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. [L 1980, c 164, pt of §1]

RULE 403 COMMENTARY

  This rule is identical with Fed. R. Evid. 403.  It recognizes the necessity for discretionary qualification of the general admissibility rule, based on such factors as potential for engendering juror prejudice, hostility, or sympathy; potential for confusion or distraction; and likelihood of undue waste of time.  See McCormick §185.  "Unfair prejudice," as the Advisory Committee's Note to Fed. R. Evid. 403 explains, "means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one."  In some cases assessment of potential for prejudice will depend upon the court's view of the ability and willingness of jurors to follow a limiting instruction, see Rule 105 supra.  Necessity for a Rule 403 "balance" can arise in a variety of contexts because of the pervasive nature of the principle.  In particular, Rules 404(b), 608(b), and 609 implicitly call for application of this principle.

  Hawaii courts have addressed the issue of discretionary exclusion of relevant evidence in the context of admissibility of gruesome or inflammatory photographs, see State v. Apao, 59 H. 625, 586 P.2d 250 (1978).  "Other crimes" evidence, see Rule 404(b) infra, presents a classic example of the necessity for the Rule 403 balance, as the Hawaii Supreme Court recognized in State v. Iaukea, 56 H. 343, 349, 537 P.2d 724, 729 (1975):  "The responsibility for maintaining the delicate balance between probative value and prejudicial effect lies largely within the discretion of the trial court."  In State v. Murphy, 59 H. 1, 575 P.2d 448 (1978), again in commenting on "other crimes" evidence, the court stressed the trial court's responsibility of assessing the balance between probative value and prejudicial effect and noted that considerations germane to such a balancing process should include actual need for the evidence, availability of other evidence on the same issues, probative weight of the evidence, and the potential for creating prejudice and hostility against the accused in the minds of the jurors.  The court recently noted that character evidence (see Rule 404(a) infra) must be evaluated with reference to the Rule 403 principle, see State v. Lui, 61 H. 328, 603 P.2d 151 (1979).

Law Journals and Reviews

  Henderson v. Professional Coatings Corp.:  Narrowing Third-Party Liability in Automobile Accidents.  15 UH L. Rev. 353 (1993).

Case Notes

  Admission of evidence upheld.  63 H. 488, 630 P.2d 619 (1981); 4 H. App. 175, 664 P.2d 262 (1983).

  Court abused its discretion in excluding evidence of driver's drinking before accident.  68 H. 447, 719 P.2d 387 (1986).

  Court abused its discretion in admitting Honolulu Police Department Form 81, though parts of form where defendant invoked defendant's rights were excised; cannot be said that error harmless.  69 H. 68, 733 P.2d 690 (1987).

  The admissibility of evidence even after a demonstration of relevance is a matter of discretion; no basis to establish a rule of admissibility based solely on the need for evidence.  70 H. 300, 769 P.2d 1098 (1989).

  Videotape was veiled attempt to successfully recreate the motorcycle accident.  70 H. 419, 773 P.2d 1120 (1989).

  Trial judge did not abuse discretion in admitting evidence of condition of abandoned child in prosecution for attempted second degree murder.  73 H. 109, 831 P.2d 512 (1992).

  Admissibility of novel scientific evidence discussed, focusing on DNA profiling evidence.  73 H. 130, 828 P.2d 1274 (1992).

  Trial court did not abuse its discretion in refusing to admit evidence that motorcyclist did not have motorcycle license at time of accident.  74 H. 308, 844 P.2d 670 (1993).

  Defendant's statements relevant as direct evidence of a material element of terroristic threatening; court thus had no discretion to exclude.  75 H. 517, 865 P.2d 157 (1994).

  Trial court did not err under rule 401 and this rule in admitting evidence that indicated that plaintiff's symptoms may have been linked to drug use and not solely to exposure to silicone.  78 H. 287, 893 P.2d 138 (1995).

  Trial court did not abuse its discretion in admitting evidence of appellant's receipt of workers' compensation benefits, where the probative value of the evidence substantially outweighed the danger of unfair prejudice.  79 H. 14, 897 P.2d 941 (1995).

