EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, January 29, 2025

A Roadmap for Criminal Defense Attorneys to Object Using the New Constitutional Right to Exclude Evidence

A few days ago, I posted about the Supreme Court's landmark opinion last week in Andrew v. White, which recognized a Constitutional right to exclude evidence. Specifically, the Supreme Court concluded that it is clearly established federal law that the principle from Payne v. Tennessee, 501 U.S. 808 (1991) applies at the guilt/innocence phase of trial. That Payne principle provides that, "[i]n the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief."

I argued in my new article, A Constitutional Right to Exclude Evidence, that the Supreme Court's opinion in Andrew now allows criminal defense attorneys to argue that evidence that satisfies the Rule 403 balancing test is still inadmissible under the Due Process Clause. Specifically, Rule 403 provides that a judge may exclude relevant evidence only if its probative value is substantially outweighed by the danger of unfair prejudice. The thesis of my article is that defense counsel can now contend that even evidence that satisfies this Rule 403 balancing test (medium/high probative value vs. high unfair prejudice) violates the Due Process Clause under the Payne principle.

This thesis has led to discussion in the Evidence professor Listserv about whether "unfair prejudice" in the Rule 403 balancing test is the same as "unfair prejudice" in the Payne principle. I don't think it is, and I believe that one of the cases I cited in my article provides the roadmap for how criminal defense attorneys should use the Supreme Court's opinion in Andrew.

In my article, here is what I wrote about the opinion of the United States District Court for the District of Massachusetts in United States v. Sampson, 335 F. Supp. 2d 166, 191 (D. Mass. 2004).

In the wake of the Supreme Court’s ruling in Payne, courts have applied Payne’s due process test to grant relief in response to direct appeals and petitions for writs of habeas corpus regarding victim impact statements as well as other types of evidence and arguments introduced at sentencing hearings. For example, in United States v. Sampson, the prosecution introduced a victim impact video that was 27 minutes long, featured over 200 still photographs of the victim, and was set to music from the Beatles and James Taylor. The United States District Court for the District of Massachusetts applied the test from Payne to find that the video violated the Due Process Clause because “the videotape’s images would have inflamed the passion and sympathy of the jury.”

In reaching this conclusion, the court distinguished between the type of analysis done under Rule 403 and the type of analysis done under the Payne principle:

In this case, the court recognized that there are two checks on potentially unfairly prejudicial victim impact evidence, and indeed on all evidence at trial. The first check is the trial court's statutory responsibility, see 18 U.S.C. § 3593(c), to decide if the probative value of a particular piece of evidence is outweighed by the danger of unfair prejudice, in the form of inflaming the jury's passions and thus promoting the "risk [of] a verdict impermissibly based on passion, not deliberation." Payne, 501 U.S. at 836 (Souter, J., concurring).

The second check is the responsibility of the court to secure the defendant's right to due process by viewing the proffered evidence in the context of all the other evidence in the case and deciding if its admission would contribute to or detract from a trial that is fundamentally fair and allows jurors to base their decisions on reason and reliable evidence rather than passion. Id.

I think this captures the difference between the two tests really well. The analysis under Rule 403 is more of a microanalysis, focusing upon the probative value and unfair prejudice of a particular piece of evidence (not that Rule 403 totally ignores the bigger picture). On the other hand, the analysis under the Payne principle is more of a macroanalysis, focusing upon the big picture of the prosecution's case and whether a particular line of argument would render the whole trial fundamentally unfair.

What does that mean in practice? Let's look again at Andrew. In that case, the prosecution claimed that the defendant killed her husband because she was a "black widow," with no grieving widow traveling with a thong and her new boyfriend in the wake of her husband's death. As a professor noted on the Listserv, this evidence/argument likely should have been deemed inadmissible under Rule 403 because it was lacking in probative value.

But, in my article, I also cite to the case of Pam Lanier that we covered on the Undisclosed podcast. Pam Lanier was charged with murdering her second husband Dorian through arsenic poisoning, and the trial judge allowed the prosecution to introduce evidence under the doctrine of chanced that Pam's first husband died under suspicious circumstances (drowning while checking crab pots in the intracoastal waterway). As much as I disagree with the court's ruling allowing the prosecution to portray Pam as a "black widow," courts consistently find that evidence offered under the doctrine of chances is admissible under Rules 404(b) and 403. But, under Andrew and the Payne principle, the defense would have a good argument that this line of evidence/argument would render her trial fundamentally unfair (in a similar way as in the Andrew case). And this, in turn, could prevent wrongful convictions like the one I believe occurred in the Pam Lanier case, with expert evidence now showing it was likely Dorian's self-ingestion of a turkey medication with high arsenic content as a hangover remedy that likely caused his death.

-CM

https://lawprofessors.typepad.com/evidenceprof/2025/01/a-few-days-ago-i-posted-about-the-supreme-courts-landmark-opinion-last-week-in-andrew-v-white-which-recognized-a-constitut.html

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