dissenting:
I respectfully dissent. My dissent is not based on the notion that the trial judge should have kept the documents out of evidence. He had discretion to go either way, and I might have let them in myself, were I still a trial judge. We must, however, defer to a district judge’s discretion, when the trial judge had a sensible reason for exercising his discretion as he did.
Review of decisions on admission of evidence is traditionally for abuse of discretion, whether there are legal issues involved or not. That is because the legal issues are inextricably interwoven -with necessarily rough judgments about where the evidence is likely to go and how the jury is likely to use it. I shall not repeat the more complete discussion in the panel opinion, at 139 F.3d 748, 752-754.
Defense counsel had to deal with a problem regarding his self defense theory. The daughter shot an unarmed man who was standing with his hands up, and she testified that she did not fear him. The mother gave her daughter a gun while the daughter was chasing the man. The mother’s defense attorney dealt with the problem by reminding the jury that the mother was on trial, not the daughter, and the mother had to be judged by her state of mind, what she knew and thought, at the moment she gave her daughter the gun. The judge accordingly let in every bit of evidence with any hearing on what the mother knew at that moment. All he kept out was what the mother did not then know, that there were papers corroborating what the victim allegedly had said about the vicious things he had done. Because the mother had not known of the papers and had never seen them, the trial judge concluded that the papers could not have had any effect on her state of mind. That makes sense, and I do not think so sensible a decision can properly be characterized as an abuse of discretion.
The majority is correct, that the papers were nevertheless relevant in another sense. Evidence that the victim really had killed a man, and had stabbed another in the throat with a pen, made it more probable that the victim had told the mother that he had done these things. For that reason, it would not have been an abuse of discretion for a judge to have admitted the documents. But admissibility does not suffice to make exclusion an abuse of discretion.
There were good reasons to keep the documents out. The documents were somewhat remote corroboration, not direct evidence of anything relevant. They showed nothing directly about the mother’s state of mind, be*1216cause she had never seen them. And the risk of unfair prejudice to the prosecution was considerable. The victim was a bad man. Some people would say, in private and out of court, that “he deserved it,” or “he needed killing.” But no one says such things in a courtroom, because the law does not permit murder, even of very bad people.
.The jury’s questions — “did he really stab someone with a pen,” “Are there police or court documents to prove this or is it ‘brag?’ ’’ — may mean that the jury was asking the wrong question, whether the victim deserved to be shot. The majority says that the evidence went to the mother’s credibility, not the victim’s character. But the jury’s questions suggest that jurors were wondering whether the victim really did what he claimed, as opposed to whether Ms. James believed him. And the trial judge who, unlike us, was there, may have seen that coming. Plenty of evidence lends itself both to permissible and impermissible uses, and trial judges have to weigh the risks as the trial proceeds.
I concede the possibility that the truth of what the victim allegedly had told the mother gave his remarks the “ring of truth,” as the majority suggests. But this is pretty remote. This relevant purpose could be outweighed by the inappropriate purpose to which the jury might put the documents. The defendant was supposed to be on trial, not the victim.
A district judge is supposed to exclude evidence if its probative value “is substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403. Today’s majority opinion says “[w]e should not have one rule for the prosecution and another rule for the defense.” Indeed not. Rule 403 does not limit “unfair prejudice” to one side. “Unfair prejudice” means, at its most serious, “an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one.” McCormick on Evidence § 185 at n. 31 (2d ed.1972); see Fed.R.Evid. 403, 1972 Advisory Committee Note. While a defendant is fully entitled to prove self defense, a defendant is not entitled to persuade a jury by evidence “justifying the deliberate destruction by private hands of a detested malefactor.” II Wigmore on Evidence § 246, at 57.
The majority says that we should stick with United States v. Pitts, 6 F.3d 1366 (9th Cir.1993), but has the rule in Pitts wrong. We did not hold in that case that any evidence had to be admitted. We held that a trial judge’s decision to admit it was not an abuse of discretion. “We review the district court’s decisions balancing probative value against prejudicial effect for abuse of discretion.” Pitts at 1371. The judge in that case, like the judge in this one, sensibly could have kept the evidence out or let it in. The rule is the same for the prosecution and the defense, that a trial judge who makes a discretionary judgment for a sensible reason has the last word on the subject.
Exclusion in the case at bar is like the exclusion we approved in United States v. Comerford, 857 F.2d 1323 (9th Cir.1988). There, a victim had previously been arrested for hitting his wife, and we affirmed the trial judge’s decision to keep the domestic violence evidence out in an assault trial involving unrelated males. There is also a parallel to Cohn v. Papke, 655 F.2d 191 (9th Cir.1981). A man who had been arrested for soliciting sex from male police officers brought a civil rights suit for police brutality. We held that the trial judge had abused his discretion by admitting the defendants’ evidence that the man was homosexual, because the man’s sexuality was of limited relevance, and the relevance was outweighed by the risk of unfair prejudice. These decisions— Pitts, Comerford, and Cohn — represent the established law of our circuit, and today’s decision deviates.
United States v. Burks, 470 F.2d 432, 437 (D.C.Cir.1972), which the majority calls a “leading” opinion, strikes me as an anomaly not deserving to be followed decades later in another circuit. In Burks, the victim was late paying the defendant for a truck that he had bought. After they argued about it, the *1217defendant went to a friend’s house, got a gun, and came back and shot his debtor dead. Burks held that the killer was entitled to prove that the victim had killed his own six year old son some years earlier, in order to corroborate his self defense claim that he was scared of the man. The possibility that a man would feel that he needed a gun to argue about a debt with a man who had beaten a six year old to death strikes me as pretty unlikely. The trial judge made a reasonable decision in Burks that the risk of unfair prejudice, because of any juror’s natural feelings about a man who had beaten his six year old son to death, would outweigh the probative value toward showing which man started the deadly confrontation, and it is surprising that it was not affirmed.
The more typical result is the one that the Eighth Circuit reached in United States v. Driver, 945 F.2d 1410 (8th Cir.1991). The defendant had shot a man in the head, and wanted to prove that the victim was being-investigated for child abuse. He claimed that this evidence would help prove his self defense theory. The Eighth Circuit of course held that the “evidence of the child abuse investigation involving the victim would have served merely to portray him as a bad person, deserving to be shot, but did not relate to Driver’s claim of self defense.” Id. at 1416. We should follow Driver, not Burks.
We did not try Ms. James’s case. When a trial judge makes a sensible decision to admit or exclude evidence, well within the range of what is ordinary, for a sensible reason, as the trial judge did in this case, we should let it alone. Ms. James got a fair trial.