  Admission of videotaped interview proper as it enabled jury to view whether sex assault victim's behavior was consistent with a child her age who had experienced a recent upsetting event.  80 H. 107, 905 P.2d 613 (1995).

  Probative value of witness' testimony that witness suffered injuries in auto accident and testimony's relevance to whether the rear-end collision caused plaintiff's injuries substantially outweighed by danger of substantial delay, and confusing the jury.  80 H. 212, 908 P.2d 1198 (1995).

  Absent any evidence to support defendant's claim that victim bit co-defendant on leg, court properly declined to allow examination of co-defendant's leg in jury's presence for danger of misleading the jury.  81 H. 15, 911 P.2d 735 (1996).

  No prejudice to defendant by prosecution exhibiting co-defendant to jury where ample evidence in record to otherwise support conviction by jury.  81 H. 15, 911 P.2d 735 (1996).

  No abuse of discretion by court admitting "gruesome" photos of decedent's sexual parts, face and nude body into evidence as photos of injuries not needlessly cumulative nor unfairly prejudicial.  81 H. 293, 916 P.2d 703 (1996).

  Trial court abused discretion by excluding evidence of arson and breach of duty under insurance policy provisions where probative value of evidence on issue of whether insurer was warranted in denying claim outweighed any prejudicial effect.  82 H. 120, 920 P.2d 334 (1996).

  Where defendant's witness would have contradicted officers' testimony, exclusion of witness' testimony under this rule was abuse of discretion.  83 H. 229, 925 P.2d 797 (1996).

  Where a victim recanted allegations of abuse, probative value of prior incidents of violence between victim and defendant to show context of relationship, where relationship was offered as possible explanation for victim's recantation, far outweighed any prejudice.  83 H. 289, 926 P.2d 194 (1996).

  Admitting knife into evidence not legally prejudicial to defendant once sufficient foundation had been laid and knife's relevancy established; no abuse of discretion.  83 H. 335, 926 P.2d 1258 (1996).

  Abuse of discretion where court expressly qualified witness as expert in "visibility" analysis and none of factors under this rule appeared to be factors in exclusion of testimony regarding range of visibility.  85 H. 336, 944 P.2d 1279 (1997).

  Where court failed to view otherwise relevant videotape before definitively ruling on its admissibility, exclusion of tape was abuse of discretion.  85 H. 336, 944 P.2d 1279 (1997).

  Where effect of allowing officer's testimony regarding defendant's statements about defendant's prior involvement in and experience with prostitution and that "what occurred in this case was not prostitution" was to allow defendant to testify without waiving defendant's right against self-incrimination, the prejudicial effect of the statement was minimized by its overall exculpatory import and was thus properly admitted.  88 H. 19, 960 P.2d 1227 (1998).

  Where substantial evidence was presented regarding residuary legatee's disposition to exert undue influence, probate court's error in admitting lay opinion testimony regarding residuary legatee's character did not substantially prejudice residuary legatee's rights and error was thus harmless.  90 H. 443, 979 P.2d 39 (1999).

  Trial court's decision to permit witness' testimony regarding witness' meeting with debt collector as probative of witness' state of mind involving dealings with debt collector and to rebut suggestion by purchaser that settlement with debt collector was fabricated was not abuse of discretion; any prejudicial effect was mitigated by court's limiting instruction advising jury to consider testimony only for the purpose of why the meeting took place.  92 H. 482, 993 P.2d 516 (2000).

  Trial court did not abuse discretion by excluding evidence that victim had previously been incarcerated where, absent any offer of proof as to victim's violent conduct while in prison, probative value of victim's imprisonment was questionable and outweighed by danger of undue prejudice that jurors might believe that victim was a bad person who "got what he deserved".  97 H. 206, 35 P.3d 233 (2001).

  Where trial court was put on advance notice that defendant intended to invoke Fifth Amendment privilege against self-incrimination, court abused discretion by permitting prosecution to question defendant about false identification cards; risk of unfair prejudice occasioned by compelling criminal defendant to invoke privilege in front of jurors was substantial and not outweighed by probative value of prosecution's unanswered questions.  97 H. 206, 35 P.3d 233 (2001).

