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May 04, 2022 Feature

Relevant vs. Unfair Prejudice: Federal Rules 401 and 403

Christy Albano

Generally, evidence must be relevant to be admissible. Thereafter, relevant evidence may be denied admission based upon unfair prejudice, that it is misleading, causes confusion or undue delay, wastes time, or is needlessly cumulative.

Rule 401 of the Federal Rules of Evidence states:

Evidence is relevant if:
(a) It has a tendency to make a fact more or less probable than it would be without the evidence; and
(b) The fact is of consequence in determining the action.

Federal Rule 403 is a limitation on Federal Rule 401 and defines when relevant evidence may be excluded:

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

We examine here what constitutes relevant evidence and how courts across the country weigh the probative vs. prejudicial value of evidence.


The General Rule of Admissibility is set forth in Tilson v. Tilson, 307 Neb. 275 (2020). “A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.”


When determining whether evidence is relevant, the courts look to the specific facts and consider whether the evidence offered provides probative value to the legal issues in the case. If the evidence has a tendency to make a material fact more or less likely, then it has probative value. All that must be established, however slight, is a rational and probative connection between the evidence offered and specific facts in the case.

In Harrison v. Harrison, 58 Va. App. 90 (2011), the husband argued the court should find in personam jurisdiction based on a proposed theory of “constructive matrimonial domicile.” The court found no Virginia precedent for such a theory and therefore rejected in personam jurisdiction over wife.

In Jewett v. Jewett, 265 Conn. 669 (2003), the court excluded “speculative” evidence and excluded witnesses who were to testify about husband’s settlement motive.

In Carmack v. Carmack, 603 S.W.3d 900 (Mo. Ct. App. 2020), the court admitted evidence that the husband’s transfer of the beneficiary under his IRA from his wife to siblings was fraud against the marital estate. Here, the court found substantial admitted trial testimony that husband gave away property without consideration and with the intent and purpose of defeating the marital rights of the wife.

In Holladay v. Holladay, 776 So. 2d 662 (Miss. 2000), the court stated, “If the evidence has any probative value at all, the rule favors its admission.” Here the court found that the trial court should have admitted evidence of the husband’s affair ten years prior. Even though the wife may have subsequently condoned the affair by continuing to live with him, the incident still affected her fear of being physically hurt when he raised his voice and threatened her. The issue was not whether she condoned it, but, rather, whether husband’s affair was still “having an effect on the condition of the marriage.”

In Furstenfeld v. Pepin, 23 Neb. App. 155 (2020), the court examined the admissibility of a settlement agreement. Where the settlement agreement was disputed, the court found the agreement to be admissible. The exhibit had probative value regarding whether the agreement existed and whether the proper person had the authority to negotiate and consent to the agreement.

In Hatfield v. Van Epps, 358 S.C. 185, 197 (2004), the court found the “[p]robative value of [the] evidence [relating to sale of husband’s medical practice] was substantially outweighed by the danger of unfair prejudice to Law Firm [in legal malpractice action]. In assessing [client’s] claim of malpractice . . . , the jury was clearly entitled to know that [husband’s] interest, which was valued at zero by [husband] and approximately $665 and $52,000 by [expert retained by law firm], was ultimately purchased for $775,000, and that the agreement to purchase it was signed by [husband] and his fellow shareholders prior to . . . hearing in [underlying] domestic action.” The court reversed and remanded the case back to the trial court on the issue of malpractice as it relates to the business valuation.

As seen from these cases, the courts give relevance careful consideration. If there is any probative value for the ultimate determination of the case, the evidence will be considered relevant and admitted for review by the trier of fact. If the evidence is more speculative than determinative, the court may exclude the evidence as irrelevant. It is important to specifically identify for the court the reason specific evidence is, or is not, important to the ultimate determination of the case.

Unfair Prejudice

Relevant evidence may be excluded if the evidence is unfairly prejudicial. Examples of this include evidence that’s not material to the legal issues at stake and that may unnecessarily inflame the emotions of the trier of fact and cause an improper verdict. Texas found that mere prejudice does not prevent admissibility. Unfair prejudice means “an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one.” JBS Carriers, Inc. v. Washington, 564 S.W.3d 830, 836 (Tex. 2018).

In Wolfe v. Wolfe, 918 S.W.2d 533, 539–40 (Tex. App. 1996, writ denied), exhibits including video of husband engaging in inappropriate sexual conduct with a paramour were excluded because the child had not seen any of this evidence and the potential for prejudicing the jury outweighed any probative value.

