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Old 02-25-2020, 02:36 PM
chargerrich is offline
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Help Me Better Understand "Prejudicial Evidence"


While I understand - from a legal perspective - that allowing certain evidence in a trial would be considered prejudicial and therefore not allowed, my real question is why is this evidence excluded if it is in fact material to the case and factual.

For example, I was reading about the case officer Ray Tensing and his involvement in the shooting of Samuel DeBose in 2015. It was determined during a retrial (after a deadlock mistrial) that an undershirt worn by the officer that day depicted a Confederate Battle Flag would not be allowed because it would be prejudicial.

Now, I can certainly understand that it would - in fact - be prejudicial. However why would a FACT surrounding the character of an officer not be relevant to this case where a white officer shot and killed a black man during a traffic stop?

The officer:
- Chose to own a shirt with a confederate flag
- Chose to wear a shirt with an obvious racial bias
- Chose to actually wear this shirt with a clearly understood bias AT HIS CHOSEN PROFESSION

Does this not speak to his character in the same way character testimoney is used at trials? We often see a myriad of other evidence used in trials, i could easily posit that a not insignificant amount of ALL evidence is in some way prejudicial.

For the record, i am generally VERY pro law enforcement, but I am even more pro about right vs wrong. I just find it strange that you cannot admit clear, factual evidence that speaks to the character of a defendent... yet it is VERY common to allow character and witness testimony that is - in my opinion - some of the least credible evidence you can have at a trial (witness tampering, flat out being wrong, lying, PREJUDICE).

Would love to hear some dopers weigh in.

Thanks!
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Old 02-25-2020, 03:13 PM
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I found this explanation, it is a PDF from the Maurer School of Law in Indiana.

https://www.law.indiana.edu/instruct...05prej/T05.pdf
Basically such rulings are up to the judge in the case. If the evidence is determined to be more harm than good, it will be excluded. The “harm” is that it would unduly prejudice the jury against the defendant, or it might cause too much confusion or be misleading, or it’s a waste of time. The harm is weighed against the “probative” effect of the evidence; in other words, how relevant, important, or helpful will the evidence be to clarify things.

In your example, I’m guessing the judge determined that the shirt would evoke negative emotions against the defendant without clarifying any of the facts of the case. Which seems plausible. It depends on what the prosecution was seeking to prove. Motive, opportunity, malice, the material facts of the crime, etc. If the evidence was intended to establish motive then that is pretty removed; you’d have to assume that he wore the shirt because he embraced ideals associated with a confederate flag, that those ideals made him a racist, and that the racism led him to decide that a black person’s life was worth taking. Those are a long chain of assumptions and while most people (including me) might consider that plausible, in a criminal trial that may not be solid enough to risk swaying the jury to convict him based on how much they dislike the shirt’s symbolism.

Again, it’s the judge’s job to make that determination and rule on it.
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Old 02-26-2020, 12:06 AM
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Keep in mind too that many people claim (for real or to muddy the waters) that a confederate flag is not ipso facto evidence of prejudice against black people. For some, it was simply a middle finger to authority and specifically the imposition of Washington's authority on the South.

The General Lee in Dukes of Hazzard, for example - while I didn't do an intensive study of the series, I don't recall any overtly racist issues with the Dukes. The car's name and roof décor represented "rebel" and were specifically a big "F---You" to authority, as represented by the caricature of southern corrupt "Boss". It's only recently that the flag has been taken to mean "if you like this flag you can only definitely be an extremist white power hillbilly".

So the fact that the policeman was wearing such a shirt does not necessarily mean that he was racist. However, it would have possibly triggered such a perception from some jurors. (OTOH, we are talking about a police officer from Ohio, so hard to argue "Southern Pride" about the flag.) So I assume the judge was saying "if you want to argue he was motivated by racism, you need some evidence more overt and obvious than an undershirt design." I mean, the guy could have been a Dukes of Hazzard fan.
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Old 02-26-2020, 03:54 AM
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IANAL, but I'm firmly in OP's camp. I've wondered about the same thing myself.

Facts and material can be BOTH prejudicial AND useful as evidence; the line is fuzzy. One fact might be "30% prejudicial" and another "50% prejudicial" but the judge makes a binary yes/no decision. If the jurors are not to be trusted to reject prejudice, why trust them at all? (I do realize that a "Let them see all prejudicial evidence" approach may be as bad as the status quo. I offer no simple solution.)