  Trial court correctly determined that evidence of defendant's use and sale of illegal drugs and defendant's threat to "shoot" witness were relevant and did not abuse its discretion in determining that the probative value of these "other bad acts" were not substantially outweighed by the danger of unfair prejudice.  99 H. 390, 56 P.3d 692 (2002).

  Trial court did not err in admitting evidence of the twenty-four guns not used by defendant in shooting rampage and testimony of weapons specialist where the evidence was relevant to show that defendant could appreciate the wrongfulness of defendant's conduct based upon the complex decision-making involved in choosing a gun from defendant's arsenal and to show defendant's planning and carrying out of plan to kill defendant's co-workers.  100 H. 442, 60 P.3d 843 (2002).

  Reference to witness as "the former insurance commissioner for the State of Hawaii" not unduly prejudicial as there was no evidence that this reference suggested a jury decision on an improper basis; witness was offered as an expert witness and this reference served as the basis for the expert nature of the witness' testimony; thus, appellate court did not err in concluding that "there was no rule that prohibited an expert from disclosing to the jury his or her prior service as a public officer in the field of his or her expertise".  102 H. 189, 74 P.3d 12 (2003).

  Trial court erred in excluding, as cumulative under this rule, the playing of the 911 tape, as defendant had the right to have the jury hear the best evidence of the complainant's demeanor--the 911 tape--and not rely on the opinions of other witnesses as to complainant's demeanor.  106 H. 116, 102 P.3d 360 (2004).

  Trial court incorrectly excluded evidence of beach park restroom resurfacing project pursuant to this rule, as project commenced before the subject accident and the evidence was not subject to rule 407 exclusion or the policy considerations thereunder; evidence was probative at least as to notice and under these circumstances, admission of the evidence would not have been unfairly prejudicial.  115 H. 462, 168 P.3d 592 (2007).

  Trial court did not err in permitting prosecution to cross-examine defendant regarding defendant's non-statements to defendant's mental examiners where defendant's failure to mention defendant's concerns regarding aliens was clearly relevant to the question of whether defendant was being truthful when defendant testified at trial about having those concerns at the time of the incident, and §704-416 only addresses the admissibility of defendant's statements, not non-statements; thus, as the introduction of defendant's non-statements did not violate chapter 704, defendant's right to a fair trial was not prejudiced by admission of the testimony.  116 H. 200, 172 P.3d 512 (2007).

  Where handgun constituted a significant piece of evidence pertaining to the state of mind requisite to the charged offense of kidnapping-with-the-intent-to-terrorize, trial court's admission of testimony regarding the handgun was not erroneous because the testimony's probative value outweighed any potential prejudice.  118 H. 493, 193 P.3d 409 (2008).

  Where evidence of the sexual contacts in South Dakota was probative of defendant's opportunity to commit the charged sexual assaults in Hawaii without being detected and (1) the strength of the evidence was essentially the same (2) the similarities between the crimes were strong (3) there was substantial need for the evidence as absent the evidence, the jury would have been left with the false impression that the sexual contact started in Hawaii (4) there was no alternative way to establish the progression of defendant's behaviors, and (5) the evidence was not likely to rouse hostility against defendant by the jury, evidence was properly admitted.  124 H. 90, 237 P.3d 1156 (2010).

  Circuit court abused its discretion in excluding photograph depicting the point of impact in the middle of a crosswalk at the scene of motorist-pedestrian collision, where:  (1) jury was entitled to know pedestrian's location as testified to by a key eyewitness; (2) there was nothing inherently prejudicial about a crosswalk that would lead the jury to determine negligence upon an improper basis; and (3) any potential prejudice could have been cured by a limiting instruction by the court.  136 H. 415, 363 P.3d 263 (2015).

  No abuse of discretion in trial court's exclusion of evidence under rule.  5 H. App. 251, 687 P.2d 554 (1984).

  Trial court abused discretion, in admitting videotape into evidence without first previewing tape's contents, showing tape to jury, and in denying new trial, where prejudicial and misleading impact of videotape's contents on jury far outweighed its probative value.  82 H. 428 (App.), 922 P.2d 1041 (1996).

