Federal Evidence Review

In a civil rights suit against detectives for falsely arresting and maliciously prosecuting plaintiff for murdering his child, excluding on FRE 403 unfair prejudice grounds evidence offered to show plaintiff’s lack of veracity or to show defendant’s probable cause to arrest: (1) plaintiff’s statement regarding his sexual activities prior to discovery of child’s absence; (2) plaintiff wife’s statement regarding plaintiff ‘s drug usage; and (3) video of plaintiff’s confession that he murdered his daughter, in Fox v. Hayes, __ F.3d __ (7th Cir. April 07, 2010) (No. 08-3736)

FRE 403 allows for the exclusion of relevant evidence when its probative value is “substantially outweighed by the danger of unfair prejudice.” This encompasses evidence with the capacity to create powerful emotional reactions from unnecessarily graphic features. See, e.g., United States v. Pintado-Isiordia, 448 F.3d 1155, 1158 (9th Cir. 2006) (Court properly excluded under FRE 403 photo of defendant in US military uniform at his trial for illegal reentry because his service to the nation had already been shown by evidence of his enlistment contract and by expert testimony during the trial, so that only reason for defendant’s proffer of the photo was to “elicit the jury’s sympathy and patriotism.”). To a great degree, FRE 403 does not exclude a whole class of evidence, but rather excludes certain types of evidence which, under the circumstances in the case, appear as unduly sordid or salacious details.

In a recent case, the Seventh Circuit explored the exclusion of evidence as unfairly prejudicial under the FRE 403 balance with its probative value. In Fox v. Hayes, the circuit considered a civil rights trial in which the plaintiff recovered $12.2 million in damages against police officers for falsely arresting and maliciously prosecuting the plaintiff. The defense theory was that the officers had probable cause to arrest the plaintiff, whom the defendants charged had murdered his three-year old daughter. The jury rendered a verdict for the plaintiff and the defendants appealed, contending in part that the trial court improperly excluded probative evidence as unfairly prejudicial under FRE 403. In affirming the trial court, the circuit demonstrated how in addressing exclusion of evidence under FRE 403, the trial judge looks at whether and how proffered evidence can be presented to a jury to enable a party to make its proof but without the sensationalism that lend proceedings the character of a soap opera.

As described by the circuit, the case was sensational in nature and:

“evokes what is surely every parent’s most visceral fear. In the early morning hours of June 6, 2004, three-year-old Riley Fox was taken from her home in Wilmington, Illinois. She was bound with duct tape, sexually assaulted, and drowned in a creek. Riley’s parents, Kevin and Melissa Fox, claim that in the midst of their efforts to cope with this trauma, local detectives subjected them to a whole new nightmare. According to the Foxes, the defendants framed Kevin for Riley’s murder, coerced him until he agreed to a “confession” that the detectives concocted, and caused him to be jailed (and facing the death penalty) on a charge of first-degree murder. The prosecutor eventually dropped the charge after DNA testing excluded Kevin as the donor of DNA found on Riley’s body. In the meantime, Kevin spent eight months in jail, separated from his grieving wife and seven-year-old son, while his reputation in the small community where they lived was thoroughly smeared. To this day, no one else has been charged with Riley’s murder.”

Fox, __ F.3d at __.

In their appeal of the $12.2 million verdict, the defendant police officers cited three pieces of evidence that they contended had been improperly excluded. First, the trial judge excluded a statement the plaintiff made to police. He “told the officers before his arrest that he was ‘horny’ on the night of Riley’s disappearance and that he had masturbated into a condom while watching an adult video. The defendants argue that this evidence was relevant to show that Kevin had changed his story about not being able to remember what he watched that night.” Fox, __ F.3d at __.

The circuit noted that the trial judge did not preclude the defendants from making their point; the court only prevented them from delving into salacious details not pertinent to the alleged changed story told by the plaintiff. The judge “allowed them to elicit testimony that Kevin watched an adult video. That was the only fact they needed to demonstrate the supposed change [in the plaintiff’s story]. The defendants complain that without the ‘horny’ comment and masturbation details, the change in story loses its ‘dramatic’ effect. But here, ‘dramatic’ might just as well stand in for ‘prejudicial.‘” Fox, __ F.3d at __. Noting that the trial was “emotional, gut-wrenching,” the circuit affirmed the trial judge because he was “in a far better position than appellate judges to weigh the competing factors that go into a probative value versus unduly prejudicial calculus…. We cannot say the judge abused his discretion when he decided to keep these ‘dramatic’ details from the jury.” Fox, __ F.3d at __.

Similarly, the circuit affirmed the judge’s exclusion of evidence that the plaintiff’s wife told the defendant officers “on the day Riley’s body was found that Kevin had a history of lying about his cocaine use months prior to the events underlying this case.” Again, the trial judge trimmed the evidence presented to allow the defendant’s challenge to the plaintiff’s credibility, but without delving into details not pertinent to the issue. The trial judge allowed the defendants “to submit evidence that Melissa said that Kevin had a history of lying.” What the trial judge excluded was the defendants “showing that the lies were about drug use.” Fox, __ F.3d at __.

In trimming the evidence to its “core fact” necessary to the defendant’s attempt to undermine the plaintiff’s credibility, the court eliminated sordid details of drug use that were not pertinent to the case. The circuit rejected the defendant’s complaint that the trial court’s limitation of the evidence. Their desire that the evidence have a “wallop with the jury” did not overcome the court’s trimming of the evidence so that it did not “advance the (obviously prejudicial and barely probative) details.” Fox, __ F.3d at __.

The final piece of evidence restricted by the trial judge under FRE 403 involved a “videotape memorializing Kevin’s ‘confession.’ The video was the subject of repeated and prolonged side bars during which the defendants argued that it demonstrates that they had probable cause to arrest Kevin.” On appeal, the defendants argued that:

“viewing the video would have helped the jury decide whether the defendants coerced his confession and whether he was showing signs of severe distress immediately following the alleged coercion. But there are no allegations of physical harm that the video could verify, and all of the allegations of coercion stem from events leading up to the video-events that the defendants chose not to record. Most importantly, the video represents just 23 of the 870 minutes or so of Kevin’s interrogation, and thus cannot provide a complete picture of either the interrogation itself or Kevin’s level of distress. Under those circumstances, we cannot say that the court abused its discretion in concluding that the video’s prejudicial effect and potential for confusing the jury outweighed its probative value with respect to the issue of coercion or Kevin’s demeanor following the interrogation.”

Fox, __ F.3d at __.

The Fox case amply demonstrates that a focus in applying FRE 403 is not to totally exclude evidence that might provoke an emotional response by jurors. Rather the rule is designed to limit distraction from “emotional, gut-wrenching” details of minimum factual significance. This way the evidence can be used by the jury “without the ‘drama[ ]’ [that] might just as well stand in for ‘prejudicial.‘” Fox, __ F.3d at __.