(dissenting):
I respectfully dissent because I am convinced that trying together the jury and non jury issues and letting the jury hear and see Ellis’ institutional history was erroneous and prejudicial. In the brief filed on behalf of Capps, it is stated:
“It is admitted that the prison record of the plaintiff was introduced for the purpose of showing that the confinement of the plaintiff in punitive isolation and the conditions of his confinement did not violate his right to be free from cruel and unusual punishment. However it is quite another matter to allege that this evidence had no relevancy or relationship to the issue of the assault and battery.” 1
The institutional record was admitted for its relevance on the non jury issues. Its relevance on the jury issues was extremely slight. It did not tend to prove or disprove that Capps directed a beating of Ellis.
The majority finds “that the records were admissible to show his bias and prejudice against the warden as head of the institution to which Ellis was so ill-adjusted.” Of the twenty-nine exhibits taken from Ellis’ institutional record, only Exhibit 32 relates to any direct interaction between Ellis and Capps. Others suggest bias against Capps only insofar as they indicate Ellis’ attitude toward various corrections officers and his extreme dissatisfaction with his situation at the prison where Capps was warden. Still others suggest possible bias against Capps only to the extent that misconduct in another Alabama prison could be construed as a basis for bias against Capps.2
The evidence was of minimal value for the purpose of affecting Ellis’ credibility. It was not needed for that purpose. The jury knew that Ellis was a felon, that he was currently a prisoner, and that he was attempting to recover damages from Capps; these circumstances reflect on Ellis’ credibility to ■ such an extent that the exhibits were at be'st cumulative on that issue.
The evidence was highly prejudicial. The exhibits tended to show that Ellis was a violent and dangerous troublemaker. A request that Ellis be transferred from Draper Prison indicated that Ellis
“has been a constant problem since coming to this institution. He has refused to work, missed the back gate on numberous [sic] occassions [sic], and at one time, missed his school assignment for a period of 4 weeks. He has had a number [sic] fights with other inmates and is always causing some kind of trouble. Request this inmate be transferred to Atmore Maximum [sic] for the betterment of this institution.” (Exh. 6.)
A statement by a corrections officer showed that during a visit to Ellis in punitive isolation, Ellis was “cursing and ask [sic] me to feel of the knot on his head, when I refused he spit on me three (3) times and continued cursing me and dared me to open the door” (Exh. 18.) A memorandum by a medical assistant related that Ellis became “insubordinate” during sick call, and *229cursed the assistant in forceful terms (Exh. 20). Other documents also refer to cursing at officers and the use of the “vilest of profane language” (Exhs. 22, 25, 27 and 28). A report by a corrections officer stated that Ellis injured another prisoner by throwing glass into his cell and that threats of “mace” and tear gas were necessary to induce Ellis to give up an unauthorized knife (Exh. 21). Another report concerning a later incident said that Ellis was a member of a small group of prisoners who “refused to come out of their cells and continued their abusive and profane language, vandalizing [of commodes and wash basins], and threatening the officers with bodily harm.” On this occasion “mace” was used, and Ellis was “relieved of a knife strapped to his mid-section” (Exh. 27). A statement by one officer indicated that Ellis participated in holding him hostage, threatened to kill him, and actually struck him in the stomach and in the face (Exh. 30). Another report stated that Ellis had threatened to kill Capps and another officer (Exh. 32).
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or of confusing or misleading the jury. Since its obvious purpose is to help assure a fair trial, this rule is applicable both in criminal cases and in civil actions.3 The twenty-nine contested exhibits in the present case contained such shocking accounts of Ellis’ prison conduct that the jury could hardly have avoided the feeling that Ellis should not succeed- in his lawsuit, even if Capps and others had assaulted him. Also, the emphasis placed upon these exhibits and the extraordinary conduct detailed in the various reports and statements may well have misled or confused the jury about the issues in the case. No matter his past conduct or character, Ellis was entitled to a fair trial on the issue of whether Capps ordered or otherwise participated in the alleged beating. Taking into consideration the limited relevance of these exhibits to the issue before the jury, and the extremely prejudicial nature of these exhibits, I cannot escape the conclusion that the wholesale admission into evidence of the items from Ellis’ institutional- history was reversible error.
. Appellee’s Brief, pp. 7-8.
. Exhibits 6-14 relate to occurrences at Draper
. As to criminal cases, see Shepard v. United States, 1933, 290 U.S. 96, 104, 54 S.Ct. 22, 78 L.Ed. 196; United States v. Bell, 5 Cir. 1972, 457 F.2d 1231, 1237; United States v. Ravich, 2 Cir. 1970, 421 F.2d 1196, 1204-1205; People v. Cavanaugh, 1955, 44 Cal.2d 252, 282 P.2d 53; Kiefer v. State, 1958, 239 Ind. 103, 153 N.E.2d 899; Wigmore, Evidence (3rd ed.) §§ 194, 1864, 1904; 4 Wigmore, Evidence (Chadbourn rev. 1972) § 1157 ; Wright, Fed.Prac. & Proc.: Criminal § 402 at p. 65 (1969), and cases cited therein.
As to civil actions, see Smith v. Spina, 3 Cir. 1973, 477 F.2d 1140, 1146; Shepard v. General Motors Corp., 1 Cir. 1970, 423 F.2d 406, 408; Ryan v. United Parcel Service, 2 Cir. 1953, 205 F.2d 362, 364; Burch v. Reading Company, E.D.Pa.1956, 140 F.Supp. 136, 147; Howser v. Pearson, D.D.C.1951, 95 F.Supp. 936, 941; Harper v. Bolton, 1962, 239 S.C. 541, 544, 124 S.E.2d 54, 55; Louisville & Nashville RR v. Pearson, 1892, 97 Ala. 211, 219, 12 So. 176, 180; Wigmore, Evidence (3d ed.) § 1864, esp. at 491 (also see §§ 199, 208, 1904) ; 4 Wigmore, Evidence (Chadbourn rev. 1972) § 1158; Wright & Miller, Fed.Prac. & Proc.; Civil § 2403 at p. 315 (1971).
See also Rule 403 of the proposed Federal Rules of Evidence; Rule 45 of the Uniform Rules of Evidence drafted by the National Conference of Commissioners on Uniform State Laws.