The object of this article is to identify what makes evidence unfairly prejudicial. The first part analyzes the language of and the policies behind Rule 403, and demonstrates that the courts' current ad hoc approach has frustrated those policies and prevented the rule from operating as written. Part II analyzes the nature of unfairly prejudicial evidence in light of the policies intended to be advanced by Rule 403. That part concludes that evidence may be considered unfairly prejudicial when it has a tendency to cause the trier of fact to commit an inferential error. The third part describes recent empirical research in cognitive psychology which could help courts identify evidence that tends to induce inferential error. Part IV demonstrates how this research might be applied to the type of evidence most frequently analyzed for unfair prejudice: evidence of other crimes or bad acts. The conclusion makes the modest proposal that the law of evidence pay attention to how people think.
Victor J. Gold,
Federal Rule of Evidence 403: Observations on the Nature of Unfairly Prejudicial Evidence,
58 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol58/iss3/2