EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, October 5, 2007

Balancing Act? Are Judges Misapplying Rule 403?

Federal Rule of Evidence 403 and most state counterparts state that relevant evidence may nonetheless 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.

In its recent decision in Guerra v. North East Independent School District, the Fifth Circuit Court of Appeals affirmed the district court's decision to exclude an EEOC letter because "its risk of prejudice outweighed is probative value."  A quick Westlaw search shows 49 cases in ALLFEDS and 129 cases in ALLSTATES where courts similarly used the phrase "prejudice outweighed its probative value."

The question becomes whether the judges in these cases are just being lazy or whether they are erroneously excluding evidence whose prejudicial effect outweighs its probative value, although perhaps not to a substantial degree.  It also leads me to wonder whether courts are even worse when prior convictions are at issue under Rule 609 and they must alter the balancing test depending on whether the witness is a criminal defendant and whether the date of conviction or release from prison is more than 10 years old.  More on that later.



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