United States v. Dale Lee Hitt, 981 F.2d 422 (9th Cir. 1992). · Go Syfert
United States v. Dale Lee Hitt, 981 F.2d 422 (9th Cir. 1992). Cases Citing This Book View Copy Cite
“where the evidence is of very slight (if any) probative value, it's an abuse of discretion to admit 3 it if there's even a modest likelihood of unfair prejudice or a small risk of misleading the jury.”
143 citation events (76 in the last 25 years) across 10 distinct courts.
Strongest positive: United States v. Ramiro Ponce-Galvan (ca9, 2024-03-29)
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1993 2009 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) United States v. Ramiro Ponce-Galvan
9th Cir. · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
where the evidence is of very slight (if any) probative value, it's an abuse of discretion to admit 3 it if there's even a modest likelihood of unfair prejudice or a small risk of misleading the jury.
discussed Cited as authority (verbatim quote) Emmanuel Bracy v. Carl Worrell
9th Cir. · 2019 · signal: see · quote attribution · 1 verbatim quote · confidence high
rightly or wrongly, many people view weapons, especially guns, with fear and distrust. . . . hotographs of firearms often have a visceral impact that far exceeds their probative value. . . .
discussed Cited as authority (verbatim quote) United States v. Bill Lawrence (2×) also: Cited "see"
9th Cir. · 1999 · signal: see · quote attribution · 1 verbatim quote · confidence high
where the evidence is of very slight (if any) probative value, it's an abuse of discretion to admit it if there's even a modest likelihood of unfair prejudice or a small risk of misleading the jury.
discussed Cited as authority (rule) Cawley v. American Financial Security Life Insurance Company
D. Ariz. · 2025 · confidence medium
“Where the evidence is of 22 very slight (if any) probative value, it’s an abuse of discretion to admit it if there’s even a 23 modest likelihood of unfair prejudice or a small risk of misleading the jury.” United States 24 v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992). 25 B.
discussed Cited as authority (rule) Pologa-Seiuli v. Rice
D. Ariz. · 2024 · confidence medium
“Where the evidence is of 14 very slight (if any) probative value, it’s an abuse of discretion to admit it if there’s even a 15 modest likelihood of unfair prejudice or a small risk of misleading the jury.” United States 16 v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992). 17 Here, Plaintiff is correct that putting forth evidence of his criminal conviction, which 18 occurred just prior to the altercation out of which his excessive force claim arises, could 19 “inflame the passions of the jury such that they find against Plaintiff because of his 20 conviction.” (Doc. 86 at 2).
discussed Cited as authority (rule) Wendy Cunning v. Skye Bioscience, Inc.
9th Cir. · 2024 · confidence medium
Evid. 103(b); United States v. McElmurry, 776 F.3d 1061 , 1066–67 (9th Cir. 2015). 3 likelihood of unfair prejudice or a small risk of misleading the jury.”) (quoting United States v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992)).
discussed Cited as authority (rule) Mendoza v. Shinn
D. Ariz. · 2024 · confidence medium
“Where the evidence is of 24 very slight (if any) probative value, it’s an abuse of discretion to admit it if there’s even a 25 modest likelihood of unfair prejudice or a small risk of misleading the jury.” United States 26 v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992). 27 Defendants’ argument that Jensen is irrelevant because it dealt with systemwide 28 correctional issues, rather than the specific course of care selected by Dr. Stewart, or the 1 specific policies or customs maintained by Centurion as applied to Plaintiff, is inapposite. 2 (Doc. 123 at 2–3).
examined Cited as authority (rule) Sweidy v. Spring Ridge Academy (7×)
D. Ariz. · 2023 · confidence medium
“Where the evidence is of very slight 8 (if any) probative value, it’s an abuse of discretion to admit it if there’s even a modest 9 likelihood of unfair prejudice or a small risk of misleading the jury.” United States v. Hitt, 10 981 F.2d 422, 424 (9th Cir. 1992). 11 Here, the evidence of Defendant Kate Deily’s boyfriend, or her son, is in no way 12 relevant to Plaintiff’s claims.
cited Cited as authority (rule) Araujo v. Coachella Valley Water District
S.D. Cal. · 2023 · confidence medium
“We let jurors see and hear even marginally 12 relevant evidence, because we trust them to weigh the evidence appropriately.” United 13 States v. Hitt, 981 F.2d 422, 423 (9th Cir. 1992).
discussed Cited as authority (rule) REX - Real Estate Exchange Inc v. Zillow Inc
W.D. Wash. · 2023 · confidence medium
This evidence is excluded because “the probative value of the evidence is substantially outweighed by the danger of unfair 13 prejudice . . . or misleading the jury[.]’” United States v. Hitt, 981 F.2d 422, 423 (9th Cir. 1992) (quoting Fed.
