Federal Evidence Review

In boating accident suit, no error in excluding as unfairly prejudicial" items salvaged from" the plaintiff's boat showing “two women ... on a boat with their bikini tops off" and "holding a bottle" of an allegedly alcoholic beverage, as unfairly prejudicial, citing factors that might have undermined the photographs' authenticity, in Littleton v. McNeely, 562 F.3d 880 (8th Cir. April 9, 2009) (No. 07-3478)

"Real proof often has enormous apparent probative force because the lay trier may lose sight of the fact that its connection to a party may depend upon the credibility of an authenticating witness,” noted Weinstein's Evidence in its assessment of authentication. J. Weinstein and M. Berger, Weinstein's Evidence, 901(a)[01], at 901-19 (1983). A recent case in the Eighth Circuit illustrates some of the wisdom in the treatise's observation that the same factors that might render evidence unfairly prejudicial under FRE 403 may be the same factors that could render evidence not capable of authentication.

In the case, plaintiff Littleton was driving Smedly's 19-1/2-foot 1993 Crownline boat on the Lake of the Ozarks. Their wives joined them on board and as night fell, Littleton stopped the boat because he became lost. Suddenly, the boat capsized when it was hit by a 26-foot Formula Thunderbird, driven by McNeely. McNeely called 911 for assistance and helped remove the Littletons and Smedleys out of the water. The Littletons filed a negligence action against McNeely in state court, which was removed to federal court, including a counterclaim for contributory negligence. The jury determined Littleton was 55% at fault and McNeely was 45% at fault. The defendant appealed contending the trial court erred by "excluding from evidence certain photos salvaged from a camera in Robert Smedley's boat which McNeely claims depict the Smedleys and Littletons drinking." Littleton, 562 at 888.

The Eighth Circuit affirmed the exclusion of the photograph. The circuit questioned the relevance because:

"The photos do not depict anyone actually drinking anything, and it is unclear whether the photos even depict Gerri Littleton holding an alcoholic beverage. Several of the photos show a woman holding a bottle covered in a green holder, and another photo shows a different woman holding a bottle largely obscured by her hand. The court assumes the women in these photos are Gerri Littleton and Lisa Smedley, but McNeely has not identified for this court which woman is Gerri Littleton and which is Lisa Smedley. The photos do not reveal whether the bottles contain alcoholic or non-alcoholic beverages. Even if the photos did show Gerri Littleton drinking alcohol, we fail to see how that fact would have had any significant impact on the verdict. McNeely never claimed Gerri Littleton was the operator of the boat or that her alleged alcohol consumption contributed to the collision in any way."

As important, explained the circuit, was the inability of the defendant to tie the photographs to the alleged events of the day of the accident. In this connection, the circuit noted that "there is no date stamp on the photos, and McNeely offered no evidence to establish whether the photos were taken on the day of the collision or another day that weekend. It is also unclear whether the photos were taken at Party Cove or some other location on the water." Littleton, 562 at 888. Despite citing these reasons why the defendant was unable to show that the photographs were what the defendant purported them to be, the circuit did not discuss their authentication under FRE 901.

Rather, the circuit affirmed exclusion of the evidence on the basis of FRE 403:

"The photos ... provide a potentially prejudicial depiction of two women, presumably Gerri Littleton and Lisa Smedley, on a boat with their bikini tops off. The photos also contain other images of unknown women with their tops off. It is readily apparent jurors might consider such conduct lewd, offensive, or immoral. If these photos had any probative value at all-and we see none-the district court certainly did not abuse its discretion by determining any minor probative value was far outweighed by the potential for prejudice resulting from the jury's disapproval of the photos."

Although the circuit did not specifically address authentication, the circuit clearly cited factors related to the authentication of the photographs in its assessment of whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. The case demonstrates that in making a FRE 403 assessment, weaknesses in authentication of the evidence may also serve as persuasive factors in the balance of the probative value of relevant evidence under FRE 401 with the risk of unfair prejudice, under FRE 403.