Rule 403: Misuse

Why is Rule 403 so difficult?  Well, it is not any more difficult than any other rule, but judges still manage to make it so. 

“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.”

F.R.E. 403.

Judges fail to properly administer Rule 403 in two contexts.  First, they misunderstand what is meant by “unfair prejudice”.  Second, they fail to properly balance the probative value in relation to the potential ill-effects that Rule 403 contemplates.

First, the term “unfair prejudice” is of utmost importance.  The notes to Rule 403 state that “unfair prejudice” is defined as “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”  As the common argument goes, almost all evidence presented by one side is prejudicial to the other side.  That is very much the point of a trial.  The question is not whether the evidence is highly prejudicial to the other side, but rather whether the evidence is unfairly prejudicial.  At the root of this determination is whether the finder of fact with make a determination on an improper basis. 

Second, the test as to whether the evidence is admissible is whether the probative value is substantially outweighed by the danger of such unfair prejudice.  There are a couple key terms in this test that are all too often overlooked.  First, the term “danger”.  Rule 105 allows for a limiting instruction to be given to the finder of fact.  This will limit the danger (to some degree) in almost every circumstance.  Will it limit the danger enough?  That depends on the balancing itself.  This brings us to the second term - “substantially”.  In order to bar such evidence, the gatekeeper must find that the danger of unfair prejudice substantially outweighs the probative value.  Inherently, this gives discretion to the judge.  What is a substantial amount?  What is substantial to one may not be to another. 

However, all too often judges find that the “probative value does not outweigh the prejudicial effect” or that the “prejudicial effect outweighs the probative value.”  This finding is wrong on both levels: not only is it suppose to be a question of probative value vs. unfair prejudice, but also the balancing of the test is suppose to be that of the probative value being substantially outweighed by the danger of unfair prejudice. 

Rule 403 is meant to serve as a residuary rule of evidence.  It is meant to be used in the infrequent circumstance where the proffered evidence is sound in every other way but creates to large of a risk for an improper determination.  Unfortunately, this is not how the rule is used.  Based on the discretion that it gives judges, it is used time and time again to allow the judge to prohibit otherwise admissible evidence when the judge sees fit.