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.

(Federal Rule Identical.)


Law reviews. For article, "Admissibility of Governmental Studies to Prove Causation", see 11 Colo. Law. 1822 (1982). For article, "DNA: The Eyewitness of the Future", see 18 Colo. Law. 1333 (1989). For article, "Impeachment", see 22 Colo. Law. 1207 (1993). For article, "Adverse Inferences Due to Invocation of the Fifth Amendment", see 25 Colo. Law. 43 (March 1996). For article, "Limits on Attorney-Expert Opinions in Jury Trials Under C.R.E. 403, 702, and 704", see 31 Colo. Law. 53 (March 2002). For article, "Polygraph Examinations: Admissibility and Privilege Issues", see 31 Colo. Law. 69 (Nov. 2002). For article, "C.R.E. 403: The Balancing Test", see 33 Colo. Law. 41 (Feb. 2004). For article, "The Admissibility of Evidence of the Pre-Trial Exercise of Constitutional Rights", see 37 Colo. Law. 81 (July 2008). For comment, "Reverse 404(b) Evidence: Exploring Standards When Defendants Want to Introduce Other Bad Acts of Third Parties", see 79 U. Colo. L. Rev. 587 (2008). For article, "The Expanding Use of the Res Gestae Doctrine", see 38 Colo. Law. 35 (June 2009). For article, "The Doctrine of Chances After People v. Jones", see 43 Colo. Law. 57 (July 2014). For article, "Waiver and Plain Error Review: The Case Law Framework", see 49 Colo. Law. 34 (Jan. 2020).

To show an abuse of discretion for excluding relevant evidence, appellant must establish that the trial court's decision was manifestly arbitrary, unreasonable, or unfair. People v. Gibbens, 905 P.2d 604 (Colo. 1995); Bonser v. Shainholtz, 3 P.3d 422 (Colo. 2000); People v. Perry, 68 P.3d 472 (Colo. App. 2002); People v. Ortiz, 155 P.3d 532 (Colo. App. 2006).

When reviewing a determination under this rule for abuse of discretion, the appellate court must afford the evidence the maximum probative value attributable by a reasonable factfinder and the minimum unfair prejudice to be reasonably expected. Bonser v. Shainholtz, 3 P.3d 422 (Colo. 2000); People v. Ortiz, 155 P.3d 532 (Colo. App. 2006).

If evidence is relevant, it is admissible unless its probative value is outweighed by the countervailing factors of this rule. Scognamillo v. Olsen, 795 P.2d 1357 (Colo. App. 1990); People v. Hulsing, 825 P.2d 1027 (Colo. App. 1991).

Probative value of the evidence was substantially outweighed by the danger of unfair prejudice, because: (1) it explained how defendant became a suspect, an important point because, absent this explanation, the jury would be left to speculate as to how defendant became a suspect and because defendant's defense was mistaken identity; and (2) it showed the thoroughness of the police investigation and analysis, which was important since defendant's counsel had challenged the reliability of DNA analysis, partly by suggesting that the investigator was biased. Additionally, witness only mentioned the DNA databases briefly, and did not testify as to how the defendant's DNA profile came to be in the second database. Finally, no evidence was presented as to how any individual's DNA profile might come to be in either DNA database, and no evidence was presented that defendant had previously engaged in any criminal activity. Under the circumstances, any inference of prejudice was speculative. People v. Harland, 251 P.3d 515 (Colo. App. 2010).

In performing the C.R.E. 403 balance on review, the proffered evidence should be given its maximal probative weight and its minimal prejudicial effect. People v. District Court of El Paso County, 869 P.2d 1281 (Colo. 1994); People v. Cousins, 181 P.3d 365 (Colo. App. 2007).

Colorado rules of evidence strongly favor the admission of evidence. The trial court has broad discretion in determining the admissibility of evidence, and the trial court's decision will only be reviewed for abuse of discretion. People v. Medina, 51 P.3d 1006 (Colo. App. 2001), aff'd on other grounds, 71 P.3d 973 (Colo. 2003).

"Unfair prejudice" should be construed to mean the prejudice from the proponent's evidence. Unfairly prejudicial evidence which may never be presented unless the defendant pursues it on cross-examination is not a sufficient basis to exclude otherwise admissible testimony. People v. District Court of El Paso County, 869 P.2d 1281 (Colo. 1994).

Rule was designed to permit trial courts the discretion of excluding relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. McKown-Katy v. Rego Co., 776 P.2d 1130 (Colo. App. 1989), rev'd in part on other grounds, 801 P.2d 536 (Colo. 1990).

