1. Rule 403 is known to all lawyers as the "prejudice" rule. It says that relevant evidence may be excluded if its probative value is substantially outweighed by its prejudicial effects
2. Determining "probative value" is at the discretion of the judge. In general, it is determined by:
A) How logically related is the evidence to the key disputes?
B) How important is the issue to the resolution of the case?
C) How necessary is the evidence (i.e., how much other evidence with lower prejudicial effect has already been introduced or will be introduced?)
D) Remoteness (how far removed in space and time from the people, places, and events being litigated)
3. The amount of "prejudicial effect" is also determined by the judge. In general, it means:
A) The extent to which information UNFAIRLY arouses the emotions of the jury. Emotionalism is unfair if it is not connected to the facts of the case. For
example, evidence of child abuse is always emotional, but whether it is unfairly emotional depends on the case. If the defendant is charged with burglary,
getting the jury all riled up about child abuse is unfair, but if the defendant is charged with child abuse, the emotionalism is inherent in the case itself, and is
"fair" prejudice.
B) Whether the evidence involves some subject likely to get church-going folks all upset, such as sex, drugs and rock and roll.
C) Whether the information will come as a shock to the jury or they already know about it.
D) Whether there is less prejudicial evidence available. See Old Chief case.
4. Rule 403 mentions two categories in addition to unfair prejudice under which relevant evidence may be excluded: confusion of the issues, and waste of
time.
A) The rule also mentions "confusion of issues or misleading the jury" as a ground for exclusion, but the book does not discuss it. Confusion of the issues
arises when evidence is brought in from a different case or that relates to an issue that has been dismissed, severed, or stipulated. For example: If a plaintiff
sues two defendants and one settles, it will be the judge's job at the end of trial to reduce the verdict by the amount already paid, so introducing evidence that a
co-defendant admitted fault and paid damages would be confusing. It is generally not objectionable that your opponent's evidence is factually confusing.
B) The rule also mentions "waste of time" as a ground for exclusion, but this too is not explained in book. It is generally interpreted as giving judges discretion
to cut off relevant testimony that has become protracted. E.g., if a crime were committed in front of a law school class, and the prosecution subpoenaed all 120
students, after about 15 have testified, the judge is likely to run out of patience.
5. To make a specific objection, you must make clear which of the three Rule 403 dangers you are invoking.
6. Note that Rule 403 also says that prejudicial evidence MAY be excluded, not that it must be. Judges have tremendous discretion.
7. Note that Rule 403 also declares that the judge may exclude relevant evidence only if prejudicial effect SUBSTANTIALLY outweighs probative value, which is consistent with our policy that strongly favors admissibility over exclusion.
8. A number of situations involving evidence of marginal relevance come up repeatedly. In such situations, there have been enough court cases that we can
state a "rule of thumb" based on how most courts rule most of the time. These are only rules of thumb. Each time such evidence is admitted, the judge must
engage in Rule 403 balancing and has virtually unlimited discretion to admit or exclude the evidence. There are six common ones:
a) Acts by a party showing consciousness of guilt or wrongdoing are admissible, such as a criminal suspect fleeing to avoid apprehension, or Enron shredding
documents.
b) Evidence of poverty or wealth is not admissible except on the issue of the measure of punitive damages
c) Evidence of prior similar occurrences is admissible to show notice, dangerous condition, or the cause of an accident if they took place under substantially
similar conditions.
d) Gruesome photographs are admissible if they show injuries caused by the defendant. They are not permitted if they show the body in an altered condition.
e) Evidence that a person other than the accused may have committed a crime is admissible if it tends to exclude the defendant as the perpetrator, i.e., if the
crime was committed by only one person.
f) Evidence of shoddy police work is not admissible unless connected specifically to the reliability of evidence introduced at trial, e.g., Mark Fuhrman's biased
police work in the O.J. Simpson case.
9. A final concept in relevancy is "conditional" relevance, also known as "connecting up." It is often the case that the relevance of an item of evidence depends on whether the proponent can prove a connecting fact. For example, in the O.J. Simpson civil trial, the plaintiff offered into evidence a photograph taken 5 years before the killing purporting to show O.J. wearing fancy Italian shoes. The relevancy of this photograph depends on whether the plaintiff can connect it to the crime with evidence that fancy Italian shoe prints were found at the scene. Normally, the connecting fact must be proved before the main fact. However, Rule 104 gives the judge discretion to admit evidence "subject to connection" and allow the proponent to prove the connecting fact later.