discussed Cited as authority (rule) Tan Lam v. City of Los Banos
9th Cir. · 2020 · confidence medium
But even if the PTSD evidence were slightly relevant to Officer Acosta’s credibility, it would be improper to admit the evidence if there were “even a modest likelihood of unfair prejudice or a small risk of misleading the jury.” United States v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992).
examined Cited as authority (rule) United States v. Christopher Preston (3×)
9th Cir. · 2017 · confidence medium
We have long held that “[w]here the evidence is of very slight (if any) probative value, it’s an abuse of discretion to admit it if there’s even a modest likelihood of unfair prejudice or a small risk of misleading the jury.” United States v. Wiggan, 700 F.3d 1204, 1213 (9th Cir. 2012) (quoting United States v. Hitt, 981 F.2d 422, 424 (9th Cir.1992)).
discussed Cited as authority (rule) United States v. Thomas Hazelrigg, III
9th Cir. · 2016 · confidence medium
But the photographs were not misleading, did not have “a visceral impact that far exceeds their probative value,” were not likely to “arouse irrational-fears and prejudices,” and did not “ma[k]e the difference between acquittal and conviction.” United States v. Hitt, 981 F.2d 422, 424-25 (9th Cir. 1992).
cited Cited as authority (rule) United States v. Dennis Clinton
9th Cir. · 2015 · confidence medium
See United States v. Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir.2005); United States v. Hitt, 981 F.2d 422, 424 (9th Cir.1992).
discussed Cited as authority (rule) United States v. Jefferson Gatewood (2×)
9th Cir. · 2015 · confidence medium
II. “ ‘Where ... evidence is of very slight (if any) probative value, it’s an abuse of discretion to admit it if there’s even a modest likelihood of unfair prejudice.’” United States v. Wiggan, 700 F.3d 1204, 1213 (9th Cir.2012) (quoting United States v. Hitt, 981 F.2d 422, 424 (9th Cir.1992)).
discussed Cited as authority (rule) United States v. Felix (2×) also: Cited "see"
N.D. Cal. · 2014 · confidence medium
Defendant contends that the government’s improper use of the photograph was so prejudicial that the validity of the jury’s verdict was undermined, citing United States v. Hitt, 981 F.2d 422, 423 (9th Cir.1992) (photograph of gun exterior, shown with a dozen other weapons, had “exceedingly small” probative value on cross-examination of defense expert who opined about malfunction, where the photo gave absolutely no indication of internal wear, dirt or defect).
discussed Cited as authority (rule) United States v. Reza Hossnieh
9th Cir. · 2013 · confidence medium
Therefore, though prejudicial, see United States v. Hitt, 981 F.2d 422, 424 (9th Cir.1992), the pictures were relevant to whether Howisey would interpret the voicemail as a serious expression of Hossnieh’s intent to harm or assault him. 3.
discussed Cited as authority (rule) United States v. Joann Wiggan (2×)
9th Cir. · 2012 · confidence medium
And, as we have noted: “Where the evidence is of very slight (if any) probative value, it’s an abuse of discretion to admit it if there’s even a modest likelihood of unfair prejudice or a small risk of misleading the jury.” United States v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992).
cited Cited as authority (rule) United States v. Espinoza-Baza
9th Cir. · 2011 · confidence medium
United States v. Hitt, 981 F.2d 422, 424 (9th Cir.1992).
discussed Cited as authority (rule) Hernandez v. State (2×)
Wyo. · 2010 · confidence medium
Instead, he relies on this statement in a federal decision: "Where the evidence is of very slight (if any) probative value, it's an abuse of discretion to admit it if there's even a modest likelihood of unfair prejudice or a small risk of misleading the jury." United States v. Hitt, 981 F.2d 422, 424 (9th Cir.1992).
cited Cited as authority (rule) Roberson v. Briddle
9th Cir. · 2007 · confidence medium
United States v. Hitt, 981 F.2d 422, 424 (9th Cir.1992).
discussed Cited as authority (rule) United States v. Kevin Eric Curtin (2×)
9th Cir. · 2007 · confidence medium
R.Evid. 404(a) 31 Fed.R.Evid. 404(b) 32 Guam v. Shymanovitz, 157 F.3d 1154, 1159 (9th Cir.1998). 33 United States v. Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir.2005)(quoting Rule 403). 34 Old Chief v. United States, 519 U.S. 172, 180 , 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997). 35 United States v. Ham, 998 F.2d 1247 , 1252 (4th Cir.1993) (quoting United States v. Masters, 622 F.2d 83, 87 (4th Cir.1980)). 36 United States v. Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir.2005) (quoting United States v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992)). 37 See, e.g., United States v. Gillespie, 852 F.2d 4…
discussed Cited as authority (rule) United States v. Curtin
9th Cir. · 2007 · confidence medium
