Section 403.    Grounds for Excluding Relevant Evidence

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, being unnecessarily time consuming, or needless presentation of cumulative evidence.

NOTE

This section is derived from Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418, 423, 517 N.E.2d 152, 155 (1988) (adopting the principles expressed in Proposed Mass. R. Evid. 403). See Commonwealth v. Bonds, 445 Mass. 821, 831, 840 N.E.2d 939, 948 (2006); Gath v. M/A-Com, Inc., 440 Mass. 482, 490–‌491, 802 N.E.2d 521, 529 (2003); Commonwealth v. Beausoleil, 397 Mass. 206, 217, 490 N.E.2d 788, 795 (1986); Commonwealth v. Cruz, 53 Mass. App. Ct. 393, 407–408, 759 N.E.2d 723, 736 (2001).

While a majority of the cases stand for the proposition that relevant evidence may be excluded if its probative value is “substantially” outweighed by its prejudicial effect—see, e.g., Commonwealth v. Bonds, 445 Mass. at 831, 840 N.E.2d at 948; Commonwealth v. Stroyny, 435 Mass. 635, 641, 760 N.E.2d 1201, 1208 (2002); Commonwealth v. Otsuki, 411 Mass. 218, 236, 581 N.E.2d 999, 1009–1010 (1991)—others state that the probative value must be merely outweighed by the prejudicial effect. See, e.g., Commonwealth v. Rosario, 444 Mass. 550, 557, 829 N.E.2d 1135, 1140 (2005); Commonwealth v. Reynolds, 429 Mass. 388, 395, 708 N.E.2d 658, 665 (1999). These latter cases, however, rely on cases which include the term “substantial” when explaining the balancing test. See, e.g., Commonwealth v. Chalifoux, 362 Mass. 811, 816, 291 N.E.2d 635, 638 (1973) (relied on by cases which Commonwealth v. Rosario, 444 Mass. at 556–557, 829 N.E.2d at 1140–1141, relied on); Commonwealth v. Otsuki, 411 Mass. at 236, 581 N.E.2d at 1009–1010 (relied on by Com­monwealth v. Reynolds, 429 Mass. at 395, 708 N.E.2d at 665).

Guidelines for Certain Categories of Evidence. The Supreme Judicial Court and Appeals Court have developed guidelines for the admissibility of certain categories of evidence subject to a Section 403 analysis. See, e.g., Santos v. Chrysler Corp., 430 Mass. 198, 202–203, 715 N.E.2d 47, 52–53 (1999) (similar incidents); Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418, 422–423, 517 N.E.2d 152, 155 (1998) (vicarious admissions); Commonwealth v. Ramos, 406 Mass. 397, 406–407, 548 N.E.2d 856, 861–862 (1990) (in a prosecution for murder in the first degree by reason of deliberate premeditation and extreme atrocity or cruelty, “photographs indicating the force applied and portraying the injuries inflicted may properly be admitted”); Commonwealth v. Trainor, 374 Mass. 796, 802–806, 374 N.E.2d 1216, 1220–1222 (1978) (admissibility of opinion polls and surveys); Commonwealth v. Perryman, 55 Mass. App. Ct. 187, 193–195, 770 N.E.2d 1, 5–7 (2002) (admissibility of evidence consisting of courtroom experiments and demonstrations).

Unfair Prejudice. “[T]rial judges must take care to avoid exposing the jury unnecessarily to inflammatory material that might inflame the jurors’ emotions and possibly deprive the defendant of an impartial jury.” Commonwealth v. Berry, 420 Mass. 95, 109, 648 N.E.2d 732, 741 (1995). See, e.g., Commonwealth v. Bishop, 461 Mass. 586, 596–597, 963 N.E.2d 88, 97 (2012) (“before a judge admits evidence that a defendant used [a racial slur] to describe a man of color, the judge must be convinced that the probative weight of such evidence justifies this risk”).

