Casey: The 403 Strategy

June 21, 2011 Casey Anthony

I am not obsessively into the Casey Anthony trial as many people are; I have my own cases to work on, but interesting evidentiary issues keep popping up. This happens in hotly contested trials like this because the lawyers are pushing every advantage. Just a small edge can win a trial. But it also can lose a trial.

I thought the video morphing Caylee’s face into the skull was way over the top and violated Rule 403, but apparently that wasn’t enough for the prosecution. Now we have the following photographs without any real purpose except to prejudice Casey Anthony in the eyes of the jurors.

The Hot Body contest:

Photo of Hot Body Contest

Did the prosecution really need a picture of this? Even if relevant, the witness could have testified to it. The only purpose of the picture is to inflame the jury, or at least the women on the jury. The men might like it.





The Tattoo:

Photo of TattooIf the tattoo said “I killed Caylee” then I can see its relevance, but “Bella Vita” (good life)?






And the coup de grace, Casey shopping:

Photo of Casey ShoppingIf she were shopping for the murder weapon, or items to cover-up the crime, it would be relevant, but just plain old shopping?

Her actions after the death are clearly relevant, but these sordid and personal details are unnecessary and over the top. The prosecutors are falling into a trap of their own making. One of the cardinal sins is to over-try the case. To inundate the jury with too many details. Many cases have been lost because of this prosecutorial syndrome. It is an easy trap to fall into. The belief is that more is better. They want to use every piece of evidence no matter how insignificant or problematic.

Trials call for strategic thinking, not a bludgeoning. The process is an organic whole, not separate parts. The lawyer has to think out all the possible reactions to his or her actions. This is strategic thinking rather than everyday planning. How will this evidence look to an appellate court? Especially if there is a death sentence? The case is a marathon not a sprint. The victory comes at the end of the process, not at the end of the first battle. At the close of all the evidence, the defense should catalog all this over-the-top evidence and argue that the cumulative effect deprives her of a fair trial. This will set up a powerful issue for the court of appeal to grapple with.

And there might be a problem even in the trial. Too much evidence gives the defense weaknesses to exploit, whether through rebuttal evidence or in argument. I would argue all this evidence trying to trash her proves the weakness of the case. Why descend into this abyss of garbage if they have a strong case built on real evidence?

The trial has descended into tabloid territory. If the defense has made explicit objections to all this evidence under Rule 403, I think any verdict may be reversed on appeal.