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  • Writer's pictureBrian Foley

Conroe Criminal Defense Lawyer - Rules of Evidence Series RULE 403

Updated: Jan 21

Texas Rule of Evidence 403 - Conroe Criminal Defense Lawyer - Brian Foley - Board Certified in Criminal Law.

Objection, the evidence they just offered is horrible for my case! That can be what if feels like when you have to object under Rule 403. This rule is often described as the "more prejudicial than probative rule." But what the rule actually says is that evidence may be excluded if:

1. Its probative value is substantially outweighed by:

a. Danger of unfair prejudice,

b. Confusing the issues,

c. Misleading the jury,

d. Undue delay, or

e. Needlessly presenting cumulative evidence.

Put into english, if the evidence is really hurtful and not all that helpful in deciding the main issue of the case then it can be excluded. The Court of Criminal Appeals held that there should be a "clear disparity between the degree of prejudice of the offered evidence and its probative value." Connor v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2003). The main point you should be getting from this is that Rule 403 changed the old common law way of having the trial judge simply balance the two and if the court deemed it more prejudicial than probative. The rule now says it has to be really really unfair.

May not Shall

Did you catch the part where it says the court "May" exclude the evidence? That means that even if the court believes that the court could exclude the evidence because of undue delay the court has broad discretion to admit the evidence anyway. Powell v. State, 189 S.W.3d 285, 290 (Tex. Crim. App. 2006) The standard on review is "Abuse of Discretion." Winkfield v. State, 792 S.W.2d 727 (Tex. App. -- Corpus Christi 1990, pet. ref'd).

So what does "unfair prejudice" mean?

The United States Supreme Court held, “[a]s to a criminal defendant, Rule 403's term "unfair prejudice" speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on an improper basis rather than on proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, (1997)


  • Unfair to allow testimony of a murder victim's character for making people angry. Dinkins v. State, 760 S.W.2d 374 (Tex. App. -- Fort Worth 1988, pet. ref'd)

  • Evidence of a prior conviction when stipulated. Old Chief v. United States, 519 U.S. 172, 191 (1997)

  • Evidence that four State's witnesses were gang members. Barlow v. State, 175 S.W.3d 839 (Tex. App. --Texarkana 2005 pet. ref'd).

  • Not unfair to enter defendant's parole status as motive to throw a gun out of a car. Powell v. State, 189 S.W.3d 285, 287-89 (Tex. Crim. App. 2006).

  • Error for court to refuse to allow cross examination of prior rape allegations made by current victim. Thomas v. State, 669 S.W.2d 420 (Tex. App. -- Houston [1st Dist.] 1984, pet. ref'd).

  • Evidence which is not based on an accepted scientific theory and technique, founded in literature, or not performed correctly on the occasion in question. Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). (Expanded by Hartman v. State, to all scientific expert testimony. 946 S.W.2d 60 (Tex. Crim. App. 1997).

  • Crime scene photographs of extraneous murder scene were excluded as unfairly prejudicial. Russell v. State, 113 S.W.3d 530, 545 (Tex. App. -- Fort Worth 2003, pet. ref'd).

  • May not admit an unopened bottle of vodka to represent an old whiskey bottle in DWI trial. Orrick v. State, 36 S.W.3d 622, 626 (Tex. App. -- Fort Worth 2000, no pet.).

  • Intoxication chart prepared by prosecutor was found to be "clearly error." Wheatfall v. State, 882 S.W.2d 829 (Tex. Crim. App. 1994).

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, or Other Reasons

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.

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