An objection to the relevance of evidence does not include an objection that the evidence, if admissible, is unduly prejudicial under this rule because of the substantial difference in analysis trial courts perform under C.R.E. 401 and this rule. Am. Family Mut. Ins. Co. v. DeWitt, 216 P.3d 60 (Colo. App. 2008), aff'd, 218 P.3d 318 (Colo. 2009).

Trial courts are accorded considerable discretion in determining whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice or needless presentation of cumulative evidence. People v. Clary, 950 P.2d 654 (Colo. App. 1997); Bonser v. Shainholtz, 3 P.3d 422 (Colo. 2000).

When the rules of evidence and Colo. RPC 3.4(b) overlap, the proper approach is for trial courts to balance the probative value of the evidence against the danger of unfair prejudice. Murray v. Just In Case Bus. Lighthouse, 2016 CO 47M, 374 P.3d 443.

In so doing, trial courts should not exclude testimony from improperly compensated witnesses unless they determine that the testimony's danger of unfair prejudice substantially outweighs its probative value. Murray v. Just In Case Bus. Lighthouse, 2016 CO 47M, 374 P.3d 443.

The trial court is best situated to decide on a case-by-case basis whether the testimony of a witness compensated under a contingent fee agreement so prejudices the fairness of the litigation that it requires exclusion of the improperly compensated witness's testimony. Murray v. Just In Case Bus. Lighthouse, 2016 CO 47M, 374 P.3d 443.

Defendant entitled to present evidence creating doubt as to guilt. A defendant is entitled to all reasonable opportunities to present evidence which might tend to create a doubt as to his guilt. People v. Bueno, 626 P.2d 1167 (Colo. App. 1981).

Evidence of similar transactions. Subject to this rule and the general rules of admissibility, evidence of similar transactions, when offered by the defendant, is admissible as long as it is relevant to the guilt or innocence of the accused. People v. Bueno, 626 P.2d 1167 (Colo. App. 1981); People v. Flowers, 644 P.2d 916 (Colo. 1982), appeal dismissed, 459 U.S. 803, 103 S.Ct. 25, 74 L. Ed. 2d 41 (1982).

In eminent domain valuation hearing concerning street condemned by department of highways, trial court properly admitted evidence of sales occurring after date of valuation as comparable sales where sales were sufficiently comparable in character, close in time, and in location to be probative of the value of the street and where the risk that the commissioners would be prejudiced, confused, or misled was slight. State Dept. of Hwys. v. Town of Silverthorne, 707 P.2d 1017 (Colo. App. 1985), cert. dismissed, 736 P.2d 411 (Colo. 1987).

When applying the liberal standard under C.R.E. 702 for determining the admissibility of scientific evidence, the court must also apply its discretionary authority under this rule to ensure that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, undue delay, waste of time, or needless presentation of cumulative evidence. People v. Shreck, 22 P.3d 68 (Colo. 2001).

While C.R.E. 401 and this rule reflect liberal admission of evidence, this rule, in conjunction with C.R.E. 702, tempers broad admissibility by giving courts discretion to exclude expert testimony unless it passes more stringent standards of reliability and relevance. People v. Martinez, 74 P.3d 316 (Colo. 2003).

Issues concerning alleged deficiencies in the chain of custody go to the weight rather than the admissibility of evidence. People v. Gomez, 632 P.2d 586 (Colo. 1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L. Ed. 2d 655 (1982); People v. Moltrer, 893 P.2d 1331 (Colo. App. 1994).

Even though trial court did not consider whether evidence was unfairly prejudicial in ruling evidence was inadmissible, appellate court may consider whether it was unfairly prejudicial in determining whether trial court correctly determined the evidence was inadmissible. People v. Garcia, 179 P.3d 250 (Colo. App. 2007).

When evidentiary ruling overturned as abuse. Only where the prejudicial effect of an evidentiary item outweighs its probative value will the trial court's evidentiary ruling be overturned as an abuse of discretion. People v. Abbott, 638 P.2d 781 (Colo. 1981); People v. Durre, 713 P.2d 1344 (Colo. App. 1985); People v. Wells, 754 P.2d 420 (Colo. App. 1987), rev'd on other grounds, 776 P.2d 386 (Colo. 1989).

Admissibility of photographs into evidence in a homicide prosecution is a matter within the discretion of the trial judge, who must weigh their probative value against their potential inflammatory effect on the jury; the trial judge's determination will not be disturbed on review absent an abuse of discretion. People v. White, 199 Colo. 82, 606 P.2d 847 (1980); People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981); People v. Dillon, 633 P.2d 504 (Colo. App. 1981); People v. Unrein, 677 P.2d 951 (Colo. App. 1983); People v. Guffie, 749 P.2d 976 (Colo. App. 1987).

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