ORS 40.160
Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion or undue delay

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 or needless presentation of cumulative evidence. [1981 c.892 §23]

Source: Section 40.160 — Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion or undue delay, https://www.­oregonlegislature.­gov/bills_laws/ors/ors040.­html.

See also annotations under ORS 45.530 in permanent edition.

Notes of Decisions

Under former similar statute (ORS 45.530)

Where existing evidence leaves issue in question, court may not exclude additional evidence as being cumulative. State v. Smith, 59 Or App 92, 650 P2d 178 (1982)

Under Evidence Code

Factors to be considered in determining whether probative value of relevant evidence outweighs any prejudicial impact it may have are: 1) need for the evidence; 2) its persuasiveness; and 3) its inflammatory effect upon jury; citing State v. Ritchie, 50 Or App 257, 622 P2d 768 (1981). State v. Huffman, 65 Or App 594, 672 P2d 1351 (1983)

Probative value of polygraph evidence is far outweighed by reasons for exclusion. State v. Brown, 297 Or 404, 687 P2d 751 (1984)

In prosecution under child neglect statute, ORS 163.545, evidence of whereabouts of mother and that she was drinking beer and fact that there was house fire and that children died in fire was relevant and properly admitted. State v. Goff, 297 Or 635, 686 P2d 1023 (1984)

Discretion of trial judge to exclude evidence relevant to bias or interest only obtains once sufficient facts have been established from which jury may infer bias or interest. State v. Hubbard, 297 Or 789, 688 P2d 1311 (1984); MacDonald v. Cottle, 133 Or App 35, 889 P2d 1320 (1995), Sup Ct review denied; State v. Lulay, 290 Or App 282, 414 P3d 903 (2018), Sup Ct review denied

Evidence of remedial measures taken by manufacturer to correct warning label before accident occurred is admissible. Hackett v. Alco Standard Co., 71 Or App 24, 691 P2d 142 (1984), Sup Ct review denied

Where defendant was charged with arson in connection with burning own house, evidence of fraudulent insurance claim was not unfairly prejudicial under this rule. State v. White, 71 Or App 299, 692 P2d 167 (1984), Sup Ct review denied

Where admission of defendant’s notice and withdrawal of lack of responsibility defense was not necessary evidence to offset claim that defendant’s retardation prevented defendant from making voluntary statements to police, relevance of evidence was outweighed by danger of unfair prejudice. State v. Hickman, 71 Or App 471, 692 P2d 672 (1984)

Where defendant in case of attempted murder asserted self-defense and attempted to present evidence concerning “battered spouse syndrome,” trial court did not abuse its discretion in striking testimony of women’s crisis center counselor that center had received approximately 100 calls from defendant in two month period and concerning substance of calls where, inter alia, last contact with center was approximately seven months before shooting, testimony would have been cumulative of other evidence and would have prolonged trial. State v. Moore, 72 Or App 454, 695 P2d 985 (1985), Sup Ct review denied

Exclusion of relevant evidence to avoid prejudice was premature where proper remedy was motion for separate trial in case where blood test was inadmissible on DUII charge but admissible on assault charge. State v. Armenta, 74 Or App 219, 702 P2d 1113 (1985)

Five-step analysis in weighing probative and prejudicial value of evidence is: 1) need for evidence; 2) certainty that other crime was committed by defendant; 3) strength or weakness of evidence; 4) inflammatory effect on jury; and 5) time-consuming and distracting nature of proof of other crime. State v. Johns, 301 Or 535, 725 P2d 312 (1986); State v. Kim, 111 Or App 1, 824 P2d 1161 (1992), Sup Ct review denied

Where officer saw defendant drive during same period of suspension but on later occasion than that which formed basis of trial officer’s testimony, that fact was admissible to rebut defense witness’s testimony on cross-examination that defendant did not drive during that period, because probative value of testimony outweighed other factors under this section. State v. Smith, 86 Or App 239, 739 P2d 577 (1987)

Probative value of evidence submitted by state in its case in chief of defendant’s pre-arrest silence for purpose of demonstrating consciousness of guilt was outweighed by danger it would unfairly prejudice jury. State v. Pigg, 87 Or App 625, 743 P2d 770 (1987)

In determining whether to admit relevant evidence of uncharged misconduct, court should: 1) assess probative value, weight and strength evidence provides to proponent’s case; 2) determine prejudicial effect and likelihood evidence will distract jury; 3) balance need for evidence against prejudicial effect; and 4) determine whether evidence should be admitted or excluded entirely or admitted only in part. State v. Mayfield, 302 Or 631, 733 P2d 438 (1987)

This rule bars introduction of polygraph test results in evidence even when parties have stipulated to its admissibility. State v. Lyon, 304 Or 221, 744 P2d 231 (1987)