Does the judge have great ability to influence jurors? I recall this scene from The Wire where (at the 2:38 mark) judge ostensibly directs jurors to ignore testimony, while deliberately underlining it!
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Old 02-26-2020, 09:57 AM
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Prejudicial evidence is admissible. Evidence Rule 403
Quote:
Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice
, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence
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Old 02-26-2020, 10:25 AM
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One possibly noteworthy detail here is that the prosecution apparently offered the undershirt to show that it was undamaged, apparently as evidence against the defense theory that the defendant had been dragged by the car with arm entangled somehow. They were not offering it as evidence of motive or character.
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Old 02-26-2020, 11:07 AM
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Quote:
Originally Posted by chargerrich View Post

The officer:
- Chose to own a shirt with a confederate flag
- Chose to wear a shirt with an obvious racial bias
- Chose to actually wear this shirt with a clearly understood bias AT HIS CHOSEN PROFESSION

Does this not speak to his character in the same way character testimoney is used at trials? We often see a myriad of other evidence used in trials, i could easily posit that a not insignificant amount of ALL evidence is in some way prejudicial.
There’s two separate issue there: the use of character evidence and the significance of the Confederate flag.

On the first issue, character evidence, I’m posting from Canada, so evidential rules may be different in the States, but the general rule from the common law is that the prosecution is not allowed to call character evidence against the accused. The prosecution is to call evidence about the facts of the alleged offence, but cannot call character evidence, because it is usually of marginal relevance and too subjective to be the basis for a conviction. The issue is «what is the accused alleged to have done?», not «is the accused a bad person?» I once heard the Chief Justice of Canada speaking about this very point and he quoted the proverb «Give a dog a bad name so you can hang him.»

That’s not how the criminal justice system is to work. The prosecutor can’t say the accused is a bad person so should be convicted. The prosecutor has to prove that the accused has done a bad thing.

Now, there is an exception to this principle. The prosecutor can lead evidence of bad character, but only if the accused himself has put his character in issue.

So if the accused is charged with embezzlement, and has previously been convicted of embezzling funds from his employer, the prosecutor cannot put that criminal record in evidence. If there is a conviction, it’s to be based on the evidence of the current charge, not that the accused previously embezzled.

But if the accused testifies and puts his own character in evidence, for example by asserting that he would never steal from his employer, then the Crown can enter the prior conviction, to rebut the accused’s statement about his good character.

So when you ask why is this shirt being treated differently from other character evidence, it in fact is being treated exactly the same: unless the accused puts his character in evidence, the prosecutor can’t introduce character evidence.

The second issue is the significance of the shirt. You’re saying that the shirt is a clearly racist symbol. But as md2000 comments, not everyone would agree with that statement. What if a person asserts that it’s southern heritage? Or a symbol of «stick it to the man - I’m a rebel!». Or «I think it’s a cool flag design». That’s why something as difficult as the symbolism of a flag could be seen as inherently prejudicial, because there is no clear meaning to it. A subjective view that the flag is a racist symbol should not be used as evidence, unless you can show that the accused was wearing it as a racist symbol. It’s the subjective nature of the symbolism of the flag that tips it over the line into «too prejudicial».
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Old 02-26-2020, 12:06 PM
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“It’s the subjective nature of the symbolism of the flag that tips it over the line into «too prejudicial».”

Just curious, if he was wearing a Nazi symbol, would that still be considered subjective?
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Old 02-26-2020, 04:02 PM
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Quote:
Originally Posted by ishamael69 View Post
“It’s the subjective nature of the symbolism of the flag that tips it over the line into «too prejudicial».”

Just curious, if he was wearing a Nazi symbol, would that still be considered subjective?
Does wearing a nazi symbol or being a nazi make someone a murderer? Is it evidence that they committed a specific crime? It’s not the job of the state to prove the defendant is a shitty person it’s to prove that on a specific date at a specific time they committed a specific crime. There are certain circumstances dealing with motive and intent where something like that may be necessary to the case. There are other times when it would only prejudice the jury into thinking they are a bad person and is not evidence that they committed the crime. It’s up to a judge to decide.
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Old 02-26-2020, 05:58 PM
Northern Piper is offline
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Quote:
Originally Posted by ishamael69 View Post
“It’s the subjective nature of the symbolism of the flag that tips it over the line into «too prejudicial».”

Just curious, if he was wearing a Nazi symbol, would that still be considered subjective?
Prince Harry has been photographed wearing a swastika armband.

Does that mean we can assume Harry’s likely to commit crimes of violence against Jews?

Or do we conclude that he was a rebellious jerk trying to be edgy and shock people?

Or that he was just a dumbass teenager who didn’t get how abhorrent the symbolism was?

As Loach said, it’s the job of the police and the prosecution to prove that on a certain day, in a certain place, the accused committed a certain crime. The prosecution shouldn’t find its job made easier by being able to say to the jury, «And by the way, he’s a Nazi! You should get him off the streets!»
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Last edited by Northern Piper; 02-26-2020 at 06:02 PM.
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Old 02-26-2020, 06:20 PM
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Quote:
Originally Posted by Northern Piper View Post
Now, there is an exception to this principle. The prosecutor can lead evidence of bad character, but only if the accused himself has put his character in issue.

