UNFAIR PREJUDICE (U)

FRE 403

This is the “catch-all” rule of the Federal Rules of Evidence. It may be applied with any other rule. Evidence, regardless of relevance, may be excluded if its probative value is substantially outweighed by the risk of unfair prejudice, confusion, or delay. Use this objection only when necessary, as the courts favor admissibility over exclusion and therefore, apply the rule sparingly.

Examples

• “For the jury, please hold your hand as one would hold a gun and yell, ‘Bang, you’re dead.’”
• “As an actor, you had jumped from that balcony several times in a previous play titled ‘Killers on the Run,’ right?”
• “I never spoke to him again. I cry myself to sleep every night because I am in inconsolable pain.”
• “Is that when all his brains splattered across your lap like a bowl of spaghetti?”

FRE 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons.

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Summary

This is the classic balancing rule – balancing probativity of certain evidence with its prejudicial reach. Rule 403 grants power to the court to exclude otherwise relevant evidence whose probative value is substantially outweighed by the danger of unfair prejudice. Since all evidence is meant to be prejudicial against one party or the other, the prejudice must be “unfair” for it to be excluded under Rule 403.

Exclusion under Rule 403 is absolute. Once a piece of evidence is deemed too prejudicial to be admitted into court, no other rule of evidence can operate to admit the evidence. The 403 balance is a fact-sensitive inquiry, but the balance is always in favor of admissibility.

Case Law (Unfair Prejudice)

• U.S. v. Delgado-Marrero, 744 F.3d 167 (1st Cir. 2014) (in drug trafficking case, court made serious mistake in weighing the danger of unfair prejudice by admitting evidence of homosexuality, which had minimal probative value)
• Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d 1063 (11th Cir. 2014) (error to exclude decedents history of alcohol abuse in wrongful death suit claiming product caused his cancer)
• U.S. v. Nevels, 490 F.3d 800 (10th Cir. 2007) (evidence is unfairly prejudicial if it “tends to affect adversely jury's attitude toward defendant wholly or apart from its judgment as to his guilt or innocence of the crime charged”)
• U.S. v. Thompson, 359 F.3d 470 (7th Cir. 2004) (under Rule 403, the district court did not err in allowing the government to cross-examine a defense witness as to non-specific threats made against her by the defendant in order to explain her prior inconsistent statements)
• U.S. v. Frost, 234 F.3d 1023 (8th Cir. 2000) (“Unfair prejudice ‘speaks to the capacity of some concededly relevant evidence to lure the fact-finder into declaring guilt on a ground different from proof specific to the offense charged.”)
• Rubert-Torres v. Hospital San Pablo, Inc., 205 F.3d 472 (1st Cir. 2000) (the trial court's refusal to allow a severely disabled minor plaintiff to be viewed by the jury so that an expert witness could physically demonstrate his testimony based in part on the plaintiff’s appearance was an abuse of discretion; the court gave no reason for her exclusion and made no Rule 403 findings on the record)
• U.S. v. Torres-Flores, 827 F.2d 1031 (5th Cir. 1987) (the probative value of a “mug shot” photo of the defendant was outweighed by its prejudicial impact because there was a “definite possibility” that it impressed upon the jury the defendant's bad character)
• Carter v. Hewitt, 617 F.2d 961 (3d Cir. 1980) (“a classic example of unfair prejudice is a jury's conclusion, after hearing a recitation of a defendant's prior criminal record, that, since the defendant committed so many other crimes, he must have committed this one too”)
• U.S. v. McRae, 593 F.2d 700 (5th Cir. 1979) (admission of a color photograph of the murder victim shot in the eye was not unfairly prejudicial since the evidence tended to establish the elements of the offense)