HRS 0626-0001-0403 ANNOTATIONS

This rule is identical with Fed. R. Evid. 403. It recognizes the necessity for discretionary qualification of the general admissibility rule, based on such factors as potential for engendering juror prejudice, hostility, or sympathy; potential for confusion or distraction; and likelihood of undue waste of time. See McCormick §185. "Unfair prejudice," as the Advisory Committee's Note to Fed. R. Evid. 403 explains, "means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." In some cases assessment of potential for prejudice will depend upon the court's view of the ability and willingness of jurors to follow a limiting instruction, see Rule 105 supra. Necessity for a Rule 403 "balance" can arise in a variety of contexts because of the pervasive nature of the principle. In particular, Rules 404(b), 608(b), and 609 implicitly call for application of this principle.

Hawaii courts have addressed the issue of discretionary exclusion of relevant evidence in the context of admissibility of gruesome or inflammatory photographs, see State v. Apao, 59 H. 625, 586 P.2d 250 (1978). "Other crimes" evidence, see Rule 404(b) infra, presents a classic example of the necessity for the Rule 403 balance, as the Hawaii Supreme Court recognized in State v. Iaukea, 56 H. 343, 349, 537 P.2d 724, 729 (1975): "The responsibility for maintaining the delicate balance between probative value and prejudicial effect lies largely within the discretion of the trial court." In State v. Murphy, 59 H. 1, 575 P.2d 448 (1978), again in commenting on "other crimes" evidence, the court stressed the trial court's responsibility of assessing the balance between probative value and prejudicial effect and noted that considerations germane to such a balancing process should include actual need for the evidence, availability of other evidence on the same issues, probative weight of the evidence, and the potential for creating prejudice and hostility against the accused in the minds of the jurors. The court recently noted that character evidence (see Rule 404(a) infra) must be evaluated with reference to the Rule 403 principle, see State v. Lui, 61 H. 328, 603 P.2d 151 (1979).

Henderson v. Professional Coatings Corp.: Narrowing Third- Party Liability in Automobile Accidents. 15 UH L. Rev. 353.

Admission of evidence upheld. 63 H. 488, 630 P.2d 619; 4 H. App. 175, 664 P.2d 262.

Court abused its discretion in excluding evidence of driver's drinking before accident. 68 H. 447, 719 P.2d 387.

Court abused its discretion in admitting Honolulu Police Department Form 81, though parts of form where defendant invoked defendant's rights were excised; cannot be said that error harmless. 69 H. 68, 733 P.2d 690.

The admissibility of evidence even after a demonstration of relevance is a matter of discretion; no basis to establish a rule of admissibility based solely on the need for evidence. 70 H. 300, 769 P.2d 1098.

Videotape was veiled attempt to successfully recreate the motorcycle accident. 70 H. 419, 773 P.2d 1120.

Trial judge did not abuse discretion in admitting evidence of condition of abandoned child in prosecution for attempted second degree murder. 73 H. 109, 831 P.2d 512.

Admissibility of novel scientific evidence discussed, focusing on DNA profiling evidence. 73 H. 130, 828 P.2d 1274.

Trial court did not abuse its discretion in refusing to admit evidence that motorcyclist did not have motorcycle license at time of accident. 74 H. 308, 844 P.2d 670.

Defendant's statements relevant as direct evidence of a material element of terroristic threatening; court thus had no discretion to exclude. 75 H. 517, 865 P.2d 157.

Trial court did not err under rules 401 and 403 in admitting evidence that indicated that plaintiff's symptoms may have been linked to drug use and not solely to exposure to silicone. 78 H. 287, 893 P.2d 138.

Trial court did not abuse its discretion in admitting evidence of appellant's receipt of workers' compensation benefits, where the probative value of the evidence substantially outweighed the danger of unfair prejudice. 79 H. 14, 897 P.2d 941.

Admission of videotaped interview proper as it enabled jury to view whether sex assault victim's behavior was consistent with a child her age who had experienced a recent upsetting event. 80 H. 107, 905 P.2d 613.

Probative value of witness' testimony that witness suffered injuries in auto accident and testimony's relevance to whether the rear-end collision caused plaintiff's injuries substantially outweighed by danger of substantial delay, and confusing the jury. 80 H. 212, 908 P.2d 1198.

