The Manhattan District Attorney’s Office’s prosecution and conviction of former President Donald Trump on 34 felony counts provides a lesson on evidence — specifically, the rules governing what’s admitted and what’s excluded.
As trial lawyers, we’ve likely all experienced at some point a kidney-punch objection[1] from opposing counsel — the kind that often comes during openings and closings, and that has the potential to derail your train of thought, if not the case narrative as a whole.
“Objection, prejudicial!” your opposition tells the judge.
One might reasonably and simply respond that “it’s evidence, it’s supposed to be prejudicial.” We introduce it to prejudice the judge or jury in favor of our client’s case. The more relevant question is whether the evidence may cause substantial unfair prejudice — or whether its prejudicial potential is perfectly fair within the bounds of the law.
Such episodes make one reflect on how many times we see attorneys misstating or misunderstanding Rule 403 of the Federal Rules of Evidence and its state court analogs. And of course, during the recent Trump prosecution, the nation watched as pundits sought to explain these matters to a lay audience.
Rule 403 provides that “[t]he 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.” The word “substantially” is often neglected by some attorneys who invoke the rule.
Rule 403 must be read in context with Rule 401, which governs relevancy and defines evidence as relevant if: “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Hence, the question is whether it is “probative” — a word used in Rule 403 but not Rule 401 — with regard to deciding a fact in dispute.
As Rule 401 does not delineate between direct and circumstantial evidence, the rule allows fragments of evidence — evidence that does not speak for itself and which we call “circumstantial” — to be admitted, leaving it to counsel to argue inferences from that evidence.
The check against Rule 401’s liberal definition of relevancy is Rule 403’s filter that allows the judge discretion to exclude evidence whose probative value is, for example, substantially outweighed by its danger of unfair prejudice. Again, the operative words are “substantial” and “unfair prejudice.”
What the rule contemplates is a balancing test. If one were to envision a scale, the scale would have to be substantially tipped — or as the rule says “substantially outweighed” — toward the rule’s delineated dangers to merit exclusion.
In the 2012 case of United States v. Boros[2], the U.S. Court of Appeals for the Seventh Circuit outlined a framework for challenging evidence that otherwise has probative value. The court explained:
The amount of prejudice that is acceptable varies according to the amount of probative value the evidence possesses. “[T]he more probative the evidence, the more the court will tolerate some risk of prejudice, while less probative evidence will be received only if the risk of prejudice is more remote.”[3]
In People v. Trump, the testimony of porn star Stormy Daniels raised the issue of when probative evidence may be excluded. Trump, of course, was prosecuted for essentially disguising hush money expenditures to Daniels as retainer payments to attorney Michael Cohen.
Integral to the prosecution’s case was proving Trump paid the money, that he paid it to prevent the dissemination of damaging information during his 2016 campaign — hence making this a campaign expense — and that the payments were falsely reported on business records as legal expenses to the former president’s then-counsel, Michael Cohen.
When Daniels testified not just to the existence of a relationship with Trump, but to the intimate details of the relationship, pundits questioned whether those details should have been excluded.[4] Indeed, at times, New York Supreme Court Justice Juan M. Merchan himself tried to reel in the testimony. He also pointed out that the defense could have or should have objected.[5]
Though Daniels’ testimony was no doubt prejudicial in that it had the potential to sway decision-makers in favor of the prosecution’s case, the question is whether it was prejudicial in the probative sense contemplated by Rule 401, or whether some of it caused “collateral damage” or “unfair prejudice” that substantially outweighed its probative value.
For example, Daniels suggested that her physical involvement with Mr. Trump was unwelcome.[6] Was this information necessary to the government’s case, or was it the type of information whose probative value was substantially outweighed by the danger of unfair prejudice or even confusing the issues?[7] This was not, for example, a case of the former president’s treatment of Daniels.
The prosecution’s counterargument is that this was precisely the type of information — indeed, accusation — that could derail a presidential campaign, and explains why hush money was paid and why that expenditure was campaign-related.
More specifically, in People v. Trump, the government needed to prove that the payments were targeted to suppress not just embarrassing information, but information that would likely impair a presidential campaign. Integral to the government’s narrative were at least some details about what Daniels would have disclosed back in the waning days of the 2016 presidential campaign.
While Rule 4.06 of the Guide to New York Evidence[8] — the New York analog to Rule 403 — does not specifically provide for the exclusion of evidence that is needlessly cumulative, one could argue that, once the jury got a sense of what Daniels might have made public during the final days of the 2016 presidential campaign, testimony over every intimate detail had the potential to create “undue prejudice to a party.”[9]
Though the words of Rule 403 and its state court analogs are easy to understand, the
application of the rule is far from cookie-cutter. Where does the analysis begin? What does “substantially outweighed” mean? What about “unfair prejudice”? And why is all this important in terms of how a practitioner works through admissibility issues?
