Mass. R. Evid. 403
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 needlessly presenting cumulative evidence. However, prior bad act evidence should be excluded if the court finds that its probative value is outweighed by the risk of unfair prejudice to the defendant, even if not substantially outweighed by that risk.
Mass. Guid. Evid. 403
This section states the general rule that the trial judge has discretion to exclude even relevant evidence when its probative value is "substantially outweighed" by the danger of unfair prejudice, confusion of the issues, misleading the jury, consuming time unnecessarily, or presenting cumulative evidence. See Commonwealth v. Spencer, 465 Mass. 32, 48 (2013); Gath v. M/A-Com, Inc., 440 Mass. 482, 490-491 (2003); Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418, 423 (1988). Prior bad act evidence, which is considered "inherently prejudicial," is evaluated by a more exacting standard and should be excluded when the risk of unfair prejudice merely "outweighs," rather than "substantially outweighs," its probative value. Commonwealth v. Crayton, 470 Mass. 228, 249 & n.27 (2014). Cross-Reference: Section 404(b), Character Evidence; Crimes or Other Acts: Crimes, Wrongs, or Other Acts.
Unfair Prejudice. Relevant evidence is presumed to be prejudicial or harmful to the party against whom it is offered, but exclusion is warranted only when the prejudice is unfair. Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 187-188 (2013). Unfair prejudice may result when jurors are unnecessarily exposed to inflammatory evidence that might cause them to decide the case based on emotion. Commonwealth v. Berry, 420 Mass. 95, 109 (1995). See, e.g., Commonwealth v. Cruzado, 480 Mass. 275, 279 (2018) (use of racial slur relevant to show motive; judge mitigated prejudicial effect by conducting individual voir dire of prospective jurors on whether the evidence would create bias); Commonwealth v. Bishop, 461 Mass. 586, 596-597 (2012) (racial slur presumptively poses risk of unfair prejudice such that "before a judge admits evidence that a defendant used this word to describe a man of color, the judge must be convinced that the probative weight of such evidence justifies this risk"); Gath v. M/A-Com, Inc., 440 Mass. 482, 490-491 (2003) (evidence of arguably intentional spoliation of evidence that was relevant to two central issues in case not unfairly prejudicial). Unfair prejudice also may result when the trier of fact considers evidence properly admitted for a limited purpose for an impermissible purpose. See, e.g., Commonwealth v. Wardsworth, 482 Mass. 454, 471-472 (2019) (evidence of defendant's gang affiliation, properly admitted to establish motive for killing, a nonpropensity purpose, created risk of unfair prejudice where jury were permitted to consider evidence on issue of guilt or innocence with no limitation); Commonwealth v. McIntyre, 430 Mass. 529, 542 (1999) (prosecutor improperly argued for substantive use of evidence admitted only for impeachment). The use of voir dire or limiting instructions may help to avoid unfair prejudice. Commonwealth v. Alleyne, 474 Mass. 771, 780 (2016) (discussing use of voir dire to mitigate prejudice). Compare Commonwealth v. Martinez, 476 Mass. 186, 194-195 (2017) (audio-video recording of news broadcast not unfairly prejudicial where judge explained that it was not admitted for its truth, required extensive redactions, and provided limiting instructions as to its use), with Wardsworth, 482 Mass. at 472 (broad "limiting instruction" permitted jury to consider evidence of gang affiliation for almost any purpose). A judge determining whether to admit bad act evidence should consider and articulate on the record whether a limiting instruction will be effective in preventing the jury from using the evidence for an improper purpose. Commonwealth v. Samia, 492 Mass. 135, 148 n.8 (2023).
In balancing probative value against the risk of unfair prejudice, the fact that the evidence goes to a central issue in the case weighs in favor of admission. Commonwealth v. Jaime, 433 Mass. 575, 579 (2001). See, e.g., Commonwealth v. Da Lin Huang, 489 Mass. 162, 174-175 (2022) (photographs of postmortem injuries inflicted on victim were relevant to show defendant's intent and malice); Commonwealth v. Jackson, 486 Mass. 763, 783 (2021) (autopsy photograph probative on "highly contested" issue of bullet trajectory); Commonwealth v. McGee, 469 Mass. 1, 11 (2014) (witness's demonstration of victim's position on couch probative on central issue of premeditation). But see Commonwealth v. Walters, 485 Mass. 271, 284 (2020) (photograph of decomposing body had only slight relevance of time of death and risk of unfair prejudice outweighed any probative value); Commonwealth v. Fidalgo, 74 Mass. App. Ct. 130, 133-134 (2009) (evidence that defendant had been passenger in three prior automobile accidents over past nine years in which she had claimed injuries and sought damages not relevant in prosecution for filing false motor vehicle insurance claim because it showed nothing about character of prior claims yet had potential for prejudice because case was essentially a credibility contest). The effectiveness of limiting instructions in minimizing the risk of unfair prejudice should be considered in determining admissibility. Commonwealth v. Dunn, 407 Mass. 798, 807 (1990). See also Section 404(b), Character Evidence; Crimes or Other Acts: Crimes, Wrongs, or Other Acts.