Absent any evidence to support defendant's claim that victim bit co-defendant on leg, court properly declined to allow examination of co-defendant's leg in jury's presence for danger of misleading the jury. 81 H. 15, 911 P.2d 735.

No prejudice to defendant by prosecution exhibiting co-defendant to jury where ample evidence in record to otherwise support conviction by jury. 81 H. 15, 911 P.2d 735.

No abuse of discretion by court admitting "gruesome" photos of decedent's sexual parts, face and nude body into evidence as photos of injuries not needlessly cumulative nor unfairly prejudicial. 81 H. 293, 916 P.2d 703.

Trial court abused discretion by excluding evidence of arson and breach of duty under insurance policy provisions where probative value of evidence on issue of whether insurer was warranted in denying claim outweighed any prejudicial effect. 82 H. 120, 920 P.2d 334.

Where defendant's witness would have contradicted officers' testimony, exclusion of witness' testimony under this rule was abuse of discretion. 83 H. 229, 925 P.2d 797.

Where a victim recanted allegations of abuse, probative value of prior incidents of violence between victim and defendant to show context of relationship, where relationship was offered as possible explanation for victim's recantation, far outweighed any prejudice. 83 H. 289, 926 P.2d 194.

Admitting knife into evidence not legally prejudicial to defendant once sufficient foundation had been laid and knife's relevancy established; no abuse of discretion. 83 H. 335, 926 P.2d 1258.

Abuse of discretion where court expressly qualified witness as expert in "visibility" analysis and none of factors under this rule appeared to be factors in exclusion of testimony regarding range of visibility. 85 H. 336, 944 P.2d 1279.

Where court failed to view otherwise relevant videotape before definitively ruling on its admissibility, exclusion of tape was abuse of discretion. 85 H. 336, 944 P.2d 1279.

Where effect of allowing officer's testimony regarding defendant's statements about defendant's prior involvement in and experience with prostitution and that "what occurred in this case was not prostitution" was to allow defendant to testify without waiving defendant's right against self-incrimination, the prejudicial effect of the statement was minimized by its overall exculpatory import and was thus properly admitted. 88 H. 19, 960 P.2d 1227.

Where substantial evidence was presented regarding residuary legatee's disposition to exert undue influence, probate court's error in admitting lay opinion testimony regarding residuary legatee's character did not substantially prejudice residuary legatee's rights and error was thus harmless. 90 H. 443, 979 P.2d 39.

Trial court did not abuse discretion by excluding evidence that victim had previously been incarcerated where, absent any offer of proof as to victim's violent conduct while in prison, probative value of victim's imprisonment was questionable and outweighed by danger of undue prejudice that jurors might believe that victim was a bad person who "got what he deserved. " 97 H. 206, 35 P.3d 233.

Where trial court was put on advance notice that defendant intended to invoke Fifth Amendment privilege against self-incrimination, court abused discretion by permitting prosecution to question defendant about false identification cards; risk of unfair prejudice occasioned by compelling criminal defendant to invoke privilege in front of jurors was substantial and not outweighed by probative value of prosecution's unanswered questions. 97 H. 206, 35 P.3d 233.

Trial court abused discretion, in admitting videotape into evidence without first previewing tape's contents, showing tape to jury, and in denying new trial, where prejudicial and misleading impact of videotape's contents on jury far outweighed its probative value. 82 H. 428 (App.), 922 P.2d 1041.

No abuse of discretion by trial court's admission of doctor's testimony regarding plaintiff's alcohol consumption where probative value of testimony not substantially outweighed by danger of unfair prejudice. 83 H. 78 (App.), 924 P.2d 572.

Photos of different wounds on victim's body caused by shooting or beating by defendant and accomplice not cumulative and properly admitted; photos' probative value not substantially outweighed by danger of unfair prejudice. 84 H. 112 (App.), 929 P.2d 1362.

Where seller's settlement offer did not contain any disclaimer of liability or releases from further claims against seller or broker, jury could have interpreted offer, despite cautionary instruction, as an admission of liability by seller; offer thus properly excluded. 84 H. 162 (App.), 931 P.2d 604.