Does FRE 403 Apply To Bench Trials?

In bench trial for abusive sexual contact of a child, rejecting the defendant’s challenge that that DNA evidence should not have been admitted as unfairly prejudicial under FRE 403; Ninth Circuit notes that “Rule 403 is inapplicable to bench trials,” in United States v. Preston, 706 F.3d 1106 (9th Cir. Feb. 5, 2013) (No. 11-10511)

Generally, the FRE "apply in" both "civil cases and proceedings" and "criminal cases and proceedings" unless certain exceptions apply. See FRE 1101(b). While the rules do not expressly address the issue, to what extent do the evidence rules apply in bench trials compared with jury trials? The Ninth Circuit recently considered this issue with regard to the unfair prejudice rule, FRE 403.

In the case, defendant Preston was charged with committing abusive sexual contact of a child. During a three-day bench trial, the court received evidence including his "confession, DNA evidence taken from [minor victim] TD’s underwear and an expert witness’s analysis of the DNA, TD’s statements to his grandmother, and the testimony of TD’s forensic interviewer and the nurse who conducted his medical examination." Preston, 706 F.3d at 1113. After his conviction, the defendant challenged the admission of the expert testimony concerning the DNA analysis among other issues.

On appeal, the defendant's challenge to the DNA testimony was based on FRE 403 and FRE 702. The Ninth Circuit summarily rejected the argument of unfair prejudice:

Preston’s assertion that the DNA evidence should have been excluded under Rule 403 depends largely on his argument that the evidence was unreliable. His argument fails. Rule 403 is inapplicable to bench trials.

Preston, 706 F.3d at 1118. The Ninth Circuit cited to two cases in support:

  • EEOC v. Farmer Bros. Co., 31 F.3d 891, 898 (9th Cir. 1994) (“in a bench trial, the risk that a verdict will be affected unfairly and substantially by the admission of irrelevant evidence is far less than in a jury trial”)
  • Schultz v. Butcher, 24 F.3d 626, 632 (4th Cir. 1994) (“Rule 403 was designed to keep evidence not germane to any issue outside the purview of the jury's consideration. For a bench trial, we are confident that the district court can hear relevant evidence, weigh its probative value and reject any improper inferences.”)

The Ninth Circuit also had little difficulty affirming the admission of the DNA expert analyst testimony under FRE 702:

The district court properly applied Rule 702 to determine whether to admit the testimony of the DNA analyst. The trial judge fulfilled his “gatekeeper” role pursuant to Daubert and allowed the expert’s testimony based on the foundation laid by the prosecutor that established the relevance and reliability of the testimony and the scientific method by which the DNA was analyzed; the DNA was subjected to a common procedure for analysis. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Preston made no objection to the expert’s testimony at trial and has failed to articulate any meaningful reason that her analysis is not reliable.

Preston, 706 F.3d at 1118. Other challenges to the DNA evidence were also unfounded.

The Preston case poses an interesting issue concerning the manner in which a trial court may compartmentalize and assess the admissibiliy of evidence that may not otherwise be permitted in a jury trial. Other cases have recognized that relaxed or more flexible standards may apply in considering evidence at a bench trial. For some examples, consider:

Past posts considering DNA evidence are available here.

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