“We accept without need of extensive argument that implica- tions of child molestation, homosexuality, and abuse of women unfairly prejudice a defendant.”39 In United States v. 33 United States v. Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir. 2005)(quoting Rule 403). 34 Old Chief v. United States, 519 U.S. 172, 180 (1997). 35 United States v. Ham, 998 F.2d 1247, 1252 (4th Cir. 1993) (quoting United States v. Masters, 622 F.2d 83, 87 (4th Cir. 1980)). 36 United States v. Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir. 2005) (quoting United States v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992)).…
discussed Cited as authority (rule) United States v. Chezem
9th Cir. · 2006 · confidence medium
Unlike United States v. Hitt, 981 F.2d 422, 424 (9th Cir.1992), where a photograph of weapons that were not connected to the defendant was presented to the jury, the machine guns here were relevant to the conspiracy charge and were properly admitted into evidence, and the testimony consistently established Chezem’s association with the weapons.
cited Cited as authority (rule) United States v. Peer
9th Cir. · 2006 · confidence medium
Peer insists that this inquiry is controlled by our decisions in United States v. Hitt, 981 F.2d 422, 423 (9th Cir. 1992) and United States v. Green, 648 F.2d 587, 595 (9th Cir.1981).
discussed Cited as authority (rule) United States v. Jose Luis Gonzalez-Flores
9th Cir. · 2005 · confidence medium
“Where the evidence is of very slight (if any) probative value, it’s an abuse of discretion to admit it if there’s even a modest likelihood of unfair prejudice or a small risk of misleading the jury.” United States v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992).
discussed Cited as authority (rule) United States v. Gonzalez-Flores
9th Cir. · 2005 · confidence medium
Ellis, 147 F.3d at 1135 ; Arambula-Ruiz, 987 F.2d at 604-05 . [4] “Where the evidence is of very slight (if any) probative value, it’s an abuse of discretion to admit it if there’s even a modest likelihood of unfair prejudice or a small risk of mis- leading the jury.” United States v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992).
discussed Cited as authority (rule) United States v. John Gilbert Ogles, United States of America v. John Gilbert Ogles (2×)
9th Cir. · 2005 · confidence medium
It may be true that “many people view weapons, especially guns, with fear and distrust.” United States v. Hitt, 981 F.2d 422, 424 (9th Cir.1992).
cited Cited as authority (rule) United States v. Ogles
9th Cir. · 2005 · confidence medium
It may be true that “many people view weapons, especially guns, with fear and distrust.” United States v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992).
cited Cited as authority (rule) United States v. Messano
9th Cir. · 2004 · confidence medium
See Fed.R.Evid. 403; United States v. Hitt, 981 F.2d 422, 424 (9th Cir.1992) (“The district judge has wide latitude in making Rule 403 decisions.”). 2.
cited Cited as authority (rule) United States v. Jose Juan Ramirez-Robles
9th Cir. · 2004 · confidence medium
United States v. Hitt, 981 F.2d 422, 424 (9th Cir.1992).
cited Cited as authority (rule) United States v. Hays
9th Cir. · 2004 · confidence medium
See Fed.R.Evid. 403; United States v. Hitt, 981 F.2d 422, 423-24 (9th Cir.1992).
discussed Cited as authority (rule) Belmontes v. Woodford
9th Cir. · 2003 · confidence medium
Gray [v. Klauser, 282 F.3d 633, 651 (9th Cir.2002)]; United States v. Hitt, 981 F.2d 422, 425 (9th Cir.1992); see also O’Neal, 513 U.S. at 443 , 115 S.Ct. 992 , 130 L.Ed.2d 947 (“[T]he State normally bears responsibility for the error that infected the initial trial.”).
discussed Cited as authority (rule) John Espiredion Valerio v. Jackie Crawford, Director of the Department of Prisons E.K. McDaniel Warden (2×)
9th Cir. · 2002 · confidence medium
Gray v. Klauser, 282 F.3d 633, 651 (9th Cir.2002); United States v. Hitt, 981 F.2d 422, 425 (9th Cir.1992).
discussed Cited as authority (rule) William Charles Payton v. Jeanne Woodford, Warden, William Charles Payton v. Jeanne Woodford, Warden (2×)
9th Cir. · 2002 · confidence medium
Gray, 282 F.3d at 651 ; United States v. Hitt, 981 F.2d 422, 425 (9th Cir.1992); see also O'Neal, 513 U.S. at 443 , 115 S.Ct. 992 ("[T]he State normally bears responsibility for the error that infected the initial trial.").
discussed Cited as authority (rule) Larry Wayne Thomas v. Susan Hubbard, Warden (2×) also: Cited "see"
9th Cir. · 2002 · confidence medium
Nevertheless, evidence that Thomas used a gun to commit a prior act of violence is prejudicial and evokes a “visceral [reaction] that far exceeds [any] probative value,” United States v. Hitt, 981 F.2d 422, 424 (9th Cir.1992).
cited Cited as authority (rule) United States v. Miguel Angel Cardenas
9th Cir. · 1997 · confidence medium
United States v. Hitt, 981 F.2d 422, 424 (9th Cir.1992) (citing United States v. Kinslow, 860 F.2d 963, 968 (9th Cir.1988)).
discussed Cited as authority (rule) UNITED STATES of America, Plaintiff-Appellee, v. James Robert HERNANDEZ, Defendant-Appellant
9th Cir. · 1997 · confidence medium
