“A Grieving Widow Wouldn’t Travel With a Thong”: In Biggest Evidence Ruling in Decades, the Supreme Court Agrees With My New Article and Creates a Constitutional Right to Exclude Evidence
In its most significant Evidence ruling in decades, the Supreme Court recognized a Constitutional right to exclude evidence in its per curiam opinion this week in Andrew v. White. Criminal defense attorneys now have an entirely new argument that they can make against the admission of evidence, and this new arrow in their quiver could help prevent plenty of wrongful convictions in the future.
So, let’s break this down. Federal Rule of Evidence 403 provides that
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
This is an exceedingly liberal rule of admissibility, pursuant to which evidence is presumptively admissible and only inadmissible if the opposing party can prove that the probative value of evidence is not just outweighed, but substantially outweighed by dangers such as the danger of unfair prejudice. What that meant was, until the Court’s ruling this week, there was no mechanism for a criminal defendant to prevent the admission of evidence solely on the ground that it possessed a huge danger of unfair prejudice. Why? As long as that evidence had solid probative value, the danger of unfair prejudice, though, high, would not substantially outweigh it.
This way of handling evidence at the guilt/innocence phase of trial differed from how the Court handled evidence at a capital sentencing hearing. In Payne v. Tennessee, 501 U.S. 808 (1991), while the Supreme Court found there was no per se bar against the admission of victim impact statements at a capital sentencing hearing, it added the following caveat: “In 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.”
Unfortunately for criminal defendants, courts across the country found that this principle from Payne did not extend to the guilt/phase of trial. This phenomenon led me to write the article, A Constitutional Right to Exclude Evidence, 12 Tex. A&M L. Rev. 317 (2024).
One case in particular inspired me to write the article: Andrew v. White, 62 F.4th 1299 (10th Cir. 2023). Here’s what I wrote about Andrew in the article:
Several similar examples can be found in Tenth Circuit opinions, such as Andrew v. White. In Andrew, a wife was accused of murdering her husband. At trial, the prosecution presented prejudicial evidence such as evidence connected to the wife taking a trip to Mexico with her new boyfriend after her husband died. For instance, the prosecutor brandished a thong she took on the trip “and insinuat[ed] that no true grieving widow would pack such underwear and leave for Mexico with her boyfriend.” In finding that the wife was not entitled to habeas relief, the Tenth Circuit noted that Payne dealt with the “‘factually distinct context’ of victim-impact statements” and thus did not create clearly established federal law deeming unfairly prejudicial evidence inadmissible under the Due Process Clause at the guilt/innocence phase of trial.
Notably, the Tenth Circuit also rejected the wife’s citation to Chambers v. Mississippi, which was one of the previously mentioned Supreme Court opinions regarding the right to present a defense. According to the Tenth Circuit, Chambers was inapposite because it dealt with a due process right to introduce evidence, not a right to exclude evidence. This ruling leads to the question of whether precedent on the right to introduce evidence and the right to receive evidence supports or rejects a right to exclude evidence that applies at the guilt/innocence phase of trial.
The argument in my article was simple: I argued that the Supreme Court should find that it is clearly established federal law that the Payne principle does apply at the guilt/innocence phase of trial. This would then recognize a Constitutional right to exclude evidence under the Due Process Clause if it is so unduly prejudicial that it would render the trial fundamentally unfair. Such a right would then allow defendants like the wife in Andrew to claim that “the thong argument” violated her Constitutional rights even if it satisfied the rules of evidence.
And this is exactly what the Supreme Court did this week in Andrew v. White, rejecting the State’s argument that the Payne principle applies solely in the capital sentencing context and finding that it is clearly established law that there is a Constitutional right to exclude evidence at the guilt/innocence phase of trial if it is so unduly prejudicial that it would render the trial fundamentally unfair.
This is landmark ruling that will now allow defense counsel in criminal cases to make a two-part objection to unduly prejudicial evidence at trial. Imagine that a prosecutor sees to introduce gruesome autopsy photos, evidence under the doctrine of chances that a widow accused of murdering her second husband had a first husband who died under suspicious circumstances, or even evidence that “a grieving widow wouldn’t travel with a thong.” Now the defense can raise two distinct objections:
(1) “Objection your honor, the probative value of this evidence is substantially outweighed by the danger of unfair prejudice under Rule 403; and
(2) “Objection, your honor this evidence is so unduly prejudicial under the Due Process Clause that it would render the trial fundamentally unfair.”
-CM