Amendment of ORS 40.355 (Rule 609), deleting balancing of probative value against prejudicial effect makes this rule’s balancing inapplicable as to prior conviction evidence. State v. Carr, 91 Or App 673, 756 P2d 1263 (1988), Sup Ct review denied; State v. Babb, 91 Or App 676, 756 P2d 1264 (1988), Sup Ct review denied; State v. Dick, 91 Or App 294, 754 P2d 628 (1988), Sup Ct review denied; State v. King, 307 Or 332, 768 P2d 391 (1989); State v. Archer, 150 Or App 505, 947 P2d 620 (1997)

In product liability “failure to warn” case, defendant’s post-injury addition of container warnings and subsequent discontinuance of product distribution was either irrelevant to care exercised before injury or was so marginally relevant, that trial court was within discretion in excluding evidence for purpose of showing what defendants did or did not know. McPike v. Enciso’s Cocina Mejicana, Inc., 93 Or App 269, 762 P2d 315 (1988)

Tape recording of conversation between officer and defendant should have been edited to delete impermissible comment on witness’ credibility because prejudicial effect of officer’s opinion of credibility of complaining witness outweighed probative value of defendant’s response. State v. McQuisten, 97 Or App 517, 776 P2d 1304 (1989)

Where evidence that defendant had sexually abused victim’s mother 20 years earlier was inflammatory and uncertain due to staleness, admission under this section was abuse of discretion. State v. Mason, 100 Or App 240, 785 P2d 378 (1990)

Where inference could be drawn that defendant’s ability to drive was impaired by alcohol, trial court did not abuse its discretion by admitting evidence of officer’s observations and blood-alcohol test in prosecution of defendant for reckless driving. State v. Vorseth, 100 Or App 359, 786 P2d 217 (1990)

Exclusion of evidence of prior cocaine use by victim of alleged rape was not abuse of discretion by trial court. State v. Smith, 101 Or App 483, 791 P2d 500 (1990)

Because defendant’s defense rested heavily on expert’s opinion there was need for state to present evidence that expert’s opinion was not entitled to much weight, so probative value of evidence was not substantially outweighed by danger of unfair prejudice. State v. Shearer, 101 Or App 543, 792 P2d 1215 (1990), Sup Ct review denied

Where defendant was charged with DUII and witness testified defendant had poor balance and was staggering, medical records showing that defendant had undergone extensive leg surgery three years prior was not remote and went to basis of establishing defense. State v. Robinson, 104 Or App 613, 802 P2d 688 (1990)

Where danger that jury would have found defendant guilty of aggravated murder and in effect, condemned him to death on basis that he had wild look and looked sleazy when he tipped nude dancer is infinitesimally slight, especially given trial court’s instruction, danger of unfair prejudice did not substantially outweigh probative value of witness’ testimony identifying defendant as last person with whom victim was seen. State v. Nefstad, 309 Or 523, 789 P2d 1326 (1990)

Where defendant can viably describe conversation with police officer without mention of polygraph examination and defendant was not entitled to suppression of voluntary inconsistent statements merely because they were made during prepolygraph test interview, sanitized statements are admissible. State v. Hart, 309 Or 646, 791 P2d 125 (1990)

Where there was extremely remote possibility that jury would take testimony about matrix system into consideration in determining defendant’s guilt or sentence, probative value of testimony was not “substantially outweighed” by “danger of unfair prejudice, confusion of the issues or misleading the jury,” and evidence was properly admitted. State v. Smith, 310 Or 1, 791 P2d 836 (1990)

Where state’s introduction of evidence of victim’s pregnancy was prejudicial to defendant’s case but highly probative of defendant’s motive, trial court did not abuse its discretion in allowing evidence and denying defendant’s motion for mistrial. State v. Smith, 310 Or 1, 791 P2d 836 (1990)

Trial court did not abuse discretion in finding that unfair prejudice did not substantially outweigh probative value where court admitted evidence that defendant, rape victims’ grandfather, was having sexual intercourse with his daughter, victims’ mother. State v. Hall, 108 Or App 12, 814 P2d 172 (1991), Sup Ct review denied

When defendant contended that health of spouse depended on illegal use of marijuana, evidence of baggies and scales and testimony of police officer that baggies and scales indicate that defendant grew marijuana for non-personal use were relevant to prove manufacture of controlled substance. State v. Carsner, 117 Or App 406, 844 P2d 257 (1992), Sup Ct review denied

Polygraph report was admissible when offered only to show effect of test on person’s state of mind. Fromdahl and Fromdahl, 314 Or 496, 840 P2d 683 (1992)