In balancing probative value against risk of prejudice, the fact that the evidence goes to a central issue in the case weighs in favor of admission. See Gath v. M/A-Com, Inc., 440 Mass. 482, 490–491, 802 N.E.2d 521, 529 (2003). Unfair prejudice does not mean that the evidence sought to be excluded is particularly probative evidence harmful to the opponent of the evidence. An illustrative weighing of probative value against unfair prejudice arises regarding the admissibility of photographs of the victim (especially autopsy) or the crime scene. See generally Commonwealth v. Anderson, 445 Mass. 195, 208–209, 834 N.E.2d 1159, 1170–‌1171 (2005); Commonwealth v. Lyons, 444 Mass. 289, 297–298, 828 N.E.2d 1, 8–9 (2005); Commonwealth v. Prashaw, 57 Mass. App. Ct. 19, 24–25, 781 N.E.2d 19, 24 (2003). Evidence of a defendant’s prior bad act may be unfairly prejudicial and therefore inadmissible to prove the crime charged, but it may be admissible for other purposes (e.g., common plan, pattern of conduct, identity, absence of accident, motive). See Commonwealth v. Holloway, 44 Mass. App. Ct. 469, 475, 691 N.E.2d 985, 990 (1998). See also Commonwealth v. Fidalgo, 74 Mass. App. Ct. 130, 133–134, 904 N.E.2d 474, 478 (2009) (evidence that the defendant had been a passenger in three prior automobile accidents over the past nine years in which she had claimed injuries and sought damages was not relevant in a prosecution of the defendant for filing a false motor vehicle insurance claim because it showed nothing about the character of the prior claims and yet had the potential for prejudice since the case was essentially a credibility contest). The effectiveness of limiting instructions in minimizing the risk of unfair prejudice should be considered in the balance. Commonwealth v. Dunn, 407 Mass. 798, 807, 556 N.E.2d 30, 35–36 (1990). See also Section 404(b), Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes: Other Crimes, Wrongs, or Acts.

Confusion of Issues and Misleading the Jury. The trial judge has discretion to exclude relevant evidence if it has potential for confusing and misleading the fact finder. Commonwealth v. Rosa, 422 Mass. 18, 25, 661 N.E.2d 56, 61 (1996); Commonwealth v. Beausoleil, 397 Mass. 206, 217, 490 N.E.2d 788, 795 (1986); Lally v. Volkswagen Aktiengesellschaft, 45 Mass. App. Ct. 317, 332, 698 N.E.2d 28, 41 (1998) (admissibility of a test, experiment, or reenact­ment requires consideration of “whether the evidence is relevant, the extent to which the test conditions are similar to the circumstances surrounding the acci­dent, and whether the [experiment, demonstration, or reenactment] will confuse or mislead the jury” [quotation and citation omitted]).

Unnecessarily Time Consuming. The trial judge has discretion to exclude evidence if it is unduly time consuming. Commonwealth v. Cruz, 53 Mass. App. Ct. 393, 407–408, 759 N.E.2d 723, 736 (2001).

Cumulative Evidence. The trial judge has discretion to exclude evidence if it is merely cumulative. Commonwealth v. Bonds, 445 Mass. 821, 831, 840 N.E.2d 939, 948 (2006). See Fitchburg Gas & Elec. Light Co. v. Department of Telecommunications & Energy, 440 Mass. 625, 641, 801 N.E.2d 220, 232 (2004) (no error in excluding testimony that would be “merely cumulative of the uncontroverted evidence”); Commonwealth v. Taghizadeh, 28 Mass. App. Ct. 52, 60–61, 545 N.E.2d 1195, 1200–1201 (1989) (evidence that is relevant to an essential element of a crime, claim, or defense is not cumulative and subject to exclusion simply because an opposing party offers to stipulate to the fact at issue). See also Old Chief v. United States, 519 U.S. 172 (1997).

Exclusion as a Sanction. See Section 1102, Spoliation or Destruction of Evidence.

Constitutional Considerations. In a criminal case, the defendant has a constitutional right to present a complete defense; however, this right does not deprive the trial judge of discretion to exclude evidence that is repetitive, only marginally relevant, or that creates an undue risk of unfair prejudice or confusion of the issues. See Commonwealth v. Kartell, 58 Mass. App. Ct. 428, 433 n.2, 790 N.E.2d 739, 743 n.2 (2003). See also Commonwealth v. Carroll, 439 Mass. 547, 552, 789 N.E.2d 1062, 1067 (2003); Commonwealth v. Edgerly, 372 Mass. 337, 343, 361 N.E.2d 1289, 1292 (1977).