FRE 403 Probative Value vs Prejudicial Effect
FRE 403 gives courts discretion to exclude relevant evidence when its probative value is substantially outweighed by the risk of unfair prejudice, confusion, or misleading the jury. Applied in nearly every evidentiary ruling, FRE 403 is a cornerstone of bar exam Evidence questions and everyday trial practice.
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5 CardsFactors courts weigh under FRE 403
How does FRE 403 differ from FRE 401?
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What is the difference between prejudicial and unfairly prejudicial evidence?
All damaging evidence is prejudicial to one party. Unfair prejudice under FRE 403 means specifically that the evidence invites an improper emotional or irrational response — not merely that it hurts the opposing party's case.
Can a judge exclude evidence under FRE 403 sua sponte?
Yes. Judges have discretion to apply FRE 403 on their own initiative without a party objection, though in practice most exclusions arise from a party's objection and motion.
How is FRE 403 tested on the bar exam?
Bar exam questions typically involve graphic photos, prior convictions, or prejudicial demonstratives. Ask: Is the evidence relevant? Does its prejudice substantially outweigh probative value? The bar tests whether you apply the high standard for exclusion correctly.