First, from the plaintiff’s perspective, use either the anticipated jury instructions or case law to outline the elements of the claim, and determine what facts need to be proven and what evidence is available to prove those facts. Be mindful that where a fact is in dispute, most of the time the plaintiff will only have circumstantial evidence, because if direct evidence were available, the “fact” would be less likely to be in dispute.[10]
Second, as to evidence that will be introduced to prove a fact in dispute, rigorously analyze whether that evidence is truly probative of a fact in dispute. Don’t drink your own Kool-Aid — play your opponent and think of the reasons why the evidence may not be probative even if it has the optics of being probative.
Third, consider whether the evidence arguably does more collateral damage to the defendant than it does to prove a fact in dispute.[11] If this is true, reevaluate whether the evidence is necessary for the case. Perhaps consider a “reverse motion” in limine to secure a ruling on the evidence before trial to avoid that kidney-punch objection. Maybe even propose to the court a jury instruction that will address your opponent’s concerns about the evidence.
While the above analysis contemplates the perspective of a plaintiff or prosecutor, the reverse logic applies for a defense lawyer. Remember that Rule 403 also contemplates the exclusion of cumulative evidence or evidence that risks confusing the jury.[12]
And the fix may not always be a matter of exclusion of all the evidence. Consider a fix from the vantage point of a judge who looks for solutions through compromise. As in the case of People v. Trump, maybe it was not possible for the defense to keep all the detailed allegations of intimacy from the jury, but perhaps it was possible to keep out more evidence than was ultimately admitted.
Where excluding the evidence may be an uphill battle, attorneys might consider asking a judge for instructions that provide the jury with a framework for evaluating the evidence.[13] Building a case is all about understanding what evidence is available and what challenges will be made to the evidence.
As for that kidney-punch objection that can knock you off guard at trial, anticipate objections, secure early rulings on potentially problematic evidence, and consider seeking remedies such as jury instructions that limit the impact of the evidence.
And remember that one important thing: Evidence is supposed to be prejudicial. That’s why we introduce it!
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Reuben Guttman is a senior founding partner at Guttman Buschner & Brooks PLLC. He is co-author of “Pretrial Advocacy” (NITA/Wolters Kluwer 2023).
[1] See, Profiles in Justice: A ‘one of a kind’ trial lawyer – The Global Legal Post at “Tip 2.”
[2] United States v. Boros, see 668 F.3d 901, 909 (7th Cir. 2012).
[3] Citing United States v. Vargas, 552 F. 3d 550, 557 (7th Cir. 2008).
[4] See, e.g., Experts: Trump lawyers “went too far” — but Stormy Daniels testimony may give them ammo for appeal | Salon.com.
[5] Most NY rules of evidence are not codified. Guide to New York Evidence (GNYE) rule 4.06 (Exclusion of Relevant Evidence) https://www.nycourts.gov/judges/evidence/4-RELEVANCE/4.06_EXCLUSION%20OF%20RELEVANT%20EVIDENCE.pdf is analogous to the Federal Rule. It provides that “A court may exclude evidence if its probative value is outweighed by the danger that its admission would: (1) create undue prejudice to a party; (2)confuse the issues and mislead the jury; (3) prolong the proceeding to an unreasonable extent without any corresponding advantage to the offering party; or (4) unfairly surprise a party and no remedy other that exclusion would cure the prejudice caused by the surprise.”
[6] See, e.g. Meritor Savings Bank, FSB v. Vinson, 477 US 57, 68 (1986) where the Court distinguishes between a relationship that is “voluntary” and one that is “welcome.”
[7] While GNYE Rule 4.06 does not use the word “substantially”, some New York Courts have read that word into the rule. See, e.g., People v. Caban, 14 NY 3d 369 (2010) (“Evidence, though relevant, may be excluded where ‘its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury.” Citing, People v. Scarola, 71 NY 2d 769, 777 (1988).
[8] GNYE Rule 4.06.
[9] See, People v. Petty, 7 NY3d 277, 286-287 (2006) (finding that evidence may be excluded when it is unnecessarily cumulative).
[10] See, e.g. Guttman, Reuben.
[11] See State v. Duvall 275 S.E.2d 842, 855 (N.C. App. 1981) rev’d on other grounds, 284 S.E.2d 495 (N.C. 1981), a highly publicized hit-and-run case, the court found that the trial court properly used its discretion in allowing a photograph of the victim to be entered into evidence, because the “fact that evidence may arouse the jury’s emotions is not sufficient in itself for its exclusion.”
[12] The test is always one of “substantially outweighed.”
[13] Sometimes a jury instruction may not solve the problem. See Gumm v. Mitchell 775 F.3d 345 (6th Cir. 2014), a case involving the murder and sexual assault of a child, the court opined that testimony that a mentally disabled defendant claimed to have had intercourse with a horse was “irrelevant to the offenses charged, highly inflammatory, of exceedingly questionable veracity, and not counterbalanced by a limiting instruction or overwhelming evidence of Gumm’s guilt to render its admission harmless.”