  No abuse of discretion by trial court's admission of doctor's testimony regarding plaintiff's alcohol consumption where probative value of testimony not substantially outweighed by danger of unfair prejudice.  83 H. 78 (App.), 924 P.2d 572 (1996).

  Photos of different wounds on victim's body caused by shooting or beating by defendant and accomplice not cumulative and properly admitted; photos' probative value not substantially outweighed by danger of unfair prejudice.  84 H. 112 (App.), 929 P.2d 1362 (1996).

  Where seller's settlement offer did not contain any disclaimer of liability or releases from further claims against seller or broker, jury could have interpreted offer, despite cautionary instruction, as an admission of liability by seller; offer thus properly excluded.  84 H. 162 (App.), 931 P.2d 604 (1997).

  Where expert's testimony on the battered child syndrome was relevant to prove that the injuries to child were not accidental and that someone must have intended to harm child, trial court did not abuse discretion in admitting testimony.  101 H. 256 (App.), 66 P.3d 785 (2003).

  Where ongoing department of health violations had probative value as to defendant care home operator's reckless state of mind, which outweighed any danger of unfair prejudice to defendant, trial court did not abuse discretion in admitting testimony of health inspector regarding the three violations found during the inspector's inspection of defendant's care home.  104 H. 387 (App.), 90 P.3d 1256 (2004).

  Where relevant evidence of witness' potential bias was elicited at trial, trial court properly balanced the prejudice concerns of defendant with the relevance and probative value of liability insurance evidence to reveal witness' potential bias; thus, trial court did not abuse its discretion in limiting evidence of bias, interest or motive with due regard for this rule.  106 H. 298 (App.), 104 P.3d 336 (2004).

  Where 911 recording contained victim's real-time description of victim's van being chased and repeatedly rammed by defendant, victim's expression of fear, and the actual sounds, atmosphere of the alleged assault, and the angry and threatening voices directed at victim, recording was extremely probative and not unfairly prejudicial; thus, recording was not subject to exclusion under this rule.  106 H. 517 (App.), 107 P.3d 1190 (2005).

  Where defendant inflicted the injuries that evoked the abattoir and did not cite any evidence of the effect of the drugs on the victim other than defendant's proffered cross-examination of the medical examiner, trial court did not abuse its discretion in deciding that the vaporous probative value of the evidence was "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury", not to mention "considerations of undue delay or waste of time".  107 H. 452 (App.), 114 P.3d 958 (2005).

  Where State introduced into evidence prior instances of violence between defendant and girlfriend to help explain why girlfriend recanted at trial girlfriend's statement to police, evidence of prior violence between defendant and girlfriend was needed because it provided context for their relationship whereas no other evidence in the trial did, and family court alleviated the risk of prejudice by specifically instructing jury not to consider the prior instances of violence in determining defendant's guilt or innocence, family court did not err in finding that probative value of evidence outweighed its prejudicial effect.  110 H. 154 (App.), 129 P.3d 1182 (2006).

  Where the significant danger of jury confusion that would result from defendant calling nephew as a witness for the limited purpose of establishing their relationship substantially outweighed the probative value of such evidence, trial court did not abuse its discretion in precluding nephew from testifying.  110 H. 386 (App.), 133 P.3d 815 (2006).

  Trial court erred harmfully in excluding, pursuant to rule 401 and this rule, defendant's exhibit with respect to defendant's theft-by-deception charges under §708-830(2), on the grounds that defendant's analysis of the tax laws was irrelevant and that evidence of defendant's legal theories would confuse the jury, where evidence that defendant, based on defendant's understanding of the tax laws, had a good faith belief that defendant did not owe taxes on defendant's wages was relevant to whether defendant acted by deception and whether defendant had a defense under §708-834(1).  119 H. 60 (App.), 193 P.3d 1260 (2008).

  Where, pursuant to §231-40, the Cheek interpretation of the wilfulness requirement--that a jury must be permitted to consider evidence of a defendant's good faith belief that defendant's conduct did not violate the tax laws, even if that belief was not objectively reasonable, in determining whether defendant acted wilfully--was adopted and applied in construing §231-36(a), the trial court erred in excluding defendant's exhibit pursuant to rule 401 and this rule on the grounds that defendant's analysis of the tax laws was irrelevant and that evidence of defendant's legal theories would confuse the jury.  119 H. 60 (App.), 193 P.3d 1260 (2008).