Confusion of Issues and Misleading the Jury. The trial judge has discretion to exclude relevant evidence if it has potential to confuse or mislead the fact finder. Commonwealth v. Rosa, 422 Mass. 18, 25 (1996); Commonwealth v. Beausoleil, 397 Mass. 206, 217 (1986). See Commonwealth v. Dabney, 478 Mass. 839, 859-860 (2018) (exclusion of impeachment evidence consisting of advertising invoices not abuse of discretion where admission of such evidence was likely to confuse jury in the absence of company testimony explaining record-keeping practices). In a bench trial, judges have broader discretion to admit evidence they might not admit before a jury, because "judges are less likely to be unduly swayed by potentially inflammatory evidence." Commonwealth v. Seesangrit, 99 Mass. App. Ct. 83, 91-92 (2021) (argument that sperm cell DNA evidence should have been excluded as more prejudicial than probative may have had merit if trial had been jury trial rather than bench trial).
Unnecessarily Time Consuming. The trial judge has discretion to exclude relevant evidence if it is unduly time consuming. Commonwealth v. Cruz, 53 Mass. App. Ct. 393, 407-408 (2001).
Cumulative Evidence. The trial judge has discretion to exclude evidence if it is merely cumulative. Commonwealth v. Bonds, 445 Mass. 821, 831 (2006); Fitchburg Gas & Elec. Light Co. v. Department of Telecomm. & Energy, 440 Mass. 625, 641 (2004). Evidence that is relevant to an essential element of a crime, claim, or defense is not cumulative and subject to exclusion simply because an opposing party offers to stipulate to the fact at issue. Gath v. M/A-Com, Inc., 440 Mass. 482, 490-491 (2003); Commonwealth v. Taghizadeh, 28 Mass. App. Ct. 52, 60-61 (1989) (defendant may not preclude prosecution from proving element of crime by offering stipulation).
Evidence of Similar Occurrences. Evidence of similar occurrences may be admitted if there is substantial identity between the occurrences and there is minimal danger of unfairness, jury confusion, or wasted time. See Denton v. Park Hotel, Inc., 343 Mass. 524, 527 (1962); Robitaille v. Netoco Community Theatre of N. Attleboro, Inc., 305 Mass. 265, 267-268 (1940). Whether the occurrences are sufficiently similar to be relevant is a fact-specific determination. See Dubuque v. Cumberland Farms, Inc., 93 Mass. App. Ct. 332, 345 (2018) (internal report describing 485 car strikes at Cumberland Farms locations properly admitted because those incidents were substantially similar and "relevant to the jury's consideration of whether the risk was foreseeable and whether Cumberland Farms was aware of that risk"). Cf. Kromhout v. Commonwealth, 398 Mass. 687, 692-693 (1986) (error to admit evidence of other accidents without showing of similarity of circumstances, particularly in light of court's exclusion of statistics about daily traffic volume). The requirement of substantial identity is not met when the other occurrence or occurrences "may have been the consequence of idiosyncratic circumstances" and therefore irrelevant to the case being tried. Read v. Mt. Tom Ski Area, Inc., 37 Mass. App. Ct. 901, 902 (1994). See Robitaille, 305 Mass. at 266-267. Evidence of similar occurrences may be admissible to show the following:
Causation. See Carter v. Yardley & Co., 319 Mass. 92, 94 (1946) (other instances of skin irritation caused by defendant's perfume properly admitted to show causation); Shea v. Glendale Elastic Fabrics Co., 162 Mass. 463, 464-465 (1894) (evidence that other people who worked in defendant's mill, under similar conditions, became ill from lead poisoning was admissible to prove cause of illness). But see Reil v. Lowell Gas Co., 353 Mass. 120, 135-136 (1967) (evidence of multiple other fires at gas plant and different plant owned by defendant were inadmissible because those incidents "would have been little help in determining the cause of the explosion on [the date in question]").