Whether under a “fair assurance” or a “more probably than not” standard, See United States v. Hitt, 981 F.2d 422, 425 (9th Cir.1992) (describing apparent conflict in this circuit as to appropriate standard of review for evidentiary error), the government has not demonstrated that the error was harmless.
cited Cited as authority (rule) United States v. Robbie Len Bascue, United States of America v. Ronald Norman Bascue
9th Cir. · 1996 · confidence medium
Hitt, 981 F.2d at 424 (citations omitted). 16 Here, the jury saw more than a photograph.
discussed Cited as authority (rule) People v. Mateo
Mich. · 1996 · confidence medium
The United States Court of Appeals for the Eighth Circuit in United States v. Nevils, 897 F.2d 300, 307 (C.A.8, 1990) said: "We must be able to say with `fair assurance' that the error did not sway the jury's verdict." The United States Court of Appeals for the Ninth Circuit, in United States v. Hitt, 981 F.2d 422, 425 (C.A.9, 1992), observed that at times the Circuit had applied a "fair assurance" test and at others a "more probable than not" test, and said: A 55% likelihood that the error was harmless qualifies as "more probable than not," but it's hardly a "fair assurance" of harmlessness.
discussed Cited as authority (rule) Heyne v. Caruso
9th Cir. · 1995 · confidence medium
Fed.R.Evid. 403; see Monotype Corp. PLC v. International Typeface Corp., 43 F.3d 443, 448-50 (9th Cir.1994); United States v. Hitt, 981 F.2d 422, 423-25 (9th Cir.1992); United States v. Calhoun, 604 F.2d 1216, 1219 (9th Cir.1979).
discussed Cited as authority (rule) Heyne v. Caruso
9th Cir. · 1995 · confidence medium
Fed.R.Evid. 403; see Monotype Corp. PLC v. International Typeface Corp., 43 F.3d 443, 448-50 (9th Cir.1994); United States v. Hitt, 981 F.2d 422, 423-25 (9th Cir.1992); United States v. Calhoun, 604 F.2d 1216, 1219 (9th Cir.1979).
cited Cited as authority (rule) United States v. Richard Ernest Ramos, United States of America v. Carlos Reyes Mendoza, United States of America v. Gonzalo Hernandez, United States of America v. Deborah Lynn Mendes
9th Cir. · 1995 · signal: cf. · confidence medium
Fed.R.Evid. 403; cf. United States v. Hitt, 981 F.2d 422, 424 (9th Cir.1992).
cited Cited as authority (rule) United States v. Alfred A. Smith
9th Cir. · 1994 · confidence medium
United States v. Hitt, 981 F.2d 422, 425 (9th Cir.1992).
cited Cited as authority (rule) United States v. Maria Luisa Rosales-Deevangelista, United States of America v. Raul Rosales
9th Cir. · 1994 · confidence medium
"We let jurors see and hear even marginally relevant evidence, because we trust them to weigh the evidence appropriately." United States v. Hitt, 981 F.2d 422, 423 (9th Cir.1992).
discussed Cited as authority (rule) United States v. Salvador Gallardo Velasco, Aka: Salvador Gallardo Valasco Aka: Salvador Gallardo-Velasco
9th Cir. · 1994 · confidence medium
Evidence 8 "Where ... evidence is of very slight (if any) probative value, it's an abuse of discretion to admit it if there's even a modest likelihood of unfair prejudice or a small risk of misleading the jury." United States v. Hitt, 981 F.2d 422, 424 (9th Cir.1992).
discussed Cited as authority (rule) Rupe v. Wood
W.D. Wash. · 1994 · confidence medium
Similarly, the Ninth Circuit has *1346 recognized that “Rightly or wrongly, many people view weapons, especially guns, with fear and distrust.” United States v. Hitt, 981 F.2d 422, 424 (9th Cir.1992).
examined Cited as authority (rule) United States v. Ramon Martinez Lopez (3×) also: Cited "see"
9th Cir. · 1994 · confidence medium
"We let jurors see and hear even marginally relevant evidence, because we trust them to weigh the evidence appropriately." United States v. Hitt, 981 F.2d 422, 423 (9th Cir.1992).
discussed Cited as authority (rule) United States v. Jaime Ortiz-Marquez, United States of America v. Cain Barajas-Arredondo
9th Cir. · 1994 · confidence medium
Regardless of whether we apply the "fair assurance" or the "more probable than not" harmless error standard in a case like this, see United States v. Hitt, 981 F.2d 422, 425 (9th Cir.1992) (noting conflict in Ninth Circuit cases), we do not believe that the district court's refusal to admit the police report requires reversal.
cited Cited as authority (rule) United States v. William Andrew Davison
9th Cir. · 1994 · confidence medium
"We let jurors see and hear even marginally relevant evidence because we trust them to weigh the evidence appropriately." United States v. Hitt, 981 F.2d 422, 423 (9th Cir.1992).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Dale Lee HITT, Defendant-Appellant
92-30032.
Court of Appeals for the Ninth Circuit.
Dec 2, 1992.
981 F.2d 422
Bryan E. Lessley, Asst. Federal Public Defender, Eugene, OR, for defendant-appellant Dale Lee Hitt., Deborah J. Dealy-Browning, Asst. U.S. Atty., Eugene, OR, for plaintiff-appellee U.S.
Nelson, Reinhardt, Kozinski.
Cited by 89 opinions  |  Published
KOZINSKI, Circuit Judge:

