Federal Evidence Review

Tenth Circuit concludes that the “wholesale exclusion of all evidence relating to seventeen of the eighteen allegations” in one count interfered with prosecutorial discretion and required reversal, in United States v. Schneider, 594 F.3d 1219 (10th Cir. Feb. 8, 2010) (Nos. 09-3028, 09-3045)

Generally, the trial court has a fair amount of discretion in excluding evidence as unfairly prejudicial under FRE 403. However, a recent Tenth Circuit case noted that there are constitutional limits to excluding evidence under FRE 403 in a criminal case.

In the case, the defendants, a doctor of osteopathy and a licensed practical nurse operating a clinic, who were husband and wife, were charged with dispensing controlled drugs resulting in the deaths of several patients. One of the thirty-four counts alleged that the distribution of drugs resulted in the death of 18 patients. One week before trial, the court, sua sponte, limited the government’s evidence of patient death under FRE 403 to four named patients, one patient listed in Counts 2, 3, and 4, and only one of the 18 patients listed in Count. The prosecutor immediately expressed concern that Count 5, which listed 18 patients, was effectively dismissed by the exclusion of evidence:

“Prosecutor: Excuse me. Based on that ruling, Judge, you’ve essentially dismissed Count 5 of the Indictment.

The Court: Then it’s dismissed.

Prosecutor: Well, Judge, I don’t believe you have a basis to dismiss Count 5 and we would probably have to take an interlocutory appeal on that.

The Court: Well you go right ahead and do that. But this case starts next Monday. And if you take an interlocutory appeal, you better be counting on winning it because this case is going to be tried the way I say it’s going to be tried. And I would rethink that if I were you. And you better have your boss down here to talk to me about it.”

Schneider, 594 F.3d at 1222. Shortly afterwards, the court added:

“The Court: Let me go back for a minute to the Government’s threat – which I consider a threat, and nobody threatens me in this courtroom – to take an interlocutory appeal. I will allow on Count 5 the government to prove the charge regarding [the first named individual]. As to the other deaths in count 5, I find under Rule 403 that the probative value is substantially outweighed by confusion of issues, misleading the jury, and considerations of delay, waste of time and also presentation of cumulative evidence.”

Schneider, 594 F.3d at 1222-23. The prosecutor noted the ruling may impact the expert testimony which was based on a review of more than 100 files. The trial court noted from the bench that the opinion would have to be limited to the four deaths permitted by the court’s ruling. Two days later, the trial court issued an order, stating:

“The court finds under Rule 403(b), that the probative value of the evidence of over sixty deaths is substantially outweighed by confusion of issues and the potential to mislead the jury. Moreover, the evidence of the large number of deaths will certainly cause delay and result in a needless presentation of cumulative evidence. The government may present evidence of the three charged deaths in counts 2, 3 and 4. The government may also present evidence of [the first named individual]’s death in order to prove the allegations in count 5.”

Schneider, 594 F.3d at 1223. The government filed an interlocutory appeal on the exclusion of the evidence, contending that the ruling interfered with its discretion in charging and prosecuting the case.

The Tenth Circuit reversed the trial court exclusion of evidence. The circuit framed the issue as “whether the district court’s ruling was, in essence, a dismissal of ‘any one or more counts, or any part thereof,’ or whether it merely excluded cumulative or prejudicial evidence.” Schneider, 594 F.3d at 1224 (citation omitted). As the circuit explained:

“While the government’s reasons for naming one patient each in Counts 2, 3 and 4, but eighteen individuals in Count 5 remains somewhat of a mystery, we do not second-guess the government’s permissible choice. The court’s ruling effectively dismissed separately charged conduct brought by the government against these defendants. In this way, the district court’s order impermissibly intruded upon the
authority of the executive branch to design a criminal prosecution in the way it deems most prudent. This is not to say the trial court may not exclude some of this evidence at trial under Rule 403. The power of district courts to manage their dockets is deeply ingrained in our jurisprudence. But such restrictions may be imposed only when they do not foreclose the government from fairly presenting its case.”

“The district court erred in its wholesale exclusion of all evidence relating to seventeen of the eighteen allegations in Count 5.6 It is the government’s decision, subject to constitutional protections, whether to charge these allegations in a single count rather than individually. A trial court’s case management may not interfere with the government’s ability to prosecute criminal activity any more than it can intrude upon a defendant’s opportunity to defend.”

Schneider, 594 F.3d at 1227 (footnote and citations omitted).

The circuit also rejected the defense claim that evidence about the death of more than twenty patients would create “a substantial risk that the passion of the jury will be so inflamed that the jury will be unable to engage in a rational analysis of the evidence.” Schneider, 594 F.3d at 1227 (quoting defendants’ appeal brief). The circuit noted that the evidence was not “collateral activity or prior bad acts” and while “certainly prejudicial, it is not unfairly prejudicial.” Schneider, 594 F.3d at 1227.

The circuit dismissed the defense argument that since one patient was left in Count 5 (after 17 others were excluded), the count was not dismissed entirely and merely a limitation on evidence was imposed. The circuit noted that under an amendment to the statute (18 U.S.C. § 3731) allowing a government interlocutory appeal, the government may “appeal from the dismissal of ‘any portion’ of a count.”

Finally, the circuit expressed concern that the parties had indicated eight weeks were necessary to try the case and the trial court only allowed each party ten days each to present their case in chief. While the trial court could establish reasonable time limits for trial, the record should indicate the basis for the time limitation. The record before the circuit lacked an explanation why the trial court “imposed the limitation and did not address how it would consider time spent on motions, bench conferences and other matters.”

The Schneider case presents unusual facts but underscores the ability of a party (here, the government) to prove the allegations for the charges. In a criminal case, the exclusion of evidence at some point, as here, may interfere with the ability of the government to present its case.