Hitting On The Moonshine: Court of Appeals Of Kentucky Finds Evidence Defendant Drank Moonshine Inadmissible Under Rule 403

Like its federal counterpart, Kentucky Rule of Evidence 403 provides that

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

So, assume that a plaintiff sues a defendant for assault and seeks to present evidence that the defendant admitted to drinking "moonshine" before the alleged assault. Should the plaintiff be able to present evidence relating to the defendant's ingestion of "moonshine," or should the trial court exclude such evidence under Rule 403? According to the recent opinion of the Court of Appeals of Kentucky in Wilkerson v. Williams, 2011 WL 559218 (Ky.App. 2011), there was no problem with the trial court excluding such evidence. I disagree.

In Williams,

Nathan [Wilkerson] claim[ed] that he was punched in the face by Aaron Z. Williams at a party hosted by Aaron's father, Jeffrey L. Williams. Alcoholic drinks were served at the party. According to the Wilkersons, Aaron, who was thirty-one years of age at the time, was visibly intoxicated at the party and admitted to them that he was consuming moonshine. The Wilkersons filed suit on June 21, 2007, alleging that Aaron had committed assault and negligent assault against Nathan....[Nathan's wife] Keisha asserted a claim for loss of consortium.

At trial, the court granted the Williams's motion in limine to exclude the Wilkersons' testimony that Aaron had admitted to drinking moonshine, finding that the prejudicial effect of the word "moonshine" would outweigh any probative value. The court did, though, allow for the admission of evidence that alcohol was served and consumed at the party. The jury eventually found that Nathan had not been struck by Aaron, and the trial court entered a judgment dismissing the Wilkersons' claims with prejudice.

The Wilkersons thereafter appealed, claiming, inter alia, that the trial court erred by excluding their testimony that Aaron had admitted to drinking moonshine. The Court of Appeals of Kentucky disagreed, finding that

KRE 403 provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury[.]" "It is within the discretion of the trial court to determine whether the probative value of proffered evidence is substantially outweighed by undue prejudice."...The precise type of alcohol Aaron was consuming was not relevant to the jury's task of determining whether he struck Nathan or not. The evidence would have served only to prejudice the jury against...Jeffrey. The trial court's ruling that the moonshine testimony was more prejudicial than probative was fully in accord with KRE 403 and will not be disturbed on appeal.

I wish that the court had provided more analysis of the issue. Presumably, Jeffrey and other individuals who drank moonshine testified at trial. And presumably, they were impeached based upon their consumption of alcohol. And undoubtedly, the amount of alcohol that they drunk was relevant to their credibility. It is easy to see why the jury would discount the testimony of a witness who drank four beers in an hour more than the testimony of a witness who drank two beers in an hour.

But what about the witness who drinks moonshine? Well, I guess that could go either way. I'm guessing that some moonshine contains less alcohol than your average alcoholic beverage, but I'm betting that most moonshine contains more alcohol. Therefore, learning that Jeffery drank moonshine seems very relevant to his credibility.

Conversely, what is the unfair prejudice? Sure, making moonshine is illegal, but Jeffrey wasn't charged with the crime and the action against him didn't deal with the making of the moonshine. I thus struggle to see how the probative value of the proposed evidence was substantially outweighed by the danger of unfair prejudice.

-CM