So if the accused is charged with embezzlement, and has previously been convicted of embezzling funds from his employer, the prosecutor cannot put that criminal record in evidence. If there is a conviction, it’s to be based on the evidence of the current charge, not that the accused previously embezzled.


But if the accused testifies and puts his own character in evidence, for example by asserting that he would never steal from his employer, then the Crown can enter the prior conviction, to rebut the accused’s statement about his good character.
I think your post is pretty accurate for the US but just to expand on this, at least some US jurisdictions have a couple of additional exceptions in which the conviction isn't actually being used as character evidence.

First , there are certain charges for which one of the elements is "having previously convicted of". Typically , it's something like this
Quote:
A person is guilty of auto stripping in the second degree when:
1. He or she commits the offense of auto stripping in the third degree
and when he or she has been previously convicted within the last five
years of having violated the provisions of section 165.09 or this
section;
so that in order to prove that this incident qualifies as second degree rather than third, the prosecutor would have to prove the previous conviction.

Second, evidence regarding a previous conviction might be offered for another purpose. It might not be offered to prove generally bad character, but to show that the previous crime was committed in the same distinctive manner as the current one or that the previous conviction provided the motive for the current crime - the defendant killed the store manager who fired him and whose testimony led to a previous conviction for theft. But in that sort of circumstance, just the fact of the conviction isn't enough.
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Old 02-26-2020, 06:26 PM
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As already mentioned, character evidence is generally not admissible to prove that a person acted in conformity with their character. (I.e., once a burglar, always a burglar).

In addition, evidence of specific instances of conduct other than the criminal conduct at issue may not be used to prove the person's character, in order to show that they acted in conformity with that character on a particular occasion. But, it is admissible for other purposes, such as showing motive, intent, opportunity, etc. -- basically any noncharacter purpose. And it is subject to 403 balancing where the character inferences are weighed against the probative value for the valid purpose. The court has options in addition to just admitting or excluding. It can redact if that's possible, admit part, all, or none, admit in a different form, or admit but with special jury instructions.

If the government said it wanted to show the undershirt to prove the defendant had not been dragged, that is a noncharacter purpose, but they could also presumably have someone testify that the shirt was entirely undamaged. It might be slightly less convincing than showing it, but the government can get the evidence it says it wants in front of the jury in another way, with none the prejudice.

If the government had charged a hate crime, or if it had a theory that the crime was overtly racially motivated, it might have a better argument for getting the actual shirt in front of the jury. But if their only argument was that it was undamaged, it isn't going to outweigh the unfair prejudice of showing the flag when they can get the same info to jurors another way.
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Old 02-26-2020, 06:27 PM
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ETA: concurring with Doreen’s post.

Yes, we have similar examples in Canada. The first type, though, normally goes to sentencing. Impaired driving is a good example. We don’t have degrees of impaired driving, but once convicted, your record of previous impaired driving can result in stiffer sentences. The second, «similar fact evidence» is also available, but it’s got pretty strict standards before the Crown can rely on it.
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Last edited by Northern Piper; 02-26-2020 at 06:28 PM.
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Old 02-26-2020, 08:22 PM
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The prior posters have done a good job of attempting to explain it, and many law review articles have been written and no post here can fully explain the intricacies of it.

But the test is not "prejudicial" as a lot of evidence is prejudicial. A video of the defendant shooting the murder victim is terribly prejudicial. The standard is to determine if the evidence is "unduly prejudicial" or stated otherwise "more prejudicial than probative."

First principles: We want to be fair. We want to try to admit evidence that tends to either prove or disprove whether this defendant committed the crime and have a jury only consider relevant evidence. You don't want to get into a situation where the jury thinks that the defendant is a bad guy so he probably did it. That's a natural human reaction, but not a good legal one.

So let's say that a defendant is on trial today for murdering his wife in 2019. In 1984, he was convicted of torturing a dog to death. On one hand, you might say that torturing a dog to death is relevant evidence that shows the defendant's violent personality and is relevant to show that he is more likely to have murdered his wife because of that fact. On the other hand, you might say that the jury will put too much weight on that fact; that it will convict him, not based upon the evidence of his wife's murder, but solely because it thinks he is a bad guy, which is not what we want.

So, how does Judge OP rule on the admissibility of the dog evidence? And whatever you think, you can surely keep going down the rabbit hole where you see that a piece of evidence might have some relevance, yet the overwhelming likelihood is that the evidence will simply not be very relevant to the case at hand and be simply prejudicial without much probative value.

The line is what the law tries to draw.
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Old 02-27-2020, 02:18 PM
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Thank you for all the excellent points raised and to be considered!
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Old 02-27-2020, 03:38 PM
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recent related thread on evidence admission in the OJ Simpson trial.
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