010 If evidence is relevant and therefore admissible, a trial court may not exclude that evidence unless the opposing party establishes that the evidence poses the danger of unfair prejudice, and establishes that the unfair prejudice substantially outweighs the probative value.

Readenour v. Marion Power Shovel, 149 Ariz. 442, 719 P.2d 1058 (1986) (appellate court may not substitute its judgment for that of trial court and utilize Rule 403 to exclude evidence after trial court has weighed the factors and decided in favor of admissibility).

Conant v. Whitney, 190 Ariz. 290, 947 P.2d 864 (Ct. App. 1997) (plaintiffs were injured when they ran into a bull owned by defendant; evidence that Forest Service land on which defendant had a grazing permit did not permit bulls was not unfairly prejudicial).

Miel v. State Farm Ins. Co., 185 Ariz. 104, 912 P.2d 1333 (Ct. App. 1995) (in a suit for bad faith in failing to settle a claim, articles from company's newsletter and a portion of company's claims manual, all discussing handling excess liability claims, were relevant because they addressed company's approved policies and procedures for handling such claims, and were not prejudicial because claims representative admitted she did not follow established company procedures in handling claim), rev. dismissed, 186 Ariz. 370, 923 P.2d 836 (1996).

Haynes v. Syntek Fin. Corp., 184 Ariz. 332, 909 P.2d 399 (Ct. App. 1995) (in a trial for damages resulting from a fall on sidewalk in defendant's apartment complex, photographs of other deteriorating sidewalks there were relevant to show defendant's knowledge (notice) of unsafe condition, and when weighed against this high probative value, there was little danger of unfair prejudice).

Gibbs v. O'Malley Lumber Co., 177 Ariz. 342, 868 P.2d 355 (Ct. App. 1994) (because testimony was relevant to whether product was defective and unreasonably dangerous and relevant to foreseeability issue, and because trial court instructed jurors on how to use this information for a proper purpose, danger of unfair prejudice did not substantially outweigh probative value, even though many of defendant's witness's answers alluded to defendant's lack of knowledge about product).

Town of Paradise Valley v. Laughlin, 174 Ariz. 480, 851 P.2d 109 (Ct. App. 1992) (even though price owner paid for property was quite low in comparison to what owner claimed property was now worth, owner failed to show how evidence of purchase price of property would be unfairly prejudicial).

Rhue v. Dawson, 173 Ariz. 220, 841 P.2d 215 (Ct. App. 1992) (evidence of defendant's alcoholism was relevant because alcoholism could affect his credibility and memory loss, and although this evidence was prejudicial, defendant failed to show that it was unfairly prejudicial or that any unfair prejudice substantially outweighed probative value).

Pankratz v. Willis, 155 Ariz. 8, 744 P.2d 1182 (Ct. App. 1987) (because telephone conversation merely established that wife was in Switzerland at one point, which was consistent with her stated intentions and consistent with appellants' own testimony, tape recording of telephone conversation was not unduly prejudicial to appellants).

Papastathis v. Beall, 150 Ariz. 279, 723 P.2d 97 (Ct. App. 1986) (merely because evidence is prejudicial to one party does not mean trial court is incorrect in admitting it; trial court properly admitted evidence that safer soft drink racks were available since this evidence would assist jurors in determining whether defendant was negligent in selecting racks it did).

Maxwell v. Aetna Life Ins. Co., 143 Ariz. 205, 693 P.2d 348 (Ct. App. 1984) (trial court properly admitted evidence that defendant's employees were aware of a particular civil case establishing tort of insurer bad faith even though name of defendant in that case was similar to defendant's name, and properly admitted evidence of wife's suicide as relevant to timing of defendant's decision to resume paying disability benefits).

English-Clark v. City of Tucson, 142 Ariz. 522, 690 P.2d 1235 (Ct. App. 1984) (in action alleging use of excessive force in arresting plaintiff, trial court properly excluded list of citizen complaints against officer since plaintiff never offered any evidence to substantiate circumstances surrounding complaints).

Thompson v. Sun City Comm. Hosp., Inc., 142 Ariz. 1, 688 P.2d 647 (Ct. App. 1983) (because plaintiff did not offer any information about circumstances of other incidents when defendant allegedly failed to treat indigent patients, trial court did not abuse discretion in excluding such evidence), approved, 141 Ariz. 597, 688 P.2d 605 (1984).

Dunlap v. Jimmy GMC of Tucson, Inc., 136 Ariz. 338, 666 P.2d 83 (Ct. App. 1983) (in consumer fraud case, trial court did not abuse discretion in concluding that evidence of past deceptive sales practices had probative value, and that prejudicial effect of this evidence did not substantially outweigh probative value).

403.civ.020 If evidence is relevant and therefore admissible, a trial court may exclude that evidence if the opposing party establishes that the evidence poses the danger of unfair prejudice, and establishes that the unfair prejudice substantially outweighs the probative value.

Walker v. State, 161 Ariz. 621, 780 P.2d 454 (Ct. App. 1989) (because any impropriety in state's handling of another person's license had little, if any, probative value on issue of how state handled plaintiff's license, trial court properly excluded this evidence).

Rodriguez v. Schlittenhart, 161 Ariz. 609, 780 P.2d 442 (Ct. App. 1989) (because other accident occurred 31 years prior to one being litigated, involved a young child rather than a 19-year-old, and involved a ground-mounted transformer rather than one on a 7-foot platform, trial court did not abuse discretion in concluding that prejudicial effect of other accident evidence substantially outweighed probative value).

Ornelas v. Fry, 151 Ariz. 324, 727 P.2d 819 (Ct. App. 1986) (in medical malpractice case, trial court properly ruled that plaintiff could not introduce evidence of defendant's alcoholism unless plaintiff first presented evidence that defendant was intoxicated or impaired at time of surgery since mere evidence of alcoholism would be unfairly prejudicial).

Ornelas v. Fry, 151 Ariz. 324, 727 P.2d 819 (Ct. App. 1986) (trial court did not abuse its discretion in denying motion to conduct a psychological examination of defendant since only purpose was to establish defendant's alcoholism, which would have been irrelevant without further showing how it related to litigation).

West Pinal Family Health Ctr., Inc. v. McBryde, 162 Ariz. 546, 785 P.2d 66 (Ct. App. 1989) (because filing a lis pendens is not required by doctrine of mitigation of damages, and because introducing evidence of plaintiff's decision not to file a lis pendens might lead jurors to conclude plaintiff failed to do some required act, prejudicial effect of this evidence would outweigh any probative value).

403.civ.040 If evidence is relevant and therefore admissible, a trial court may exclude that evidence if the opposing party establishes that the evidence poses the danger of confusing the issues or misleading the jurors, and establishes that this danger of confusing the issues substantially outweighs the probative value.

Bradshaw v. State Farm Ins. Co., 157 Ariz. 411, 758 P.2d 1313 (1988) (there was no indication that defendant insurance company ever relied on A.R.S. Sec. 28-624, which details rights and duties of driver of an emergency vehicle; therefore, in deciding whether to...