Does a judge have to "read every word" of an exhibit as part of Rule 403 balancing?

Rule 403 states: "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." Typically a district court's admission of evidence, including its Rule 403 balancing, is reviewed for abuse of discretion. United States v. Hardrick , 766 F.3d 1051, 1055 (9th Cir. 2014).

In United States v. Curtin , 489 F.3d 935, 957 (9th Cir. 2007) (en banc), however, we held that, in the context of reviewing "abhorrent [exhibits], ... a district court making a Rule 403 decision must know precisely what is in the [exhibits] in order for its weighing discretion to be properly exercised and entitled to deference on appeal." The district court in that case had not read certain pornographic stories possessed by the defendant in their entirety before admitting them, and we concluded that, had the district court read the stories, it would have identified a particularly disgusting passage and "required that it be edited out of the exhibit as both irrelevant and dangerously prejudicial." Id. We further stated that "[o]ne cannot evaluate in a Rule 403 context what one has not seen or read. Here, given the depraved and patently prejudicial nature of the irrelevant evidence ... that the court overlooked, we are unable to concludeas the government would have us dothat this error was harmless." Id. at 958. The requirement to "read every word" of an exhibit as part of the Rule 403 balancing was subsequently expanded to all Rule 403 inquires

[871 F.3d 1064]

into exhibits, not just exhibits involving particularly inflammatory content as was at issue in Curtin . United States v. McElmurry , 776 F.3d 1061, 1070 (9th Cir. 2015).