State v. Lipka

In concluding that the evidence of defendant's use of the word "nigger" was admissible notwithstanding *836OEC 403, the majority holds that the trial court could permissibly determine that, under the circumstances here, the probative value of that evidence was not "substantially outweighed by the danger of unfair prejudice." OEC 403. I respectfully disagree.

Evidence is unfairly prejudicial when it has "an undue tendency to suggest a decision on an improper basis, commonly, although not always, an emotional one." State v. Lyons , 324 Or. 256, 280, 924 P.2d 802 (1996). We have held that such an…