concurring and dissenting.
I view the record differently than the majority, and I believe that Evidence Rule 403 was misapplied. Although I conclude that cross-examination of Fisher was improperly restricted, I join in affirming that part of the judgment allowing Fisher damages and punitive damages on his claim because the error was harmless to that extent. Because the restriction of cross-examination of Fisher most substantially impacted Roger Johnson’s counterclaim, I respectfully dissent. I would reverse the judgment insofar as it dismisses Johnson’s counterclaim, and remand the counterclaim only for a separate and new trial.
Dr. Sharon Hagen, a clinical psychologist, testified for Fisher that he suffered post-traumatic stress from the beating by Johnson. After describing in detail the Minnesota Multiphasic Personality Inventory test *357that she gave Fisher, along with interviewing him, she was asked
Q Do you have an opinion based on a reasonable degree of psychological certainty whether or not Todd Fisher suffered any psychological effects from' the beating?
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A Yes.
When she was asked to state that opinion, the trial court sustained an objection to foundation. Led by Fisher's counsel, Dr. Hagen then testified that she “scored” the M.M.P.I., explained that, “after the scoring is completed, then we look at the report overall and make an interpretation of what’s reflected in the report or in the scales,” and that she used it with other materials and her interview to reach an opinion on “whether or not Mr. Fisher suffered any psychological effects from the beating.” Dr, Hagen opined that she “diagnosed Mr. Fisher at that time with the post-traumatic stress disorder.” Her written report on Fisher’s psychological condition was then marked, offered, and received as an exhibit.
Dr. Hagen’s written report states that her “evaluation [was] based on” the “Minnesota ⅛ Multiphasic Personality Inventory-2,” along with her interview, depositions, the complaint, and other material. Her report used the M.M.P.I.:
On the MMPI-2, Mr. Fisher gives a valid MMPI profile being honest with a balance between being self protective and self disclosing. ... The profile is similar’ to one experiencing symptoms of post-traumatic stress disorder.... The remaining symptoms, clinical presentation and MMPI findings are all consistent with one who has lingering symptoms of post-traumatic stress disorder.
Her opinion thus relied on the M.M.P.I. profile.
During cross-examination, Dr. Hagen testified:
The opinion is based primarily on my clinical interview. The M.M.P.I. I used to substantiate what I found in the clinical interview.
After the trial court ruled that Johnson’s attorney could not cross-examine her by “pick[ing] out individual questions [from the M.M.P.I.] and responses to those,” Fisher’s counsel asked Dr. Hagen on redirect:
Q And did Mr. Fisher pass the honesty examination in this M.M.P.I.?
A Yes.
When Johnson’s counsel renewed his effort to inquire of Dr. Hagen about Fisher’s answers to a few specific M.M.P.I. questions, on grounds “[t]hey opened that up,” the trial court still refused to allow that inquiry.
Later, while cross-examining Fisher, counsel for Johnson renewed his offer of proof to ask about three particularly relevant questions answered by Fisher in the M.M.P.I. test:
Q41: I do not always tell the truth.
A True.
Q134: At times I feel like picking a fistfight with someone.
A True.
Q150: Sometimes I feel as if I must injure either myself or someone else.
A Affirmative.
Despite recognizing that “the truthfulness scale question was asked by plaintiffs counsel, ...” the court still restricted cross-examination. See NDREv 106: An adverse party may require introduction of any other part of a statement introduced “which in fairness ought to be considered contemporaneously with it.”
The court reasoned:
It was self-reporting by Mr. Fisher that she based her analyses upon. As I said earlier that is a questionnaire in which he was told he had to answer questions by her. He had no real choice in that if he was going to be considered cooperating in the testing. Two of the questions have to do with feelings. They do not have to do with actions; No. 134 and 150. I believe it would be unduly prejudicial to pick out one or two of questions and address them to that plaintiff. I’m going to deny your request and we will proceed on.
