In the absence of any record of a FRE 403 balancing, appellate court confronted evidence issue for the first time on appeal, in United States v. Boulware, 384 F.3d 794, 805 (9th Cir. 2004)
Normally, an appellate court affords due deference to trial court rulings under FRE 403. The Supreme Court recently highlighted this principle, we noted on July 31, in Sprint/United Management Co. v. Mendelsohn,_ U.S. _, 128 S.Ct. 1140, 1146 (2008) (applying abuse of discretion standard to rulings under FRE 401 and FRE 403; “With respect to evidentiary questions in general and Rule 403 in particular, a district court virtually always is in the better position to assess the admissibility of the evidence in the context of the particular case before it.”). How much deference is due when the trial court fails to create a proper record? This issue, which periodically arises, was noted by the Ninth Circuit in a tax prosecution.
In Boulware, the defense tried to introduce a state court civil judgment to show the defendant had not gifted certain funds to another and that the funds belonged to a corporation. The trial court excluded the judgment as irrelevant, under FRE 401 and 402. Consequently, the trial court did not engage in any FRE 403 balancing analysis. Even though the state court judgment did not have preclusive effect in calculating of federal estate tax calculation, the trial court granted a motion in limine and excluded the state court judgment. The defendant was convicted for filing false tax returns.
On appeal, a majority panel first concluded the state court judgment was relevant, contrary to the trial court ruling. The successful state court judgment that forced another person to return the funds to a corporation had “some tendency to make it more likely that he gave the monies to her to hold in trust.” Boulware, 384 F.3d at 805. This ruling required the majority to determine whether the state court judgment could be excluded under FRE 403. On the standard of review, the opinion noted:
“The district court, however, did not perform a Rule 403 balancing analysis; rather, it simply held that the evidence was “not relevant to the ultimate issues of the case” and granted the government’s motion to exclude the judgment “pursuant to Rules 401 and 402 of the Federal Rules of Evidence.” We therefore review de novo, rather than for abuse of discretion, whether the judgment was properly excludable under Rule 403.”Id., at 808 n.6. On the merits, the majority concluded the state court judgment would not have posed problems under FRE 403 with an appropriate limiting instruction and the trial court’s ability to control the evidence, including cross-examination. Id., at 808. The Boulware case is one example which notes the importance of the record which is created for review on appeal. At trial, admittedly it was difficult to create a record since the trial court excluded the evidence on an alternative basis. However, without the benefit of a record, the reviewing court could consider the admissibility de novo, without any deference to a trial court ruling. In most cases, the parties have an opportunity to establish a record for appeal by requesting the court to indicate its ruling and any findings.
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