Federal Evidence Review

The Seventh Circuit notes in an employment discrimination case that admission of a “blow-by-blow story” of the plaintiff being “hit in the head with a sledgehammer and sustaining a broken neck” was “highly inflammatory” in light of the other evidence the plaintiff had available to show that the defendant retaliated by purposely placing the plaintiff in danger for her filing a discrimination complaint and the accidental nature of the sledgehammer incident, in Lewis v. City of Chicago Police Dept., 590 F.3d 427 (7th Cir. Dec. 21, 2009) (No. 08-2877)

FRE 403 provides a trial court with discretion to exclude relevant evidence under FRE 401 when the burden of admitting it at trial undermines the benefits it may produce in achieving a just and fair result. The concept of unfair prejudice presupposes that relevant evidence is prejudicial. The rule excludes only evidence that is unfairly prejudicial. See, e.g., United States v. Pinillos-Prieto, 419 F.3d 61, 72 (1st Cir. 2005) (“Virtually all evidence is prejudicial -- if the truth be told, that is almost always why the proponent seeks to introduce it -- but it is only unfair prejudice against which the law protects.”) (internal quotation marks and citation omitted).

Evidence that provokes a powerful emotional response in a fact finder is one type of evidence considered unfairly prejudicial. This evidence is so unnecessarily offensive, graphic, overwhelming, or outrageous that it tends to overcome reason. Perhaps as Justice Potter Stewart said of pornography, what is unfairly prejudicial is easy to recognize, but hard to define. See Jacobellis v. Ohio, 378 U.S. 184, *** (1964) (Stewart, J., concurring). As a result the appellate court must more often deal with this issue by example, rather than by pronouncement.

In a recent case, the Seventh Circuit examined one aspect of the concept of unfairly prejudicial evidence under FRE 403. This involved the need of the trial judge to consider the proffered evidence in light of all the other evidence available at trial. In the case, plaintiff Lewis claimed that she was denied promotion opportunities in the Chicago Police Department because she was a woman. The plaintiff filed a complaint with her union regarding the discrimination. As a result the plaintiff contended that she began to suffer retaliation. She noted that the department started to transfer her around, deny her special opportunities that were routinely given to other officers, and that it placed her in unsafe circumstances that other officers did not risk.

One incident that the plaintiff sought to prove at trial concerned her injury while on duty. While assigned to aid a forced entry into a residence during a drug raid, another officer accidentally struck the plaintiff in the head with a sledgehammer. The accident fractured her neck, almost paralyzing her so that she had difficulty returning to work. Even though her treating doctor did not find her ready for duty, the plaintiff claimed that the department contended she was ready for full duty as part of the effort to retaliate against her and insisted she work despite her fractured neck. Lewis, 590 F.3d at 441.

At trial of the plaintiff's claim of gender discrimination and retaliation, the trial judge excluded the evidence of the sledge hammer incident. The judge decided to exclude the evidence under FRE 403 “finding that the probative value of the testimony was substantially outweighed by the danger of unfair prejudice.” Lewis, 590 F.3d at 441. The jury decided for the defendant and the plaintiff appealed contending that the exclusion of the sledgehammer incident was improper.

The Seventh Circuit affirmed the exclusion of the sledge hammer incident. After noting that the judge was entitled to “a special degree of deference when deciding whether evidence is unfairly prejudicial under Rule 403,” the circuit emphasized that it would be “a rare case where appellate courts will second-guess the judgment of the person on the spot, the trial judge” in deciding that evidence was unfairly prejudicial in relation to its probative value. Lewis, 590 F.3d at 441.

The circuit identified the purpose for the evidence was to “convince the jury that the … incident showed” that the defendant “was purposely placing her in precarious situations in retaliation for her filing the discrimination complaint.” The circuit did not examine the trial court’s judgment that the sledge hammer incident was inflammatory. Rather, the Seventh Circuit probed whether the judge had “allowed” the plaintiff “to present evidence on that point” of retaliation “in various [other] ways” than the inflammatory incident.

In the plaintiff’s case, the circuit noted that the judge had allowed the plaintiff to pursue the issue of retaliation by evidence that the department placed the plaintiff in dangerous situations. The trial judge allowed the plaintiff to:

“offer[ ] evidence that she was assigned to investigate a citizen's complaint by herself; that she was assigned to a ‘shots fired’ call; that she was quickly transferred from partner to partner so that she couldn't establish a safe working relationship with any of them; and by diverting her from an in-progress burglary to a more dangerous assignment on March 13.”

Lewis, 590 F.3d at 441.

By allowing the plaintiff to pursue her contention with “an abundance of evidence to support her claim that she was retaliated against by being given more dangerous assignments,” the trial court acted within its discretion. The trial judge “simply [did] not allow [ plaintiff] to present highly prejudicial testimony concerning the fact that during one of those assignments, she was accidentally injured.” Lewis, 590 F.3d at 441. According to the circuit:

“We agree with the judge's assessment that the blow-by-blow story of the [sledge hammer] incident-involving being accidentally hit in the head with a sledge hammer and sustaining a broken neck-was ‘highly inflammatory.’ Evidence is unfairly prejudicial, ‘if it will induce the jury to decide the case on an improper basis, commonly an emotional one, rather than on the evidence presented.’ The district judge fairly weighed the probative value of that evidence against the danger of unfair prejudice and correctly decided to exclude it. That determination was not an abuse of discretion."

Lewis, 590 F.3d at 441 (citing United States v. Zahursky, 580 F.3d 515, 525 (7th Cir. 2009)).

Although not directly stated by the circuit in Lewis, the result shows the extent to which FRE 403 involves a trial court’s sense of proportion. For the circuit, the balance the trial judge struck between what could be proved by the evidence was not worth the risk it could create that the factfinder would decide the case from an emotional reaction. Part of this balance is to assess, as did the trial judge in Lewis, whether the proof can be made adequately without use of the evidence that could be unfairly prejudicial. Whether the challenged evidence is essential to prove a point is an important consideration and the more able a party’s is of showing proving their point without use of inflammatory evidence, the less compelling is the ground for admitting it.

If a party has adequate evidence absent the inflammatory evidence to support a finding on an element to be proved, or if there are other ways in which to prove the contention absent the inflammatory evidence, the probative value of the evidence falls in comparison to its prejudicial risks. For another recent example of this principle, consider United States v. Siegel, 536 F.3d 306, 319-20 (4th Cir. 2008) (in murder case, court erred in excluding proof of prior fraud as evidence of theory that the defendant committed fraudulent acts to obtain gambling money because the trial court failed to consider the “importance of the evidence to the government's case” and it failed to assess as well “whether there was other evidence” that could prove motive for murder).