  Trial court did not abuse its discretion in finding that the probative value of the one-half and one-third of real time speed versions of the slow-motion FBI enhanced videotape was not substantially outweighed by any potential prejudice where the versions were highly probative of the sequence of events when defendant was approached by the two officers and were not cumulative because each provided a somewhat different perspective; they were not unduly prejudicial because there was sufficient foundation established as to their preparation, they contained a time counter indicating the speed at which it was playing, and the jury could compare them to the original.  120 H. 499 (App.), 210 P.3d 22 (2009).

  Trial court did not err in admitting seatbelt buckle patent into evidence under rules 401 and 402 and this rule for the limited purpose of showing a defect in the seatbelt where the language in the patent that "known mechanisms are complicated, and some do not positively retain the latch plate" may have evinced a defect in the seatbelt that could have resulted in inertial or inadvertent release in the case, as well as defendant's knowledge of such a defect.  121 H. 143 (App.), 214 P.3d 1133 (2009).

  When determining whether proffered evidence is cumulative, a trial court must weigh how much time it would take to present such evidence relative to the evidence's probative value; where seatbelt expert's testimony clearly differed from other expert's testimony, and there was no evidence that trial court attempted to ascertain how long it would take expert to testify, consider limiting the expert's testimony time, or balance whether the probative force of the testimony would be outweighed by its contribution to the length of trial, trial court erred in excluding expert's testimony on cumulative evidence grounds.  121 H. 143 (App.), 214 P.3d 1133 (2009).

  Primarily for reasons with regard to the time that had elapsed between the other bad acts and the charged crime and applying the test set out in this rule, the circuit court did not abuse its discretion in allowing the State to adduce at trial evidence of defendant's prior convictions under rule 404(b).  123 H. 456 (App.), 235 P.3d 1168 (2010).

  As the right of confrontation is not absolute, circuit court properly ruled that defendant was not entitled to introduce selected portions of witness' statement that were favorable to defendant's defense and at the same time preclude the State from introducing other portions of witness' statement that were necessary to prevent the jury from being misled; thus, circuit court did not abuse its discretion in ruling that the responsive portions of witness' statement offered by the State were admissible under rule 106 and this rule.  125 H. 462 (App.), 264 P.3d 40 (2011).

  There was no plain error in the admission of officer's statements regarding defendant's telephone conversation with wife while in custody to "clean the car", where statements had at least some bearing on defendant's consciousness of guilt and defendant's attempts to conceal evidence linking defendant to decedent's death, both facts at issue in the case, and there was no danger of confusing the jury as counsel for both sides noted in front of the jury that officer's testimony concerned events in 2007.   126 H. 40 (App.), 266 P.3d 448 (2011).

  Where defendant presented no evidence linking any third person to decedent's death and failed to show how evidence of decedent's prior sexual behavior could sufficiently link identifiable third persons to decedent's death, defendant did not demonstrate that decedent's prior sexual behavior was relevant by establishing that it had a "tendency to make the existence of any fact that is of consequence" to defendant's defense that someone else killed the decedent "more probable or less probable"; circuit court thus properly excluded evidence of decedent's prior sexual behavior.  126 H. 40 (App.), 266 P.3d 448 (2011).

  Circuit court did not abuse its discretion in admitting video showing defendant masturbating for "child" where video: (1) was extremely probative of defendant’s intent to promote or facilitate the commission of one of the predicate felonies necessary to prove first degree electronic enticement of a child under §707-756; (2) provided clear evidence of defendant’s motives and desires regarding the "child" and the extreme actions defendant was willing to undertake in order to entice the "child"; and (3) was the strongest evidence of defendant’s intention to engage in sexual activity with the "child".  128 H. 328 (App.), 289 P.3d 964 (2012).

  Cited:  134 H. 376 (App.), 341 P.3d 1176 (2014).

  Mentioned:  129 H. 250 (App.), 297 P.3d 1106 (2013).