Federal Evidence Review

Exclusion of evidence that another person committed the offense did not violate the defendant’s constitutional due process rights where its probative value was substantially outweighed by the danger of jury confusion, on state habeas review, in Miller v. Brunsman, 599 F.3d 517 (6th Cir. March 24, 2010) (No. 09-3151)

Virtually all evidence proffered in federal court is tested under the balance required by FRE 403. Under this balance, the trial judge considers whether the probative value of relevant evidence is substantially outweighed by its unfair prejudice. This standard has applied long before adoption of the FRE, and is used in federal and state courts. How does this balancing standard comport with the federal constitution’s guarantee of the right to present a defense? A recent Sixth Circuit case highlighted some of the basics for assessing the authority for exclusion of relevant evidence consistent with the Constitution.

In the case, petitioner Miller was convicted in state court of aggravated murder and aggravated robbery of victim Brown. During his state trial, the court excluded evidence that Miller proffered to show that a third person, Guenther, had been the perpetrator of the crimes. The trial judge excluded the proffered evidence of Guenther’s possible involvement pursuant to state evidence rule 403(A), which replicates FRE 403. As explained by the trial judge:

“The fact that there were other suspects and that the defense wants to present evidence of other suspects that the police developed, and who were eventually cleared, to me, is either not relevant or even minimally relevant [, and] is excluded by Evidence Rule 403(A).”

Miller, 599 F.3d at 523. The jury convicted the defendant and his direct review through the state courts was unavailing. The state appellate courts found that the trial judge did not abuse his discretion in excluding the other perpetrator evidence as unduly prejudicial. The defendant sought a writ of habeas corpus in federal court. The federal court denied the petition, finding that the state courts’ exclusion of the evidence was not:

“an unreasonable determination of the facts in light of the evidence presented…. Many of the ‘facts’ suggestive of Guenther’s guilt are not in any way specific to the crime in question (e.g., motive, drug addiction, presence in Hamilton, Ohio, at the relevant time period, possession of a knife with threats to use it).... Many of the facts are not of evidentiary quality and really consist of leads in police investigations which proved not to be accurate.”

Miller, 599 F.3d at 524.

The Sixth Circuit affirmed denial of the writ, relying on Holmes v. South Carolina, 547 U.S. 319 (2006). In Holmes, a South Carolina jury found the defendant guilty of murder and sexual offenses. The defendant was sentenced to death after a trial in which the prosecutor relied on forensic evidence, including the defendant’s palm print, clothes fibers, and DNA analysis. In addition, one witness testified that he had seen the defendant in the area of the crime close to the time it occurred. Holmes, 547 U.S. at 321-22.

The defense focused on the soundness of this forensic evidence. It probed whether law enforcement agents had contaminated much of the evidence. In addition, defense experts testified that the police procedures used in the investigation of the defendant mishandled the DNA evidence and the fingerprint evidence. A major part of the defense involved defendant Holmes’ proffer of evidence that another individual committed the charged murder. This evidence consisted of witnesses who testified at Holmes’ pretrial hearing to the effect that this third party had confessed to the killing. The trial judge excluded this evidence, reasoning that it was inadmissible because it only created a bare suspicion that this third party was guilty of the crime. In the defendant’s direct appeal, the state Supreme Court affirmed. Where there was strong evidence of a party’s guilt, concluded the state court, any defense evidence that a third party allegedly committed the crime cannot create a reasonable inference as to the defendant’s own innocence. Holmes, 547 U.S. at 324.

In Holmes, Justice Samuel A. Alito, Jr., writing for a unanimous Supreme Court, granted the writ of habeas corpus. Justice Alito explained that the South Carolina Supreme Court applied a rule that was too broadly focused on the strength of the prosecution’s case. Under the rule, once a trial court viewed the prosecution’s case as strong, any evidence of third-party guilt was excluded – even when the third party evidence might have great probative value and not raise a risk of harassment or confusion of the issues. Holmes, 547 U.S. at 329. As noted by Justice Alito:

“While the Constitution … prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. See, e.g., Fed. Rule Evid. 403…. Plainly referring to rules of this type, we have stated that the Constitution permits judges ‘to exclude evidence that is ‘repetitive …, only marginally relevant’ or poses an undue risk of ‘harassment, prejudice, [or] confusion of the issues.’”

Holmes, 547 U.S. at 326-27 (citations omitted).

In Miller however, the principles of Holmes led to a different result, affirming the denial of habeas corpus:

“In Holmes, the United States Supreme Court expressly recognized that ‘well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.’ The Court cited, as an example, Federal Rule of Evidence 403. And the Court noted that a ‘specific application of this principle is found in rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged.’ The Court then quoted, in a parenthetical, this excerpt from American Jurisprudence: ‘[T]he accused may introduce any legal evidence tending to prove that another person may have committed the crime with which the defendant is charged…. [Such evidence] may be excluded where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant’s trial.‘40A Am.Jur.2d Homicide § 286 (1999). Thus the state courts’ weighing of the probative value of the Guenther evidence against its tendency to confuse the issues or mislead the jury was entirely consistent with United States Supreme Court precedent. So too was the exclusion of the evidence on the ground that it failed to show a sufficient nexus between Guenther and the murder.”

Miller, 599 F.3d at 526 (quoting Holmes, 547 U.S. at 326-27)

In addition, the circuit explained, “assuming, as Miller suggests, that the State’s case against him provided only weak support for a guilty verdict, that fact would not strengthen Guenther’s connection to the murder, nor would it render the proffered evidence admissible.” Accordingly, the decision of the state courts’ to exclude the other perpetrator evidence “was not an unreasonable application of clearly established federal law,” so that the defendant was not entitled to habeas relief. Miller, 599 F.3d at 526.

The Miller case provides a particularly robust application of the principles the Supreme Court assessed in Holmes. Holmes has been identified by FederalEvidence.com as a Key Supreme Court Evidence Case. Other circuits have applied Holmes as well. See, e.g., Moses v. Payne, 555 F.3d 742, 757-58 (9th Cir. 2009) (No. 07-35468) (Affirming district court denial of habeas relief to a state prisoner who contended that admission of a victim’s hearsay statement to doctor violated clearly established federal law; the Circuit noted that Holmes disapproved “evidentiary rules … [that] by their terms, required the trial court to exclude crucial evidence that had a critical effect on the trial, with little or no rational justification. In general, the rules precluded a defendant from testifying, excluded testimony from key percipient witnesses, or excluded the introduction of all evidence relating to a crucial defense.”).