we've talked thus far merely about relevance in the abstract when is something sufficiently probative of of a fact that that is an issue in other words when is something um when does something have any tendency to make a fact an issue more or less likely and there are times when things will simply not be relevant this is going to be less often uh than than you might think quite often in court you'll hear people jump up and say objection your honor irrelevance what they quite often really mean uh is that that whatever relevant value this piece of evidence uh might have it's outweighed by something else uh most everything has some tendency to make a fact and issue more or less likely or why would we be talking about it but when we ask the deeper question whether the very small tendency that something has uh to make a factor issue more likely is worth the waste of time the confusion of the issues um or or the the thought that the jury might go down the wrong track with this piece of evidence then that really is what we most often are talking about when we have when we have objections to relevant testimony so i'll let you take a look at at the rule itself uh this is this is rule 403 um and and as you look at the rule i want you to note how how much wiggle room this is uh we talk about lawyers weasel words uh quite often words that give give an interpreter of a rule the power to go in all sorts of directions with it gives gives the interpreter of the rule a certain amount of flexibility well rule 403 is absolutely a rule that has has several weasel words in it it's a rule that gives its interpreter a great deal of discretion so look at the text of this rule the court may 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 wasting time or needless presentation of human cumulative evidence so what's really interesting about that is that even if even if the court finds that that the the prejudice from confusing the issues or the prejudice from the possibility of misleading the jury or wasting time um any number of things that could cause the evidence to uh the prejudicial impact of the of the evidence to substantially outweigh the probative value the court is then not even still required to exclude the evidence it simply it simply may do so so rule 403 what you should take from this is that it has its thumb strongly on the the scale of admissibility or or on the side of the scale of admissibility the federal rules of evidence um when they were drafted in the 70s really tried to encourage more and more things to be admitted now you might look at rule 403 and say it has absolutely no teeth whatsoever uh that that if a trial judge just chose to let everything in 403 would pretty much let him do so and that's that's an exaggeration the rule implies such a thing but you'll you when you look at at the appellate cases we'll look at in in this course uh and in this section uh you'll find that appellate courts actually do with some frequency reverse trial courts for failing to exclude evidence under rule 403 but the key thing to note here is that that that there is a balance between between probative value those things that have any tendency to make a facted issue more or less likely and then this prejudicial impact this confusion of the issues these things that might cause the jury to hate the defendant for reasons unrelated uh to whether or not he committed the crime uh cumulative evidence waste of time those when those things outweigh the probative impact or the probative value that's not enough to throw it out you can only throw out the evidence if the prejudicial impact substantially outweighs uh the probative value so as in all things we'll look at in in the rules you'll find that there is a strong tendency to admit evidence but you have to go through this balance and and keep your eye on the ball there will be times when when the the rules of evidence will change this balance slightly with the prejudice and probative sides of it with some impeachment issues that we will get to later and and those rules will change for criminal and civil defendants so keep your eye on this space but the key thing right now is that at an initial level you will always be balancing the probative value against against the potential prejudice of of the evidence knowing that the potential prejudice has to substantially outweigh the probative value before a court can even consider not admitting that evidence