2015 ORS 40.160¹
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]

(Rule 403)

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 (Child neglect in the second degree), 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

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. Impeachment by evidence of conviction of crime) (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)

Law Review Cita­tions

Under Evidence Code

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

Chapter 40

(Generally)

Notes of Decisions

General rule is that polygraph evidence is inadmissible in pro­ceed­ing governed by Oregon Evidence Code. State v. Brown, 297 Or 404, 687 P2d 751 (1984)

Party could introduce results of polygraph test taken by spouse for purpose of showing that response of party upon learning polygraph results was reasonable. Fromdahl and Fromdahl, 314 Or 496, 840 P2d 683 (1992)

Where state law completely precludes reliable, ma­te­ri­ally exculpatory evidence, exclusion of that evidence violates Due Process Clauses of United States Constitu­tion. State v. Cazares-Mendez, 233 Or App 310, 227 P3d 172 (2010), aff'd State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491, 256 P3d 104 (2011)

Oregon Evidence Code articulates min­i­mum standards of reliability that apply to many types of evidence for admissibility, including eyewitness identifica­tion evidence, and parties must employ code to address admissibility of eyewitness testimony. State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012)

Law Review Cita­tions

59 OLR 43 (1980); 19 WLR 343 (1983)

Chapter 40

Evidence Code

Annota­tions are listed under the heading "Under former similar statute" if they predate the adop­tion of the Evidence Code, which went into effect January 1, 1982.


1 Legislative Counsel Committee, CHAPTER 40—Evidence Code, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors040.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 40, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano040.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.