Where evidence showed state of mind of defendant, admission of victim’s prior sexual abuse allegation against defendant was proper. State v. Bannister, 118 Or App 252, 846 P2d 1189 (1993)

Trial court did not abuse its discretion by admitting X-rated video tapes when tapes were offered to corroborate testimony of complaining witnesses and not to show defendant’s propensity to commit sexual abuse. State v. Rood, 118 Or App 480, 848 P2d 128 (1993), Sup Ct review denied

Forensic DNA testing is generally admissible. State v. Futch, 123 Or App 176, 860 P2d 264 (1993), aff’d 324 Or 297, 924 P2d 832 (1996)

Use of monomorphic probe in forensic DNA testing was reliable test method. State v. Futch, 123 Or App 176, 860 P2d 264 (1993), aff’d 324 Or 297, 924 P2d 832 (1996)

Probative value of results of polymerase chain reaction type of DNA testing, expressed as percentage of population having same gene characteristic as crime scene sample and defendant, was not outweighed by possibility of prejudice. State v. Lyons, 124 Or App 598, 863 P2d 1303 (1993), aff’d 324 Or 256, 924 P2d 802 (1996)

To determine admissibility of statements made in context of polygraph examination, court must determine first whether statement expresses defendant’s belief or recollection as to independently relevant fact and secondly whether statement can be redacted to exclude reference to polygraph examination without significantly altering meaning of original statement. State v. Harberts, 315 Or 408, 848 P2d 1187 (1993)

Evidence that defendant was in violation of parole conditions at time of incident was admissible to establish motive for assault on police officer. State v. Hampton, 317 Or 251, 855 P2d 621 (1993)

Where prosecution stressed that possession of weapon was legal and court gave proper limiting instruction, evidence that defendant previously possessed different weapon of same unique type as murder weapon was not unfairly prejudicial. State v. Trinh, 126 Or App 324, 868 P2d 779 (1994), Sup Ct review denied

Where criminal defendant proffers out-of-court photographic identification evidence to impeach credibility of eyewitness, nine factors are relevant for determining admissibility under Rule 401/403 balancing test. State v. Johanesen, 319 Or 128, 873 P2d 1065 (1994)

Testimony of judge as nonexpert witness regarding judge’s personal observation of events or judge’s communications to attorneys during prior trial at which judge presided is not per seunfairly prejudicial. Sansone v. Garvey, Schubert & Barer, 188 Or App 206, 71 P3d 124 (2003), Sup Ct review denied

Court may exclude relevant evidence of witness bias on grounds of undue prejudice only if court gives party opportunity to introduce other evidence from which bias may be inferred. State v. Tyon, 226 Or App 428, 204 P3d 106 (2009)

Where expert testifies about matter that tends to prejudice jury and testimony does not inform jury about anything that jury cannot determine on its own, testimony is inadmissible. State v. Southard, 347 Or 127, 218 P3d 104 (2009)

Where eyewitness identification evidence exists, court must examine relative reliability of evidence to determine probative value of identification and to determine and limit risk of unfair prejudice. State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012)

Where no suggestive pretrial state procedures were administered to witness, inherent suggestiveness of trial setting that may be prejudicial in general sense does not necessarily make a first time in-court eyewitness identification unfairly prejudicial as to require exclusion under this rule. State v. Hickman, 355 Or 715, 330 P3d 551 (2014)

Trial court’s decision to admit evidence of defendant’s use of racial slur was error when trial court did not assess prejudicial effect under this section of admitting statement, when statement had no probative value and when state could not argue for any legal basis under which to admit statement. State v. Roberts, 291 Or App 124, 418 P3d 41 (2018)

Whether particular bias evidence, including evidence of racial bias, is unfairly prejudicial and subject to exclusion must be based on precise evidence at issue and context of trial. State v. Naudain, 300 Or App 222, 452 P3d 970 (2019), aff’d 368 Or 140, 487 P3d 32 (2021)

Court’s placement of photographs of child victim in envelope so jury would have option of not looking at them is irrelevant to question of whether court abused its discretion because discretion inquiry necessarily presumes that jury will consider all properly admitted evidence. State v. Fincher, 303 Or App 165, 462 P3d 780 (2020), rev’d in part on other grounds 368 Or 560, 494 P3d 927, Sup Ct review allowed

Where defendant stipulates to particular facts, that stipulation does not automatically render cumulative other evidence touching on same facts. State v. Allen, 311 Or App 454, 489 P3d 1075 (2021), Sup Ct review denied

Where court ruled on defendant’s objection under this section but record lacked indication that court engaged in balancing probative value of evidence against potential for unfair prejudice, no further action was required to preserve defendant’s argument on appeal. State v. Garcia-Rocio, 312 Or App 275, 489 P3d 1053 (2021)

