Supreme Court Watch: Trial Court's Essential Role In FRE 401/403 Relevance Determinations

Recent Supreme Court decision underscores district court’s essential role in determining FRE 401/403 issues, in Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 128 S.Ct. 1140 (2008).

During the last Term, one Supreme Court decision emphasized the central role of the district court in determining relevancy and unfair prejudice issues in particular, and evidence issues in general.

In Sprint/United Management Co. v. Mendelsohn,, plaintiff Mendelsohn claimed that her termination, during a company-wide reduction in force, was the result of age discrimination. The case raised the issue of the admissibility of so-called “me too” discrimination evidence, which includes alleged discrimination involving other employees who are not a party to the suit. In the age discrimination action, before trial, the employer moved in limine to exclude the testimony of five employees who also claimed age discrimination but did not work in the same group or with the plaintiff, and did not work under the supervisors she reported to, and did not hear her supervisors make discriminatory remarks, as irrelevant under FRE 401, and unfairly prejudicial under FRE 403. In a minute order, the trial court excluded evidence of “discrimination against employees not similarly situated to plaintiff.” The Tenth Circuit reversed after construing the trial court’s minute order as employing a per se rule “that evidence from employees with other supervisors is irrelevant to proving discrimination in an ADEA case.” The circuit then proceeded to consider the admissibility of the excluded evidence and determined that the proffered testimony was relevant and not unfairly prejudicial. A new trial was ordered.

Many employment lawyers queried whether the Supreme Court would use the case to answer the issue whether an age discrimination plaintiff “may be categorically barred from introducing evidence that other employees were subjected to age discrimination by a supervisor other than the supervisor who made the decision challenged by the plaintiff.” Brief For The United States As Amicus Curiae, at I.

The Supreme Court, in a unanimous opinion written by Justice Thomas, held that there was no per se rule to exclude or admit this evidence, which is based on the facts of the case. The Court underscored the role of trial courts in making these FRE 401/FRE 403 rulings and concluded that the circuit erred in conducting its own analysis without remanding the issue to the trial court. The Court emphasized that an abuse of discretion standard applies to these determinations, and the trial court should not be reversed absent an abuse of discretion.

Justice Thomas underscored the superior vantage of trial court to resolve relevancy and unfair prejudice issues and role in doing so:

“[Q]uestions of relevance and prejudice are for the District Court to determine in the first instance. Rather than assess the relevance of the evidence itself and conduct its own balancing of its probative value and potential prejudicial effect, the Court of Appeals should have allowed the District Court to make these determinations in the first instance, explicitly and on the record. With respect to evidentiary questions in general and Rule 403 in particular, a district court virtually always is in the better position to assess the admissibility of the evidence in the context of the particular case before it.

… “Relevance and prejudice under Rules 401 and 403 are determined in the context of the facts and arguments in a particular case, and thus are generally not amenable to broad per se rules. See Advisory Committee’s Notes on Fed. Rule Evid. 401, 28 U. S. C. App., p. 864 (“Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case”).

… “An appellate court should not presume that a district court intended an incorrect legal result when the order is equally susceptible of a correct reading, particularly when the applicable standard of review is deferential…. When a district court’s language is ambiguous, as it was here, it is improper for the court of appeals to presume that the lower court reached an incorrect legal conclusion. A remand directing the district court to clarify its order is generally permissible and would have been the better approach in this case.”
Sprint/United Management, 128 S.Ct. at 1146 (citations and footnote omitted).

Two primary lessons follow from the case. First, as always, parties should be vigilant in creating a good record on relevancy, unfair evidence and other evidence issues before the trial court. Second, where the record is uncertain concerning the basis for the trial court’s rules (as with the minute order in Sprint/United Management), the circuit should not decide these issues but should remand the case to the trial court to determine in the first instance.

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