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S. Craig Panter
CABA

Handling Highly Prejudicial Evidence

Jan 10, 2017
Handling of Highly Prejudicial Evidence

Highly Prejudicial Evidence

Highly prejudicial evidence can take many forms, and it largely depends upon the facts of a particular case. So, it is not possible in this post to address each form it may take.

There are, however, at least three concerns with the handling of highly prejudicial evidence – – evidentiary, ethical, and practical.

Evidentiary.

The Mississippi Rules of Evidence explain that 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.

In addition, it may be excluded by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The rule does not define “unfair prejudice,” nor could it, since each case turns upon its own facts.

Ethical concerns with prejudicial evidence.

From an ethical standpoint, Rule 3.6(a) of the Mississippi Rules of Professional Conduct states that “[a] lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.”

As mentioned in another post , Section 73-3-37 of the Mississippi Code prohibits a lawyer from advancing a fact “prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which they are charged.”

These statements reflect the fact that a lawyer owes a duty to the entire judicial system and not just to his client.

Practical considerations.

The practical consideration is this – – premature announcement of highly prejudicial evidence in the presence of the jury (or a judge in a non-jury case) creates the risk of a mistrial. Further, it the evidence is a personal nature, using it can also create the impression that the lawyer is being a bully to the witness.

Craig Painter

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