Grounds of Prejudice, Confusion, or Waste of Time. This rule is almost identical to Federal Rule of Evidence 403. The rule merely codifies the common law powers of the court in this regard. The case law recognizes that certain circumstances call for the exclusion of evidence which is of unquestioned relevance. These circumstances entail risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the other extreme. Situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from its admission. Slough, Relevancy Unraveled, 5 Kan. L. Rev. 1, 12-15 (1956); Trautman, Logical or Legal Relevancy—A Conflict in Theory, 5 Vand. L. Rev. 385, 392 (1952) McCormick (2d ed.) § 185, at 440-41. The Federal Rule provides that the probative value must be “substantially” outweighed by these other factors before evidence is excluded. The problem with the word “substantially” is that it seems to require admission of evidence in cases where the court is certain that the evidence is more harmful than helpful, but cannot say that the balance is substantially one way or the other, only that it is as clear as it is close. Alaska Rule 403 omits “substantially” on the theory that the language “if its probative value is outweighed by…”0is a clear enough indication of the balance the court is supposed to strike in view of the further guidance to be found in the case law. If the balance between probative value and prejudicial effect (signifying all of the factors discussed in this rule) is close, the EV Judge should probably decide to admit the evidence. In other words, there is a slight presumption in favor of admitting relevant evidence. In order to overcome this minimal presumption, the prejudicial effect must be demonstrably greater than the probative value of the evidence. Application of this principle should produce the same results as the federal rule in most cases, but the fact that the balance is kept clearly a matter of discretion rather than reduced to measurement by the “substantial” yardstick, should free the court to make the ruling more clearly promoting a just result. The confusion attending the use of burden of persuasion terminology is also avoided by the omission of “substantially”; see, e.g., Gordon v. United States, 383 F.2d 936 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029, 20 L.Ed.2d 287 (1968). Exclusion for risk of unfair prejudice, confusion of issues, misleading the jury, or waste of time, all find ample support in the authorities. “Unfair prejudice” within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. The rule does not enumerate surprise as a ground for exclusion, in this respect following Wigmore’s view of the common law. 6 Wigmore § 1849. Cf. McCormick § 152, at 320, n.29, listing unfair surprise as a ground for exclusion but stating that it is usually “coupled with the danger of prejudice and confusion of issues.” While Uniform Rule 45 incorporates surprise as a ground and is followed in Kansas Code of Civil Procedure § 60-445, surprise is not included in California Evidence Code § 352 or New Jersey Rule 4, though both the latter otherwise substantially embody Uniform Rule 45. While it can scarcely be doubted that claims of unfair surprise may still be justified despite procedural requirements of notice and instrumentalities of discovery (especially in criminal cases), the granting of a continuance is a more appropriate remedy than exclusion of the evidence. Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Art. n. Extrinsic Policies Affecting Admissibility), Cal. Law Revision Comm’n, Rep., Rec. & Studies, 612 (1964). Moreover, the impact of a rule excluding evidence on the ground of surprise would be difficult to estimate. It is assumed that if a continu- ance is not feasible and if the evidence giving rise to a claim of surprise is somehow suspect, it may be excluded as prejudicial, confusing, or misleading, in the sound exercise of judicial discretion. In reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction. See Rule 105 and Reporter’s Comment thereunder. The availability of other means of proof may also be an appropriate factor. The rules which follow in this Article are concrete applications evolved for particular situations. However, they reflect the policies underlying the present rule, which is designed as a guide for the handling of situations for which no specific rules have been formulated.
