COMMENTS This rule should be read in conjunction with Rule 401 and 403. It serves to limit the admissibility of relevant evidence in those instances where a Constitutional provision, statutory rule of evidence or rule prescribed by the Supreme Court is applicable. Most Constitutional applications of the rule involve the exclusionary rule and the Fourth and Fifth Amendments. Congressional restrictions under the Rule invariably involve the creation of a privilege or a prohibition against disclosure of certain information. It should be borne in mind that evidence is relevant when it establishes the existence of a fact, which, taken alone or in connection with other facts, render the existence of another fact more certain or more probable. 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, waste of time, or needless presentation of cumulative evidence. B. Court may consider admitting evidence with cautionary instruction. This rule sets forth the restrictions imposed on relevant evidence and codifies the view that evidence is not admissible merely because it is relevant; there are many restrictions. They are the result of the application of social policy on the law. In criminal cases, evidence, although relevant, is often excluded because it would be unduly prejudicial. With few exceptions, the exclusion of evidence in various types of litigation turn on policy applications of the Constitution such as due process and notice requirements. In determining whether the relevant evidence he seeks to introduce may be excluded, the litigator should consider whether: a) The introduction of the evidence violates the defendant's constitutional right to a fair trial (e.g., inflammatory photographs). b) It would be unfair to allow the introduction of the evidence c) The introduction of the evidence will unduly delay the proceedings d) The evidence will prove a fact that the opposing party is prepared to concede or stipulate to, or e) The evidence is not the best available to prove the existence or nonexistence of a fact. Although the rule does not literally include surprise within its scope, one may nevertheless infer that it is included within the scope of the term unfair prejudice. The term surprise as it is used here is in the nature of estoppel. The circumstances in which a claim of surprise would be appropriate are where the proponent of the evidence, by some device, artifice or tactic, whether intentionally or unintentionally, leads the opponent to rely to his detriment upon the representation of the other. When determining whether to apply this rule, the court should consider whether a limiting instruction would minimize or lessen the harm of evidence considered to be unduly prejudicial. Another factor to be considered is the availability of other competent evidence, which does not have the same prejudicial effect. |