Rule 403Ā  Exclusion of relevant evidence on
grounds of prejudice, confusion, or waste of time.Ā  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 Ā§1]



 



Rule 403 Commentary



 



Ā  This rule is identical with Fed. R. Evid. 403.Ā  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.Ā  See McCormick Ā§185.Ā  "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."Ā  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.Ā  Necessity for a
Rule 403 "balance" can arise in a variety of contexts because of the
pervasive nature of the principle.Ā  In particular, Rules 404(b), 608(b), and
609 implicitly call for application of this principle.



Ā  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).Ā 
"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):Ā 
"The responsibility for maintaining the delicate balance between probative
value and prejudicial effect lies largely within the discretion of the trial
court."Ā  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.Ā  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



 



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



 



Case Notes



 



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



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



Ā  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.Ā  69 H. 68, 733 P.2d
690.



Ā  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.Ā  70 H. 300, 769 P.2d 1098.



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



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



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



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



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



Ā  Trial court did not err under rules 401 and 403 in admitting
evidence that indicated that plaintiff's symptoms may have been linked to drug
use and not solely to exposure to silicone.Ā  78 H. 287, 893 P.2d 138.



Ā  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.Ā  79 H. 14, 897 P.2d 941.



Ā  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.Ā  80 H. 107, 905 P.2d 613.



Ā  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.Ā  80 H. 212, 908 P.2d 1198.



Ā  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.Ā  81 H.
15, 911 P.2d 735.



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



Ā  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.Ā  81 H. 293, 916 P.2d 703.



Ā  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.Ā  82 H. 120, 920 P.2d 334.



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



Ā  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.Ā  83 H. 289, 926 P.2d 194.



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



Ā  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.Ā  85 H. 336, 944 P.2d 1279.



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



Ā  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.Ā  88 H. 19, 960 P.2d 1227.



Ā  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.Ā  90 H. 443, 979 P.2d 39.



Ā  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.Ā 
92 H. 482, 993 P.2d 516.



Ā  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".Ā  97 H. 206, 35 P.3d 233.



Ā  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.Ā  97 H.
206, 35 P.3d 233.



Ā  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.Ā  99 H. 390, 56 P.3d 692.



Ā  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.Ā 
100 H. 442, 60 P.3d 843.



Ā  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".Ā  102 H. 189, 74 P.3d 12.



Ā  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.Ā  106 H.
116, 102 P.3d 360.



Ā  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.Ā  115 H. 462, 168 P.3d 592.



Ā  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 Ā§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.Ā  116 H. 200, 172
P.3d 512.



Ā  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.Ā  118 H. 493, 193 P.3d 409.



Ā  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.Ā  82 H. 428 (App.), 922
P.2d 1041.



Ā  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.Ā  83 H. 78
(App.), 924 P.2d 572.



Ā  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.Ā  84 H. 112 (App.), 929 P.2d 1362.



Ā  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.Ā  84 H. 162
(App.), 931 P.2d 604.



Ā  Where expert's testimony on the batteredĀ  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.Ā  101 H. 256 (App.), 66 P.3d 785.



Ā  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.Ā 
104 H. 387 (App.), 90 P.3d 1256.



Ā  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.Ā  106 H. 298 (App.), 104 P.3d 336.



Ā  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.Ā  106 H. 517 (App.), 107 P.3d 1190.



Ā  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".Ā  107 H. 452 (App.), 114 P.3d 958.



Ā  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.Ā  110 H. 154 (App.), 129 P.3d 1182.



Ā  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.Ā  110 H. 386 (App.), 133 P.3d 815.



Ā  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 Ā§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
Ā§708-834(1).Ā  119 H. 60 (App.), 193 P.3d 1260.



Ā  Where, pursuant to Ā§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
Ā§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.Ā  119 H. 60 (App.), 193 P.3d 1260.