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403: Probative vs. Prejudicial, A Balancing Act


Summary: Remember that the standard with an SCRE 403 objection is that the probative value is substantially outweighed by its prejudicial effect. Even if the evidence is 50/50 probative and prejudicial, then it passes 403. Even if the evidence is slightly more prejudicial than probative, then it still passes 403. The prejudicial effect must substantially outweigh the probative value. Unfair prejudice will be fact and case specific:

The critical inquiry in determining whether evidence is unfairly prejudicial is whether the evidence improperly appeals to the preferences of the trier of fact for reasons that are unrelated to the power of the evidence to establish a material fact. Unfair prejudice may arise from evidence that arouses the jury's hostility or sympathy for one side, confuses or misleads the trier of fact, or unduly distracts the jury from the main issues. Evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury's sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case. Evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction.[1]

Also keep in mind who has the burden: the opponent of the evidence has the burden to prove that the prejudicial effect substantially outweighs its probative value.

· State v. Phillips, 430 S.C. 319 (2020) Under SCRE 403, even if evidence is relevant, it may be excluded if its relevance is substantially outweighed by its prejudicial effect. “Unfair prejudice is the tendency of the evidence to suggest a decision based on something other than the legitimate probative force of the evidence…We believe the danger of unfair prejudice is a separate analysis from the danger of confusion of the issues or misleading the jury.”

· State v. King, 424 S.C. 188 (2018) “Rule 403, SCRE, is sometimes misstated. See, e.g., State v. Wallace (incorrectly noting that for evidence to be admissible under a Rule 403 analysis, ‘[t]he probative value of evidence falling within one of the Rule 404(b) exceptions must substantially outweigh the danger of unfair prejudice to the defendant’). The correct test is the opposite: whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. The test described in Wallace incorrectly places the burden on the proponent of the evidence to establish admissibility, while the proper test places the burden on the opponent of the evidence to establish inadmissibility.”

· State v. Hopkins, 431 S.C. 560 (Ct. App. 2020) “All evidence is meant to be prejudicial; it is only unfair prejudice which must be avoided.”

[1]29 Am. Jur. 2d Evidence § 326.


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