Note: Maximizing the Min-Max Test: A Proposal To Unify the Framework for Rule 403 Decisions

By Leah Tabbert. Full text here.

Rule 403 of the Federal Rules of Evidence applies to virtually every piece of evidence introduced in federal proceedings, permitting the trial judge to exclude evidence if the danger of unfair prejudice substantially exceeds the evidence’s probative value. By requiring that the danger of prejudice substantially outweigh probative value in order to authorize exclusion, Rule 403 preserves the strong presumption of admissibility embodied by the federal relevance rules. After the trial judge has made a decision under Rule 403, appellate review is governed by an abuse of discretion standard. This standard preserves the principle of deference to trial judge discretion in evidentiary and procedural decisions. These twin principles—the strong presumption of admissibility and deference to trial judge decisions—play an important role in federal evidence law. But when an appellate court reviews the lower court’s decision to exclude evidence, it may have to choose which of these two principles to uphold.

This Note examines this internal tension within Rule 403 appellate review and considers the min-max test as a possible solution. Indeed, a majority of federal circuits employs some version of the min-max test. When a court conducts Rule 403 balancing using the min-max test, it will view the contested evidence as to minimize its prejudicial impact and maximize its probative value. Thus, the min-max test has the potential to resolve the internal tension of Rule 403 by advising appellate courts that the presumption of admissibility should trump deference to discretion when the two conflict. In its current form, however, the test is inconsistently applied. Fractured application of the min-max test could simply make matters worse by warping the scope of reasonable discretion at different levels of application. This Note argues that, in order to resolve both the circuit split and the internal tension of Rule 403, the min-max test should be codified clearly into the Federal Rules of Evidence.