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Univ. of South Carolina School of Law

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Friday, October 22, 2010

Heightened Everything?: Why The Fifth Circuit's "Heightened" Abuse Of Discretion Standard In Criminal Cases Isn't Really Heightened

Templeton argues that the district court abused its discretion when it admitted evidence of his prior cocaine trafficking and his 2004 arrest for cocaine possession. We review the admission of evidence under Federal Rule of Evidence 404(b) under a "heightened" abuse of discretion standard. "Evidence in criminal trials must be strictly relevant to the particular offense charged." United States v. Templeton, 2010 WL 4026122 (5th Cir. 2010).

So, what exactly does this mean? Is this "heightened" abuse of discretion standard different than the (regular) abuse of discretion standard used in civil cases? After my review of case law, my conclusion is that the answer is "no." 

In Templeton, as noted, the Fifth Circuit found that a "heightened" abuse of discretion standard applies to evidence admitted under Rule 404(b). This "heightened" abuse of discretion standard, however, does not apply only to evidence admitted under Rule 404(b) but also to evidence admitted under any rule of evidence in criminal trials. The first Fifth Circuit case to reach this conclusion was United States v. Anderson, 933 F.2d 1261 (5th Cir. 1991), in which the court held that

We apply a highly deferential standard to a trial court's evidentiary rulings and will reverse only for an abuse of discretion. Nevertheless, our review of evidentiary rulings in criminal trials is necessarily heightened. As the Supreme Court has instructed, evidence in criminal trials must be "strictly relevant to the particular offense charged." Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949).

Williams, a case decided before the adoption of the Federal Rules of Evidence, held that

Rules of evidence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. These rules rest in part on a necessity to prevent a time consuming and confusing trial of collateral issues. They were also designed to prevent tribunals concerned solely with the issue of guilt of a particular offense from being influenced to convict for that offense by evidence that the defendant had habitually engaged in other misconduct.

In other words, the language from Williams that the Fifth Circuit adopted in Anderson actually did deal with evidence admitted under Rule 404(b): character evidence. Basically, the Court was holding that even if character evidence (e.g., evidence that a defendant on trial for cracking a safe cracked a safe in the past) is somewhat relevant to the particular offense charged (e.g., to prove he knew how to crack safes), an appellate court should find error with a trial court's decision to admit it if it is not strictly relevant to the crime charged (e.g., if its admission was a waste of time or confused the jury).

If we look at the Federal Rules of Evidence, however, it is easy to see why the Fifth Circuit extended Williams' rationale to all criminal cases. Federal Rule of Evidence 401 provides that

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Relevant evidence, though, isn't automatically admissible. Instead, Federal Rule of Evidence 403 provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

In other words, for evidence to be admissible, it can't simply be somewhat (or logically) relevant; instead, it must be strictly (or legally) relevant. But here's the thing. The Federal Rules of Evidence apply in both civil and criminal actions. Thus, evidence must be strictly relevant in both civil and criminal trials. Therefore, it seems to me that the Fifth Circuit's conclusion that a "heightened" abuse of discretion standard applies to criminal trials is a meaningless vestige from the days before the adoption of the Federal Rules of Evidence. Now that Rule 403 applies in both criminal and civil cases, the standard of review should be the same in both types of cases. And, in my review of Fifth Circuit cases, I have found no difference in the abuse of discretion standard used by the court in civil and criminal cases, despite the fact that the Fifth Circuit labels the standard in the latter type of cases as a "heightened" abuse of discretion standard.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/10/404b-heightened-abuse-of-discretion-us-v-templeton-f3d-2010-wl-4026122ca52010.html

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Comments

The "heightened" review you describe does seem puzzling and, as you state, lacking in support in the federal rules. Perhaps the 5th Circuit really means that it will police relevance rulings (adverse to the defendant) more strictly in criminal cases due to constitutional rights that loom in the background of criminal, but not civil trials.

Posted by: JB | Oct 25, 2010 11:23:33 AM

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