Dale Lee Hitt was convicted of possessing an unregistered machine gun in violation of 26 U.S.C. § 5861(d). The government alleged he had altered a semiautomatic rifle so it would discharge more than one shot per trigger pull — the defining characteristic of a machine gun. 26 U.S.C. § 5845(b). The rifle had indeed been modified in a way consistent with the government’s theory, though Hitt’s lawyer suggested it had been modified by its previous owner. I RT 49. Some internal parts usable for machine guns (but not themselves illegal) were found in a gun case in Hitt’s room, but Hitt’s lawyer suggested they too might have come from the rifle’s previous owner. Id.

The key question, though, was whether the rifle would in fact rapid-fire. The government and Hitt each had their own experts test-fire it: In the government’s test, the rifle did fire more than one shot per trigger pull, but when Hitt’s expert (witnessed by two police officers) tested it, it didn’t. Hitt’s expert suggested the gun may have fired automatically in the government’s test because of a malfunction, perhaps because the internal parts were dirty, worn or defective. In response, the government introduced a photograph of the rifle which, it argued, showed the rifle was neither dirty, worn nor defective. II RT 95.

Unfortunately, the photograph showed nothing of the gun’s interior. All the jury could see was the outside, and not very well at that, as the gun occupied only a small part of the 4" X 6" photograph. The rest was taken up by about a dozen other weapons — nine other guns, including three that looked like assault rifles, and several knives — all belonging to Hitt’s housemate. Hitt objected to admission of the photograph under Fed.R.Evid. 403, but the district court overruled his objection. [1]

