703.2Prejudice, Confusion, Waste of Time [Rule 403]

Last Updated: 03/21/21

Key Concepts

  • Relevant evidence may be excluded if its probative value is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, or if it would result in undue delay, waste of time, or a needlessly cumulative presentation of evidence.
  • “Unfair prejudice” means an undue tendency to suggest a decision on an improper basis, such as anger, sympathy, or fear.
  • Before excluding evidence under this rule, the court should consider whether a lesser remedy such as a limiting instruction to the jury would suffice.

The Basic Rule

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.

G.S. 8C-403.

Legal Overview

The court must compare the probative value of relevant evidence under Rule 401 against the danger of prejudice, confusion, or waste of time under Rule 403. This analysis is, however, weighted heavily in favor of admissibility. Evidence should be excluded only if the risks enumerated by Rule 403substantially outweigh” its probative value under Rule 401. See G.S. 8C-403 (emphasis added); State v. Walters, 209 N.C. App. 158 (2011).

Additionally, before the court excludes evidence under Rule 403, it should consider whether a limiting instruction would sufficiently address the concerns and whether there is alternative evidence the party could offer. See G.S. 8C-403, Official Commentary; State v. Badgett, 361 N.C. 234 (2007) (court did not abuse discretion in declining to exclude evidence of prior bad acts under Rule 403 and 404(b), since limiting instruction to jury adequately addressed any concerns).

Grounds for Exclusion

The grounds for exclusion of relevant evidence under Rule 403 are as follows:

Unfair Prejudice

Evidence is not excluded under Rule 403 merely because it is prejudicial. By its very nature, any evidence that tends to show the defendant committed a crime is prejudicial to the defense. See State v. Rainey, 198 N.C. App. 427 (2009); State v. Covington, 290 N.C. 313 (1976). Instead, relevant evidence must be excluded only if its probative value is substantially outweighed by unfair prejudice to the other party. See State v. Mercer, 317 N.C. 87 (1986). “Unfair prejudice” under Rule 403 means “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” State v. DeLeonardo, 315 N.C. 762 (1986), quoting G.S. 8C-403, Official Commentary; but see State v. Duvall, 50 N.C. App. 684 (1981), rev’d on other grounds, 304 N.C. 557 (1981) (“The fact that evidence may arouse the jury's emotions is not sufficient in itself for its exclusion.”).

Confusion of the Issues

Second, relevant evidence should be excluded if its probative value is substantially outweighed by a risk that it will confuse the issues to be decided at trial. See, e.g., State v. Huggins, 338 N.C. 494 (1994) (trial court in murder trial properly excluded evidence that defendant occasionally played with children, purportedly to show his level of immaturity, to avoid confusing the issues); State v. Rupe, 109 N.C. App. 601 (1993) (in embezzlement trial, testimony on cross-examination of detective regarding absence of sanctions for failure to follow escrow account procedures was properly excluded to avoid confusion of the issues); State v. Knight, 93 N.C. App. 460 (1989) (evidence of prior domestic dispute between defendant and wife properly excluded in defendant’s trial for sexual abuse of daughter due to risk of confusion of issues).

Misleading the Jury

Evidence that would mislead the jury (e.g., by creating a false impression or giving a distorted representation of the facts) should be excluded if that risk substantially outweighs the probative value of the evidence. See, e.g., State v. Smith, 359 N.C. 199 (2005) (no error where court excluded defense expert’s testimony that defendant’s cocaine use impaired his ability to reason and plan, when the opinion was based on defendant’s self-serving statements about drug use, and limiting instruction could not adequately avoid risk of misleading and confusing the jury); State v. Brown, 335 N.C. 477 (1994) (no error in excluding statement of an accomplice who was unavailable to testify on the grounds that it was “clearly false” and would mislead the jury); State v. McInnis, 102 N.C. App. 338 (1991) (in nonsupport case, court properly excluded birth certificate offered by defendant to show that he was not listed as “father”; evidence was misleading, since the name of the father for an illegitimate child could not be entered without consent from the named father).

Practice Pointer

“Unfair surprise?”
While Rule 403 does not list “surprise” as an independent basis for exclusion, surprise may be “coupled with” or “covered by” the court’s consideration of unfair prejudice, confusion of the issues, or misleading the jury; however, in most cases involving unfair surprise “the granting of a continuance is a more appropriate remedy than exclusion of the evidence.” G.S. 8C-403, Official Commentary.
If the state is unfairly surprised by evidence that the defense seeks to offer at trial, the prosecutor may also seek to have the evidence limited or excluded as a sanction for a discovery violation, rather than on the basis of prejudice under Rule 403. For more information, see the related Discovery entries on State’s Discovery Rights and Obligations, Remedies, and Sanctions.

Undue Delay, Waste of Time, Cumulative Evidence

Finally, relevant evidence that is otherwise admissible and probative should be excluded if its value is substantially outweighed by considerations of undue delay, waste of the court’s or the jury’s time, or because the evidence is needlessly cumulative in light of other evidence already introduced. See, e.g., State v. Webster, 111 N.C. App. 72 (1993) (no abuse of discretion in limiting defendant to presenting only eight character witnesses); State v. Barton, 335 N.C. 696 (1994) (no error in excluding testimony from defense expert about defendant’s mental state that “would have added little, if anything, to the testimony he had already given”); State v. Burge, 100 N.C. App. 671 (1990) (defense witness’s proposed testimony that he would not believe state’s witness under oath, after having already testified that he believed the witness was a liar, “was cumulative and its rejection was not prejudicial”).

Portions of this entry were excerpted from Jessica Smith, “Criminal Evidence: Rule 403,” N.C. Superior Court Judges’ Benchbook, March 2015.