Contrasting Admission Of Relevant Evidence Under the FRE And The Federal Death Penalty Act

"Admissibility of relevant evidence is actually narrower under the FDPA [Federal Death Penalty Act] than under the FRE." - United States v. Fell, 531 F.3d 197 (2d Cir. June 27, 2008) (No. 06-2882-CR)

Defendant Fell appealed the sentence of death imposed by the U.S. District Court for the District of Vermont after he was convicted of carjacking and kidnapping resulting in death. Part of his appeal concerned his claim that the court erroneously excluded a draft plea agreement that the defendant had signed. The defendant contended it "was mitigation evidence that rebutted the government's position that Fell had not accepted responsibility" for his crimes.

The draft plea agreement had been specifically conditioned upon approval by the U.S. Attorney General, pursuant to Department of Justice guidelines. After the defendant and the U.S. Attorney submitted the plea agreement, the Attorney General rejected it. The government sought the death penalty and moved to exclude the draft plea agreement and statements made during plea negotiations as irrelevant.

The trial court agreed to exclude the plea agreement evidence because it constituted only "a prosecutor's statements of personal belief" on aggravating and mitigating factors, that "should have no bearing on the jury's independent evaluation of the evidence." In addition, the trial court emphasized that the draft had minimal probative value because "the opinions of the prosecutors [did not] make the existence or non-existence of any mitigating factor more probable or less probable." United States v. Fell, 372 F.Supp.2d 773, 783 (D.Vt. 2005).

Nonetheless, the trial court did allow the defendant to introduce a stipulation during the penalty phase that reflected that he had offered to plead guilty in exchange for a sentence of life imprisonment without parole. According to the trial court this "offer [was] relevant to the mitigating factor of acceptance of responsibility." All of this was to no avail for the defendant, who was sentenced to death. On appeal, he contended that the trial court violated the FDPA because the draft agreement was relevant to the mitigation factors that the jury should have considered.

The Second Circuit rejected this argument, noting that "[i]n cases governed by the FDPA, the Federal Rules of Evidence do not apply at the penalty phase." The statute itself specified that any relevant evidence is admissible regardless of the FRE, unless "its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." 18 U.S.C. § 3593(c). The circuit reiterated its reasoning in a previous review of the defendant's case: Even though the FDPA allows more evidence to be considered in the penalty phase of a capital case, "the presumption of admissibility of relevant evidence is actually narrower under the FDPA than under the FRE." (emphasis added) The balancing test of probative value and prejudicial effect in the FDPA "is ... more stringent than its counterpart in the FRE." The FDPA requires only that the probative value be "outweighed," while FRE 403 requires that it must be "substantially outweighed"." United States v. Fell, 360 F.3d 135, 145 (2d Cir. 2004) (the constitution did not require adherence to the FRE), cert. denied, 543 U.S. 946 (2004).

According to the circuit, the trial court "appropriately concluded that, pursuant to 18 U.S.C. § 3593(c), the draft plea agreement's inclusion of the unadopted statements of the prosecutors lacked evidentiary value and that it would distract the jury from an independent assessment of the mitigating factors. In addition, admission of the draft would authorize a confusing and unproductive inquiry into incomplete plea negotiations." Viewed in this light, the trial court did not abuse its discretion to exclude the draft plea agreement.

Federal Rules of Evidence