The 403 Balancing Test

June 13, 2011 Casey Anthony

This weekend I wrote a piece on the Casey Anthony prosecutors using an animated video which opened with Caylee as a beatific child and then slowly morphed her face into the skull found in the woods. An ugly and brutal exhibit. One which, in my opinion, did not belong in the trial. If the prosecution had a strong case against her, they didn’t need to stoop this low.  However, this piece of evidence is the type I love to use in my law school class. As they say, it is a teaching moment.

Florida’s Rule 403 is almost identical to the federal rule. The Florida rules provides: “Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”

The rule requires the trial court to conduct a balancing test. First the evidence must meet the definition in FRE 401 as relevant. Then the court must assess its probative value. It may be relevant but of little probative value. Meaning its importance in proving a material issue is not great. Then the court must decide if the prejudice is unfair. Mere prejudice, or high prejudice is not enough. It must be unfair. In this context, that means it has the potential of causing the jury to decide the case on an emotional basis rather than on the evidence. For example if a person is charged with theft and the prosecution sought to introduce evidence he molested a child. Or that he was an atheist. Or even worse a New York Jets fan. All those could cause a verdict based on passion rather than fact. And despite what laymen think of lawyers, we do seek to present facts rather than outrage in a trial.

Then the court must do the balancing test. Does the unfair prejudice substantially outweigh the probative value? This is the most stringent balancing test in the rules. There are several other such tests, but not with such a high bar. The “substantially outweighs” burden is placed squarely on the defense. They must establish that the ugliness is far greater than the prosecution needs in order to win exclusion.

What I like about this rule is that it puts a premium on the skill and preparation of the trial lawyer. This is an issue that must be thought out long before the trial. This is not a last minute objection. There are several different tactics that can be employed. The defense could file a motion in limine (meaning prior to the trial) seeking exclusion. This allows an objection to be heard before it is mentioned by the prosecution in the presence of the jury and gives the court time to consider the legal issue without the press of time of a trial. But the down side is that it gives the prosecution time to prepare as well. You are telling them your arguments and that allows your enemy time to prepare a response. A general doesn’t send his battle strategy to the enemy.

On the other hand, you can wait until the prosecution seeks admission into evidence. Then orally object and hand a detailed memo of law to the judge setting forth the case law and your reasoning. You may catch them unprepared. As I like to say, we are all morons off the top of our heads. This difficult issue requires preparation and thought. They will not have the legal research ready. Nor will they have thought this out unless they also understand this strategy and were prepared with a counter-strategy. Possible, but not probable.

Once the matter is before the judge, then advocacy can win the day. The rule is not clear cut. It is not self-executing. This is not like a final exam with a definitive answer. It could go either way. The better prepared lawyer can win this argument. For example I presented the defense argument in my prior post. But the prosecution can mount a good argument as well.

If I were the prosecutor, I would argue that the defense in their opening statement claimed Caylee’s death was an accident. Thus I have to disprove that. I can do so by showing that the duct tape had to be over her mouth before her body started decomposing. This tends to prove it was a homicide rather than an accident. The video shows how the tape could have been positioned based on where it ended up and how the lower jaw was positioned on the skull. This is a decent argument and one the court would have to consider. It has some probative value and the final decision will be based on whether the ugliness of Caylee’s picture substantially outweighs this need.

If I were the judge, I would tell the state I intend to sustain the objection. However I would give the prosecution leave to redo the exhibit and not use the picture of Caylee and Casey hugging and smiling. The issue is relevant but it has to be done in a more scientific rather than emotional manner. Use a sketch or a different picture of Caylee’s face.

Once again, whoever has the best argument here can win. It requires marshaling all the evidence on this point, presenting any similar appellate court decisions, and using the words in the rule. This is why I love evidentiary issues like this. They teach the importance of preparation and advocacy by the trial lawyer.