*358Later, Johnson’s counsel asked Fisher: “Do you always tell the truth?” Fisher replied, “To the best of my knowledge, yes.”
Q My question is do you always tell the truth?
A I try to.
Q Sometimes you don’t then is that what you’re saying?
A On occasion I may slip.
Q Okay. At times do you feel like picking fights with someone else?
A Not that I know of, no.
Q Didn’t you tell or answer a question in this test that you did?
MR. PETERSON: Objection, Your Honor.
THE COURT: Sustained.
MR. PETERSON: I’d ask that that answer be stricken, the question I should say.
THE COURT: The jury is asked to disregard the question.
Q (By Mr. Larivee) Mr. Fisher, do you at times feel that you must injure yourself or someone else?
A Excuse me.
Q My question was do you sometimes feel that you must injure yourself or someone else?
MR. PETERSON: I renew our objection, Your Honor.
THE COURT: Overruled. You may answer the question.
A Will you say that again please.
Q Yes. Do you sometimes feel that you must injure either yourself or someone else?
A No.
Q You don’t?
A Nope.
Q And didn’t you tell Dr. Hagen just the opposite?
MR. PETERSON: Objection.
THE COURT: Sustained. The jury disregard the question.
MR. LARIVEE: Thank you. I have no further questions.
In my view, the trial court overly restricted cross-examination by misapplying Evidence Rule 403:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The Explanatory Note to NDREv 403 says:
The rule vests wide discretion in the trial court to control the introduction of evidence.
Still, the rule should be evenhandedly applied. The judicial thumb should not tilt the scales. I believe that the rule was misapplied in this case.
The Notes of the Advisory Committee to the identical federal rule are instructive:
The ease law recognizes that certain circumstances call for the exclusion of evidence which is of unquestioned relevance. These circumstances entail risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the other extreme. Situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from its admission.... The rules which follow in this Article are concrete applications evolved for particular situations. However, they reflect the policies underlying the present rule, which is designed as a guide for the handling of situations for which no specific rules have been formulated.
... “Unfair prejudice” within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.
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In reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction. See Rule 106 [now 105] and Advisory Committee’s Note thereun-*359dei\ The availability of other means of proof may also be an appropriate factor.
Fed.R.Evid. 403 advisory committee’s note (citations omitted). The rule allows evidence to be excluded only when its “probative value” is substantially outweighed by “the danger of unfair prejudice” or another irrational factor.
Fisher’s written statements about his credibility and disposition were very relevant to Johnson’s counterclaim. See State v. McIntyre, 488 N.W.2d 612, 617 (N.D.1992) (“The fact that the proffered evidence of [witness’s] prior use of excessive force is disputed goes to the weight of that evidence, not its admissibility.”). This relevancy is well explained by a scholarly summary of the reasons why an admission by a party-opponent is not hearsay under NDREv 801(d)(2):
The principle that a party should not be permitted to claim the. protection of the hearsay doctrine when his own statement is offered against him is a logical expression of the philosophy of the adversary system: Given that a party bears the lion’s share of responsibility for making or breaking his own case, it is reasonable to conclude that he is in no position to claim that his own statement should be excluded because not made under oath, subject to cross-examination, under circumstances enabling the trier of fact to observe demeanor. Perhaps equally important is the fact that the party himself is present and has ample opportunity to explain, deny, or rebut the statement attributed to him. Again the philosophy of the adversary system implies the judgment that it is fair to put a party at risk that the trier will accord full evidential force to his own statement unless he comes forward with some kind of counterproof....
4 David W. Louisell & Christopher B. Mueller, Federal Evidence § 423 (1980). In this ease, the excluded statements were part of Fisher’s communications with an expert for evidentiary purposes in this trial, not some remote or unrelated event. Fisher’s statements were made to evidence his mental and emotional condition for this case alone. Compare NDREv 503(d)(3) (“There is no [physician-patient] privilege under this rule as to a communication relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense_”).
