Federal Evidence Review

In a Fourth Amendment excessive force case, excluding parts of an internal police investigation of the charged incident in which the defendant's supervisors recommend he be terminated because of violating department use of force policy; this evidence was excludable under FRE 403 as its was "tenuously" relevant to the case but "might" incline jurors to "assign greater weight" to the evidence than it otherwise would deserve as a matter of law, in English v. District of Columbia, 643 F/3d 297 (D.C. Cir. July 1, 2011)

While courts are often asked to apply FRE 403's balance of whether the probative value of otherwise admissible evidence is "outweighed" by its possible prejudicial impacts, less often do courts discuss the matter in other than conclusory terms. This is particular so when a court assesses the likely weight of juror confusion for purposes of FRE 403. Too often, a court will provide little insight into exactly why the evidence was too likely to confuse the jury. Often, the issue is treated as a "know it when you see it" situation, not really susceptible to extensive analysis.

In a recent case, the D.C. Circuit provided some insight into how a court might appropriately address the likelihood of juror confusion. In the case, the personal representative (English) of the estate of a police shooting victim (Taft) sought Fourth Amendment civil rights violation damages stemming from the killing. The root of the plaintiff's case involved the theory that the defendant detective killed the victim while he was no longer under an "actual or threatened attack that is imminent” from the victim, violating department regulations on the use of deadly force. The plaintiff contended that for Fourth Amendment purposes, it was not "objectively reasonable" that the detective fired the shot that killed the victim after the victim had "separated himself" from the detective, shooting the victim in the back while the victim was running away from the scene of confrontation and "toward the street." English 643 F.3d at 300-01.

Before trial, upon a defense motion, the trial judge excluded an internal police investigation report that the detective's killing was "perhaps 'objectively reasonable'" under the circumstances of a shooter "still disoriented" from being chocked by the victim during their struggle. One issue was whether the defendant acted reasonably by shooting the victim once the contenders parted. However, two department administrators "disagreed" with the report and submitted recommendations to terminate the defendant for "his policy violation with respect to the use of deadly force against [victim]; a final decision on that recommendation was pending at the time of trial." English 643 F.3d at 301.

While the report was hearsay and excludable under FRE 802, it could be admitted as an FRE 801(d)(2)(D) party admission and, except for the supervisors' dissent, covered by the public records exception of FRE 803(6). Ultimately, the trial judge decided to exclude the [entire] report as inviting a "trial within a trial," confusing the jury under FRE 403's balance of probative value with prejudicial effect. While parts of the report were admitted as the door was opened to it during presentation of the case, the jury decided the case for the defendant. The plaintiff appealed the judgment of no liability, contending that the trial judge improperly excluded the whole internal report and administrator's recommendation from presentation in the case. English 643 F.3d at 301.

The D.C. Circuit affirmed the exclusion of parts of the report, as ordered by the trial judge under FRE 403. In particular, the circuit engaged in a careful balancing of the evidence's probative value against the likelihood of jury confusion. The circuit posited that even if the entire report was relevant, it was properly excluded because its probative value:

was outweighed by the likelihood of confusing the jury and unfair prejudice to the government. Although as a matter of law the alleged [use of deadly force] policy violation [which was the focus of the report] has no bearing on the Fourth Amendment analysis, it would be far less clear to a jury. One could readily imagine an argument to the jury oversimplifying the matter to suggest that the prior finding of a policy violation was inconsistent with the constitutional defense presented at trial .... Even without such prodding [from the oversimplified argument], a jury informed of the alleged policy violation and the specific finding that the attack was perceived but not real at the time of the fatal gunshot might assign greater weight to these conclusions—appearing, as they do, in an official MPD report—than the Fourth Amendment analysis allows. The district court could reasonably be concerned that this would cause “big time” confusion of the issues, and preventing such confusion would require the admission of the conclusions to be 'hedged about with jury instructions' and necessitate a 'trial within a trial about the whole District of Columbia disciplinary system.'”

The italicized phrases in the above paragraph suggest some factors that might usefully be employed in assessing the likelihood of juror confusion for FRE 403 purposes. These terms suggest that a court probe whether:

• The form of the evidence would be likely to make "a matter of law" in the case "far less clear to a jury"?
• A limiting instruction by the judge concerning the appropriate use of the disputed evidence probably restrain the jurors from confusing the legal issue? >
• Will the evidence "oversimplify" the case, so that the jury is focuses on ultimately non-dispositive issues?
• The form the evidence (even if not likely to oversimplify the case) "might" incline jurors to "assign greater weight" to the proffered evidence than it otherwise deserves as a matter of law?
• Is there a "reasonabl[e] ... concern[ ]" that the proffered evidence would cause “big time” confusion of the issues in the case?
• Will presentation of the proffered evidence lead the court to conduct a "trial within a trial" in order to provide a fair hearing to the parties?

In English the circuit concluded that these factors could underlie a decision to exclude the evidence under FRE 403. However, even had the trial court erred in this, the circuit suggested that the error would have been harmless. At trial the plaintiff did "succeed[ ] in getting substantial evidence before the jury concerning whether the detective's conduct was unreasonable. "Considering the tenuous relevance of the excluded portions" of the internal investigative Report, the circuit concluded that the plaintiff failed to "show the district court's line-drawing regarding what portions were inadmissible was an abuse of discretion." English 643 F.3d at 307 (citing Brooks v. Chrysler Corp., 786 F.2d 1191, 1198 (D.C.Cir. 1986); Maddox v. Los Angeles, 792 F.2d 1408, 1418 (9th Cir. 1986)).