In A.M. v. M.G.M., 315 So. 3d 584 (Ala. Civ. App. 2020), the appellate court examined whether a mental health diagnostic impression of the wife by a custody evaluator (finding generalized anxiety disorder and a personality disorder with histrionic features) should have been excluded when the evaluator had not been appointed to make a psychiatric diagnosis of either parent and in-depth psychiatric testing had not been conducted by the custody evaluator. The court found the diagnostic impression was relevant. The evaluator reviewed the records of the wife’s psychologist and psychiatrist, giving sufficient foundation for her to state her impression, and the probative value exceeded any unfair prejudice due to the sensitive inquiry involved in a child custody case.

In Myhra v. Myhra, 16 Neb. App. 920, 931 (2008), the court examined the relevance of classification of property. The court found the determination of what is marital property is guided by Nebraska case law, not accounting principles. The appellate court determined that the “trial court did not err in concluding the merger bonus was marital property, irrespective of an accountant’s opinion to the contrary.” Therefore, even though the accountant should have been allowed to testify, the court found no prejudice from the exclusion of his testimony.

In Diamond Offshore Servs. v. Williams, 542 S.W.3d 539, 545 (Tex. 2018), the defendant appealed after plaintiff received a large verdict in a personal injury suit. The defendant’s surveillance video showed the plaintiff engaged in physical activities. The video was excluded by the trial court without the trial court reviewing the video. The appellate court reversed and remanded. Appellate courts around the country have similarly admonished trial courts that the proper exercise of discretion requires viewing visual evidence, particularly when balancing admissibility under Rule 403. On the other hand, video depositions need not be viewed before ruling on objections unless the objection is specific to a visual aspect of the deposition.

Ford Motor Co. v. Miles, 967 S.W.2d 377, 389 (Tex. 1998), involved a defective seat belt design. The Texas Supreme Court found the trial court improperly admitted evidence of Ford Motor Company’s test videos showing dummies being injured due to seat belts. The videos were not of the same type of vehicle or seat belt system at issue in this case. “The videos were calculated to arouse the sympathy and passions of the jury.”

In In re E.A.G., 373 S.W.3d 129, 147 (Tex. App—San Antonio 2012, pet. Denied), “[t]he relevant criteria for determining whether the prejudice of admitting the evidence substantially outweighs the probative value include, but are not limited to, the following: (1) the probative value of the evidence; (2) the potential the evidence has to impress the jury in an irrational but nevertheless indelible way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the evidence to prove a fact of consequence.” Here, the appellate court found that although some testimony should have been stricken and disregarded, the admission of this evidence was not an abuse of discretion because there was plenty of other evidence considered by the jury that could have resulted in the same verdict.

In Grace v. Grace, 253 Mich. App. 357, 365 (2000), the wife was not to mention or testify in “any manner whatsoever, to any facts regarding (husband)’s business entities, his personal income, the financial condition of his businesses, and any other such evidence, which occurred subsequent to October 1, 1990, until the plaintiff, in a pre-trial hearing, in the absence of the jury, can demonstrate to the court the relevance of such evidence, and that the evidence is more probative than prejudicial.” Husband argued in a motion for new trial that a new trial should be granted because wife entered said evidence. The court found the probative value of evidence of his business post divorce was not substantially outweighed by danger of unfair prejudice in wife’s action against husband for marital fraud. However, the court found no abuse of discretion where there was an eight-day jury trial and witnesses were subjected to rigorous cross examination.

In Reis v. Hoots, 131 N.C. App. 721, 727 (1998), whether to exclude evidence as overly prejudicial is within the discretion of the trial court. Here, the court found that, “[b]ecause the trial judge gave a limiting instruction for the evidence in dispute, it follows that he recognized the potential for prejudice and exercised his discretion in permitting its introduction. This Court will not intervene where the trial court properly appraises the probative and prejudicial values of evidence under Rule 403.”

It’s important to note that the appellate court is not to reweigh the probative versus prejudicial elements. They consider those elements in the context of whether the trial court abused its discretion. If there was prejudice to a party if relevant evidence had been excluded, that could be abuse of discretion. Likewise, if excluded evidence is determined to be relevant and not unfairly prejudicial, there is no abuse of discretion if the admission of that evidence would not have changed the outcome of the case.

Confusing the Issues and Misleading the Jury

Relevant evidence will be excluded if it confuses the issues and misleads the jury. The court continues to use the probative vs. unfairly prejudicial balancing test when determining whether the evidence will mislead the jury. Examples of this follow.

