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Carson v. Fine2/10/1994
ue is outweighed by its prejudicial effect. In contrast, evidence falling within ER 404(b) is relevant only for certain purposes and the court must determine whether the relevance of prior misconduct and the purpose for which it is being offered have been established before it admits such evidence. Similarly, evidence of a prior conviction under ER 609 is admissible only
when it is relevant to the credibility of a witness who has testified. Admissibility of evidence under ER 403, unlike ER 404(b) and ER 609, does not depend on the purpose for which it is offered. Thus, the rationale for requiring the trial court to weigh its decision on the record under ER 404(b) and ER 609 is not present in the case of an ER 403 objection.
Furthermore, we do not see that the supposed prejudice of a treating physician's adverse testimony compares with the inherent prejudice presented by evidence of prior misconduct or prior convictions. In explaining this conclusion, we look to the meaning of prejudice as used in ER 403.
[9, 10] ER 403 is the same as Federal Rule of Evidence 403, so we may look to both state and federal case law for guidance. See ER 403 comment, 1994 Washington Rules of Court, at 196. Both rules are concerned with what is termed "unfair prejudice", which one court has termed as prejudice caused by evidence of "scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.'" United States v. Roark, 753 F.2d 991, 994 (quoting United States v. McRae, 593 F.2d 700, 707 (5th Cir.), cert. denied, 444 U.S. 862, 62 L. Ed. 2d 83, 100 S. Ct. 128 (1979)), reh'g denied, 761 F.2d 698 (11th Cir. 1985); see also 5 K. Tegland, Wash. Prac., Evidence § 106, at 349 (3d ed. 1989); State v. Rice, 48 Wash. App. 7, 13, 737 P.2d 726 (1987) (in determining prejudice, the linchpin work is "unfair"). Another authority states that evidence may be unfairly prejudicial under rule 403 if it appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or "triggers other mainsprings of human action." 1 J. Weinstein & M. Berger, Evidence § 403 , at 403-36 (1985). Washington cases are in agreement, stating that unfair prejudice is caused by evidence likely to arouse an emotional response rather than a rational decision among the jurors. Lockwood v. AC&S; Inc., 109 Wash. 2d 235, 257, 744 P.2d 605 (1987); State v. Cameron, 100 Wash. 2d 520, 529, 674 P.2d 650 (1983).
In this case, the challenged testimony consisted of Dr. Duenhoelter's statement that, in his opinion, the defendant's treatment was within the standard of care. We do not see this as evidence "dragged in" for the sake of its prejudicial effect, nor do we see it as arousing the jury's sense of horror or its sympathies. The probative value of testimony offered by a treating physician is presumed. See Groff v. Department of Labor & Indus., 65 Wash. 2d 35, 45, 395 P.2d 633 (1964) ("special consideration should be given to the opinion of the attending physician"). The ability of the danger of unfair prejudice to substantially outweigh the probative force of evidence is "quite slim" where the evidence is undeniably probative of a central issue in the case. United States v. 0.161 Acres of Land, 837 F.2d 1036, 1041 (11th Cir. 1988) (citing Roark, 753 F
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