So, an issue that arose in one of my classes got me thinking. We know that evidence of a crime may be inadmissible due to unfair prejudice under FRE 403 (and its state equivalents).
What about things that aren’t crimes, but that jurors may be predisposed to think are? Say, blood doping (legal, unless certain substances are involved), or sex with a minor who is over the state’s age of consent? Could a party move to exclude such evidence based on commonly held misconceptions?
What would be the relevance? How does showing the defendant acted lawfully establish that he acted unlawfully?
IANAL, but I would expect the prosecution would have to establish how the probative value of whatever it was outweighed the inflammatory effect. It would need to go to prove some element of the crime. You couldn’t just say “he used blood doping, therefore he is guilty of dealing cocaine.”
Well there is 404 which prohibits ‘other acts’ to be introduced as character evidence.
Under 404(b)(2) it may be admissible for another purpose. “This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
Also 403 is not just limited to evidence of other crimes but any relevant evidence where the prejudice might outweigh the probative value.
The general rule of thumb is that in order for evidence to be admissible the judge must determine that the probative value outweighs it’s potentially prejudicial effect. For example, if the prosecutor wants to introduce a picture of the autopsy of a victim as evidence, the judge will have to determine whether if the picture will actually help the jury understand something or it will simply make them think the defendant is a cold-blooded killer.
Sorry about the double post, but now that I think about it in order to introduce character evidence (i.e. evidence that tends to support something about the defendant’s character (e.g. ill-tempered, promiscuous) that doesn’t relate to the crime) the defendant must sort of “open the doors” to it first.
For example, if the defendant introduces evidence that the defendant was generous , giving to X charity every year," then the prosecutor then can introduce evidence that contradicts the defendant’s alleged good character, but not before then. Generally. I think. IANAL.
My question is not so much whether it applies as whether you can make the necessary showing of prejudice. It’s easy to show that a prior rape conviction is prejudicial in a rape prosecution. How do you show that a legal but morally questionable act is prejudicial?
I think that the hardest part isn’t going to be showing that it’s prejudicial (you can just argue that) but that, in order for it to be relevant at all, it’s unlikely that there would be unfair predjudice. I guess the relevancy bar is so low, but still, these things are likely to have either substantial or no probative value. Right?
I’ll give you the example that we were discussing:
Athlete X takes Drug Y to control his blood pressure. Athlete X has been doping. Athlete X has a heart attack. Athlete X sues Big Pharma Company Z, claiming the drug caused his heart attack. Big Pharma Company Z gets him to testify that he was doping. We didn’t really get into whether the doping was a contributing factor to the heart attack, because it was a failure to warn claim; that is, strict liability.
I argued that Athlete X should move to exclude the doping evidence because in the wake of the Armstrong/Bonds/Maguire stuff the term “doping” has become synonymous with steroid use and is often believed to be illegal.
Is the “dope” in question known to affect the heart? I think that would be key. If the “dope” in question is steroids (known to cause high blood pressure and other heart related stuff) then it seems pretty dang relevant and admissible to me. Hell that would be the foundation of my defense if I was Big Pharm. If not, I think it would depend on the judge. Maybe there are cases but I’m not going to look them up.
But, it seems to me the question is this: Does the plaintiff need to demonstrate causation between the drug and the injury?
If BigPharma can say: “We didn’t cause this, the doping did” and that’s a valid legal theory, I think it’s in.
If the question is whether or not the drug was a contributing factor (and that’s sufficient), then the other contributing factors seem less relevant (assuming they’re not necessary to demonstrate that it was a contributing factor).
But the issue here isn’t the prejudicial effect of the doping evidence (although, tacticly that may be why you want it out), it’s the probative value.
How prejudicial the evidence will be decided by judicila discretion, but I think it would be very difficult to get the evidence excluded. You might be able to argue in your motion to disallow the use of certain terms that may introduce prejudice such as ‘doping’.
I don’t know a lot about them either, which is why this is a problem for me. What I know is that failure to warn consumers of the danger of a product makes the manufacturer strictly liable for any injuries caused by the product. In most states, including Colorado (whose law governs the hypothetical), contributory negligence is not a defense to strict liability because, well, it’s strict liability. So as I see it, it shouldn’t matter if it was a factor.
I think you just answered your own question. It is strict liability, but the injury must have been caused by the product. That seems to be the central question of the trial: Did Drug Y or the blood doping cause the athlete’s heart attack? I can’t imagine any judge saying that evidence of blood doping, while admittedly prejudicial to the athlete, is not extremely probative and allow it. It’s the essence of the case.
I think you are conflating the “duty” and “breach” elements with the causation element. The only thing strict liability does is assume that duty and breach are satisfied. Contributory negligence is not applicable here because the drug company isn’t saying “Yes, our Drug Y caused the heart attack, but his doping surely added to the problem!”
Short answer: I think your motion sucks a big one.
Then it’s in. This all goes to causation. If the plaintiff has to show that the injury was caused by the product, then Big Pharma can surely argue that the injury was caused by something else.
Maybe you can get the term “doping” excluded under 403, but the evidence has to come in.
I agree with this. I would argue that the term “doping” is prejudicial and doesn’t have a definitive enough meaning to be probative. Pick the most benign term you can think of for it and move that the defense must use that term so as not to inflame the jury.