I

A. Under Fed.R.Evid. 402, “[a]ll relevant evidence is admissible,” except as otherwise provided. We let jurors see and hear even marginally relevant evidence, because we trust them to weigh the evidence appropriately. Nonetheless, when the probative value of the evidence is “substantially outweighed by the danger of unfair prejudice ... or misleading the jury,” Fed. R.Evid. 403, the evidence must be kept out.

B. The photograph’s probative value was exceedingly small. The defense theory was that the gun fired as an automatic because the internal parts were dirty, worn or defective. II RT 70-71. The prosecution understood this too: When the prosecutor cross-examined the defendant’s expert, he asked whether there was “exceptional dirt in” the rifle, and whether there were “worn or dirty parts in that machine.” Id. at 71-72 (emphasis added).

But the gun’s external appearance reveals nothing at all about its internal state. Firearms are designed so the internal parts suffer most of the strain from the discharge. Wear, dirt and defects that afflict the internal mechanism generally have no[*424] effect on the firearm’s appearance; it’s not uncommon for a gun that looks clean and in working order to misfire because of dirt or defects inside. Here there was absolutely no indication that the type of wear, dirt or defect Hitt’s expert was talking about could be seen by inspecting the outside of the gun.

Moreover, even if the rifle’s inside condition were somehow related to its outside appearance, it’s virtually impossible to tell whether the gun is clean or dirty from the photograph, in which the rifle is seen from several feet away. The photograph might well have been excludible under Rule 402 as totally irrelevant, had a Rule 402 objection been made.

C. At the same time, the photograph was fraught with the twin dangers of unfairly prejudicing the defendant and misleading the jury. It showed a dozen nasty-looking weapons, which the jury must have assumed belonged to Hitt. The photograph looked like it was taken at Hitt’s residence: The guns were laid out in an obviously residential room; the jury knew Hitt was arrested at home, I RT 23-24; the photograph was talked about in the same breath as two others identified at trial as having been taken in Hitt’s bedroom, I RT 36. Moreover, there was no one else the jury could have suspected of owning the guns. Hitt’s roommate, who in fact owned all the other weapons, wasn’t even mentioned during Hitt’s trial. Inferring that all the weapons were Hitt’s wasn’t just a plausible inference; it was the only plausible inference.

Once the jury was misled into thinking all the weapons were Hitt’s, they might well have concluded Hitt was the sort of person who’d illegally own a machine gun, or was so dangerous he should be locked up regardless of whether or not he committed this offense. Rightly or wrongly, many people view weapons, especially guns, with fear and distrust. Like evidence of homosexuality, see, e.g., United States v. Gillespie, 852 F.2d 475, 478 (9th Cir.1988); Cohn v. Papke, 655 F.2d 191, 194 (9th Cir.1981), or of past crimes, see, e.g., United States v. Bland, 908 F.2d 471, 473 (9th Cir.1990), photographs of firearms often have a visceral impact that far exceeds their probative value. See, e.g., United States v. Green, 648 F.2d 587, 595 (9th Cir.1981) (per curiam); see also United States v. Peltier, 585 F.2d 314, 327 (9th Cir.1978) (dictum), cert. denied, 440 U.S. 945, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979); United States v. Robinson, 560 F.2d 507, 513-14 (2d Cir.1977) (en banc), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978); United States v. Warledo, 557 F.2d 721, 724-26 (10th Cir.1977). The prejudice is even greater when the picture is not of one gun but of many.