“The authority of the trial judge under Rule 403 is extensive but not boundless,” and “the power to exclude evidence ... should be sparingly exercised.” 2 Louisell & Mueller, Federal Evidence § 125 at 18 (1985). Our rules, like the federal rules, favor admissibility, and exclusion of evidence is a drastic remedy. See 1 Wigmore, Evidence § 10a at 680 (Tillers rev. 1983). In this light, and as urged in 1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence ¶403[03] at 403-51 (1993), the trial court should “give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.”
The committee notes to Federal Rule 403 identify an “unfair prejudice” as an “undue tendency to suggest decision on an improper basis.” Unlike the reasons that specifically authorize exclusion in the detailed rules following Rule 403, the ones on character evidence (Rules 404 and 405), habit (Rule 406), subsequent remedial measures (Rule 407), offers and compromises (Rules 408, 409, and 410), and insurance (Rule 411), there is no possible unfairness present here. After viewing Fisher’s individual test answers in their most probative and least prejudicial light, there is no reason to visualize any prejudice to Fisher as unfair.
Rather, admissibility of these few test answers is consistent with the specific rules that come after NDREv 403. Evidence of other acts is admissible to prove motive, opportunity, and intent. NDREv 404(b). In cases where character or a trait of character of a party is an element of a claim or defense, as here, proof of specific instances of the person’s conduct is admissible. NDREv 405(b). See also NDREv 608(b) (“in the discretion of the court, if probative of truthfulness or untruthfulness, [specific instances of the conduct of a witness] may be inquired into on cross-examination of the witness ... concerning the witness’ character for truthfulness or untruthfulness-”). I see nothing implicitly unfair in admitting a party’s *360own pronouncements about his credibility and disposition.
“Unfaii' prejudice” means something more than an adverse implication to a party.
“Of course,” as the Fifth Circuit has remarked, “‘unfair prejudice’ as used in Rule 403 is not to be equated with testimony simply adverse to the opposing party. Virtually all evidence is prejudical or it isn’t material. The prejudice must be ‘unfair.’ ” The Committee’s Note explains that “unfair prejudice” means an “undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Evidence that appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or triggers other mainsprings of human action may cause a jury to base its decision on something other than the established propositions in the case. The appellate court may conclude that “unfair prejudice” occurred because an insufficient effort was made below to avoid the dangers of prejudice, or because the theory on which the evidence was offered was designed to elicit a response from the jurors not justified by the evidence. Rules 407 through 410 are to some degree based on the assumption that certain evidence is inherently prejudicial and must be excluded.
1 Weinstein’s Evidence § 403[03] (footnotes omitted). Prejudice to Fisher, in the unfair sense contemplated by Evidence Rule 403, is not evident here to me.
In order for this error to warrant a reversal and new trial, the error must affect a substantial right. NDRCivP 61; NDREv 103. In light of all the evidence, I largely agree with the majority’s comment in footnote four. The evidence of Johnson’s shameful attack on Fisher on March 27 and of Fisher’s damages is strong, and not seriously affected by this mistaken restriction on cross-examining Fisher. I believe that the exclusion of Fisher’s test answers was harmless error as to Fisher’s claim.
Still, the exclusion of these responses certainly affected Johnson’s substantial rights on his counterclaim for the March 5 incident when Johnson was beaten. Filloon v. Stenseth, 498 N.W.2d 353, 356 (N.D.1993) (reversing for a new trial when trial court restricted cross-examination about a witness’s employment by improperly weighing the probative value of potential bias under NDREv 403 and 411); Roshan v. Ford, 705 F.2d 102 (4th Cir.1983) (reversing for new trial when defendant in civil battery case was prevented by a 403 ruling from cross-examining plaintiff about their relationship prior to the fight and about plaintiffs conviction of a crime caused by defendant’s role as a drug informant). Therefore, I would reverse and remand Johnson’s counterclaim for a new and separate trial, while affirming Fisher’s judgment for damages from the March 27 beating.