In Reville v. Reville, 312 Conn. 428, 504 (2014), the court found that just because evidence is inconclusive, does not make it inadmissible. “All that is required is that the evidence tend to support a relevant fact even to a slight degree, [as] long as it is not prejudicial or merely cumulative.” The court here examined the procedural history of an analysis of a pension and determined there was an abuse in discretion in the trial court failing to examine all of the relevant evidence.

In Lee v. Spoden, 290 Va. 235 (2015), the court used a balancing test to assess the probative value vs. its prejudicial effect. The mere fact that evidence is highly prejudicial to a party’s claim or defense is not a proper consideration in applying the balancing test for admission of relevant evidence; rather, a trial court must determine whether the probative value of the evidence is substantially outweighed by its unfair or unduly prejudicial effects. Here, the court considered evidence of sale of a property and the intent behind it. The court found that the trial court had previously decided that the party had a right to sell, and that demonstrated a reasonable basis for the party believing their actions were justified. That evidence is prejudicial to a claim that they acted in bad faith, but it is not unfairly or unduly prejudicial.

In Fullerton v. Fullerton, 709 So. 2d 162 (Fla. Dist. Ct. App. 1998), a school counselor was not allowed to testify as a fact witness regarding his conversations with the child about the child’s desire for a cat. There was no offer of relevance of testimony other than the child’s desire for a cat. The court determined unfair prejudice outweighed the probative value.

In re Marriage of Luckey, 73 Wash. App. 201 (1995), the use of an MMPI was questioned as prejudicial when it was used to claim the husband fits the psychological profile of child molester. There was other substantial evidence demonstrating there was no evidence father sexually abused his son, and experts recommended unsupervised possession for one weekend per month. Thus, there was no abuse of discretion by the trial court.

By utilizing the balancing test, the court should exclude evidence when the value of the evidence is more likely to confuse and mislead rather than assist the jury with reaching a proper verdict.

Undue Delay/Wasting Time/Needlessly Presenting Cumulative Evidence

Evidence may be excluded when it will cause undue delay or presents as cumulative.

In In re N.R.C., 94 S.W.3d 799, 807 (Tex. App. 2002, pet. denied), the appellate court considered the trial court’s order excluding all of the mother’s witnesses except for the mother herself. The appellate court reversed and remanded, finding abuse of discretion for not allowing the additional witnesses. The court stated, “The mere fact that another witness may have given the same or substantially the same testimony is not the decisive factor. Rather, we consider whether the excluded testimony would have added substantial weight to the complainant’s case.” The court found a litigant “retains the right to prove her case in the most persuasive manner possible. To defend herself, she may require several witnesses addressing the same material issue, as the testimony may come from disinterested sources or witnesses with differing vantage points. Indeed, litigants may, and often do, offer evidence from several different witnesses to prove one specific material fact. Often, the cumulative effect of the evidence heightens, rather than reduces, its probative force. Where, as here, different witnesses were to offer varying perspectives of the best interest of the children, the probative effect may likely have been heightened by the testimony of the stricken witnesses.” See also Benavides v. Cushman, Inc., 189 S.W.3d 875, 883–84 (Tex. App. 2006, no pet.).

In Ex Parte Clark, 23 So. 3d 1107, 1116 (Ala. 2009), the court elaborates that almost all evidence is relevant when it comes to child custody. “‘In deciding whether to allow particular testimony, the court should focus on whether the testimony “tends to shed light on the main inquiry” or draws attention from it.’ In matters of child custody, ‘[t]he best interests of the child are always of paramount importance.’ ‘It is the court’s duty to protect the interest of the children with scrupulous care.’” Here, the father made an offer of proof to establish the purpose of recalling an expert witness was important because new evidence had arisen since the witness initially testified and the new evidence would have changed the expert’s recommendation as to the custody determination. The court found that the exclusion of allowing the father to recall this witness prejudiced the father’s rights. The court remanded the case to the trial court to hear all relevant evidence.

As a practitioner, we must be prepared to carefully balance the reason additional evidence is necessary and show the court why it is not a waste of time.


The exclusion of relevant evidence is employed rarely and only in extreme cases. Federal Rule 403, likely mirrored by your own state law or cases, is your guide for exclusion of relevant evidence.

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Christy Albano  founded Albano Law, PLLC in Plano, Texas. She is a Board Certified Family Law Specialist who represents clients in every aspect of Family Law. She’s a Fellow in the American Academy of Matrimonial Lawyers and member of the Texas Academy of Family Law Specialists. The author helps answer the question of what constitutes relevant evidence and how are courts across the country are weighing the probative vs. prejudicial value of evidence.