But the photograph could do more than arouse irrational fears and prejudices. It could also lead the jury to draw some perfectly logical—though mistaken—inferences. Hitt’s main defense was that he had the bad luck of owning a rifle that was defective or dirty, or perhaps had been modified by its previous owner. A jury that thought Hitt owned almost a dozen guns could very reasonably have viewed this argument with skepticism. The jurors could have inferred that a gun enthusiast like Hitt would be able to tell if the gun had been modified by someone else, or be able to make the modifications himself. Or they could have thought that someone that interested in guns would naturally keep them clean and in good working order. Of course, the jury shouldn’t have drawn these inferences, because none of the other guns were Hitt’s. Yet the inferences were entirely plausible once the jury concluded Hitt owned the whole arsenal.

D. The district judge has wide latitude in making Rule 403 decisions. United States v. Kinslow, 860 F.2d 963, 968 (9th Cir.1988), cert. denied, 493 U.S. 829, 110 S.Ct. 96, 107 L.Ed.2d 60 (1989). But this latitude isn’t unlimited. Where the evidence is of very slight (if any) probative value, it’s an abuse of discretion to admit it if there’s even a modest likelihood of unfair prejudice or a small risk of misleading the jury.

The evidence here was not only highly prejudicial and at most marginally probative—it was also misleading. It’s bad enough for the jury to be unduly swayed by something a defendant did; it’s totally[*425] unacceptable for it to be prejudiced by something he seems to have done but in fact did not. Admitting the photograph, with nothing at all to keep the jury from being misled — no limiting instruction, no redaction — violated Rule 403.

II

Having determined there was error, we must next decide whether it was harmless. There’s a conflict in our circuit about the standard of review for harmless error. Some cases require that we affirm only if we can say with “fair assurance” that the error was harmless. See, e.g., United States v. Webbe, 755 F.2d 1387, 1389 (9th Cir.1985); United States v. Felix-Jerez, 667 F.2d 1297, 1304 (9th Cir.1982). This standard seems to have the Supreme Court’s blessing. See Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1247-48, 90 L.Ed. 1557 (1946). Other Ninth Circuit cases compel affirmance if it’s “more probable than not” that the error was harmless. See, e.g., United States v. Lui, 941 F.2d 844, 848 (9th Cir.1991); United States v. Browne, 829 F.2d 760, 766 (9th Cir.1987), cert. denied, 485 U.S. 991, 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988). [2]

We needn’t resolve this conflict here, though, because the error wasn’t harmless under either standard. This was a close case: An expert on one side claimed the gun fired more than one shot per trigger pull; an expert on the other (corroborated by two police officers) said it didn’t. The photograph may well have made the difference between acquittal and conviction. We can’t say it was more probable than not that Hitt would have been convicted without the photograph. A fortiori, then, we can’t say with “fair assurance” that he’d have been convicted without it.

REVERSED.

1

. Hitt also argues that some of the searches conducted by the police violated the Fourth Amendment. Although we have considerable doubt about the legality of these searches, we need not reach this issue because of our disposition of Hitt’s Rule 403 argument.

2

. This isn’t just wordplay: A 55% likelihood that the error was harmless qualifies as "more probable than not," but it’s hardly a "fair assurance” of harmlessness. Kotteakos defines "fair assurance” as absence of a "grave doubt,” 328 U.S. at 765, 66 S.Ct. at 1248, and a 45% chance that the defendant would have been acquitted but for the error certainly seems like a "grave doubt.” While we obviously don't deal in such precise probabilities, "more probable than not” and "fair assurance” can, in some cases, lead to conflicting results.