Law Review Citations

Under Evidence Code

25 WLR 847 (1989); 68 OLR 238 (1989); 78 OLR 315 (1999)

Rule 100. Short title
Rule 101. Applicability of Oregon Evidence Code
Rule 102. Purpose and construction
Rule 103. Rulings on evidence
Rule 104. Preliminary questions
Rule 105. Limited admissibility
Rule 106. When part of transaction proved, whole admissible
Rule 201(a). Scope
Rule 201(b). Kinds of facts
Rules 201(c) and 201(d). When mandatory or discretionary
Rule 201(e). Opportunity to be heard
Rule 201(f). Time of taking notice
Rule 201(g). Instructing the jury
Rule 202. Law that is judicially noticed
Rule 305. Allocation of the burden of persuasion
Rule 306. Instructions on the burden of persuasion
Rule 307. Allocation of the burden of producing evidence
Rule 308. Presumptions in civil proceedings
Rule 309. Presumptions in criminal proceedings
Rule 310. Conflicting presumptions
Rule 311. Presumptions
Rule 401. Definition of “relevant evidence.”
Rule 402. Relevant evidence generally admissible
Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion or undue delay
Rule 404. Character evidence
Rule 404-1. Pattern, practice or history of abuse
Rule 405. Methods of proving character
Rule 406. Habit
Rule 407. Subsequent remedial measures
Rule 408. Compromise and offers to compromise
Rule 409. Payment of medical and similar expenses
Rule 410. Withdrawn plea or statement not admissible
Rule 411. Liability insurance
Rule 412. Sex offense cases
Rule 412-1. Evidence not admissible in civil proceeding involving sexual misconduct
Rule 413. Measures and assessments intended to minimize impact of or plan for natural disaster
Rule 503. Lawyer-client privilege
Rule 503-1. Right of client to communicate with lawyer
Rule 504. Psychotherapist-patient privilege
Rule 504-1. Physician-patient privilege
Rule 504-2. Nurse-patient privilege
Rule 504-3. School employee-student privilege
Rule 504-4. Regulated social worker-client privilege
Rule 504-5. Communications revealing intent to commit certain crimes
Rule 505. Spousal privilege
Rule 506. Member of clergy-penitent privilege
Rule 507. Counselor-client privilege
Rule 507-1. Certified advocate-victim privilege
Rule 508a. Stenographer-employer privilege
Rule 509. Public officer privilege
Rule 509-1. Sign language interpreter privilege
Rule 509-2. Non-English-speaking person-interpreter privilege
Rule 509-3. Legislative branch offsite process counselor privilege
Rule 510. Identity of informer
Rule 511. Waiver of privilege by voluntary disclosure
Rule 512. Privileged matter disclosed under compulsion or without opportunity to claim privilege
Rule 513. Comment upon or inference from claim of privilege
Rule 514. Effect on existing privileges
Rule 601. General rule of competency
Rule 602. Lack of personal knowledge
Rule 603. Oath or affirmation
Rule 604. Interpreters
Rule 605. Competency of judge as witness
Rule 606. Competency of juror as witness
Rule 607. Who may impeach
Rule 608. Evidence of character and conduct of witness
Rule 609. Impeachment by evidence of conviction of crime
Rule 609-1. Impeachment for bias or interest
Rule 610. Religious beliefs or opinions
Rule 611. Mode and order of interrogation and presentation
Rule 612. Writing used to refresh memory
Rule 613. Prior statements of witnesses
Rule 615. Exclusion of witnesses
Rule 701. Opinion testimony by lay witnesses
Rule 702. Testimony by experts
Rule 703. Bases of opinion testimony by experts
Rule 704. Opinion on ultimate issue
Rule 705. Disclosure of fact or data underlying expert opinion
Rule 706. Impeachment of expert witness by learned treatise
Rule 801. Definitions for ORS 40.450 to 40.475
Rule 802. Hearsay rule
Rule 803. Hearsay exceptions
Rule 804. Hearsay exceptions when the declarant is unavailable
Rule 805. Hearsay within hearsay
Rule 806. Attacking and supporting credibility of declarant
Rule 901. Requirement of authentication or identification
Rule 902. Self-authentication
Rule 903. Subscribing witness’ testimony unnecessary
Rule 1001. Definitions for ORS 40.550 to 40.585
Rule 1002. Requirement of original
Rule 1003. Admissibility of duplicates
Rule 1003-1. Admissibility of reproduction
Rule 1004. Admissibility of other evidence of contents
Rule 1005. Public records
Rule 1006. Summaries
Rule 1007. Testimony or written admission of party
Rule 1008. Functions of court and jury
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