Notice. See Santos v. Chrysler Corp., 430 Mass. 198, 202-205 (1999) (no abuse of discretion to admit testimony of six Chrysler minivan owners regarding other braking incidents, as well as National Highway Transportation Safety Administration vehicle owners' questionnaires submitted by the six owners to establish notice of defect); Elwell v. Del Torchio, 349 Mass. 766, 766 (1965) (where plaintiff was injured by stairway railing giving way, proper to admit similar incident that occurred one year earlier and was known to defendants). But see Crivello v. All-Pak Mach. Sys., 446 Mass. 729, 737-738 (2006) (evidence of prior accidents involving bagging machine were properly excluded where no evidence that defendants were aware of any accidents).
Rebuttal of Claim of Impossibility. See Griffin v. General Motors Corp., 380 Mass. 362, 365-366 (1980) (results of experiment on air filtration system of same model car that was at issue in case were admissible to rebut defendant's theory that it was impossible for fumes from engine compartment to enter passenger compartment).
Absence of Complaint or Other Incident. Subject to the same requirement of substantial similarity or identity, evidence that there have been no other complaints or incidents may be admissible. See Carrel v. National Cord & Braid Corp., 447 Mass. 431, 447-448 (2006) (absence of oral or written complaints concerning bungee cord admissible to rebut questions regarding failure to conduct product testing); Silver v. New York Cent. R.R. Co., 329 Mass. 14, 19-21 (1952) (evidence that eleven other passengers in plaintiff's train car did not complain about temperature to porter would be admissible if other passengers were in substantially similar situation, if porter's duties included receiving such complaints and he was present to receive complaints on that day, and if it was unlikely that other passengers complained to another employee); Schuler v. Union News Co., 295 Mass. 350, 352 (1936) (absence of complaints of illness after people ate at defendant's restaurant admissible to rebut claim that defendant's turkey sandwich caused plaintiff's sickness). But see Marvin v. City of New Bedford, 158 Mass. 464, 467 (1893) (evidence that no accidents had occurred on highway was inadmissible to prove that defect in road did not exist).
Foreseeability. See Whitaker v. Saraceno, 418 Mass. 196, 199 (1994) (previous occurrences of similar criminal acts on defendant's premises may be considered in determining whether event in question was foreseeable).
Exclusion as a Sanction. See Section 103(g), Rulings on Evidence, Objections, and Offers of Proof: Exclusion as Sanction; Section 1102, Spoliation or Destruction of Evidence.
Constitutional Considerations. In a criminal case, the defendant has a constitutional right to present a complete defense; however, this right does not deprive the trial judge of discretion to exclude evidence that is repetitive, only marginally relevant, or that creates an undue risk of unfair prejudice or confusion of the issues. See Commonwealth v. Kartell, 58 Mass. App. Ct. 428, 433 n.2 (2003). See also Commonwealth v. Carroll, 439 Mass. 547, 552 (2003). The same considerations apply to limitations on cross-examination. See Commonwealth v. Gallett, 481 Mass. 662, 682 (2019) (judge must consider materiality of direct testimony and degree to which cross-examination was restricted).
Section 1105, Third-Party Culprit Evidence; Section 1107, Inadequate Police Investigation Evidence.
Collateral Attacks. The trial judge has discretion to exclude evidence that attacks the validity of an underlying order or judgment in the prosecution of an alleged violation. See Commonwealth v. Lockwood, 95 Mass. App. Ct. 189, 199 (2019) (in criminal prosecution for parental kidnapping, no abuse of discretion to exclude evidence that custody orders issued from Juvenile Court were void as product of fraud); Commonwealth v. Marrero, 85 Mass. App. Ct. 911, 912 (2014) (defendant cannot act in violation of G. L. c. 209A order and then assert as defense in subsequent criminal prosecution that original order should not have been granted).
Weapons Evidence. Weapons evidence typically implicates Section 404, Character Evidence; Crimes or Other Acts, and is subject to the more exacting test of admissibility permitting the court to exclude evidence of a crime, wrong, or other act if its probative value is simply outweighed, not substantially outweighed, by the risk of unfair prejudice. The basis for this distinction, and the admissibility of weapons evidence generally, is discussed in the Notes to Section 404(b)(2), Crimes, Wrongs, or Other Acts: Permitted Uses.