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MANAGING FEAR-BASED DEROGATION IN MURDER
TRIALS
John Rafael Perezf
INTRODUCTION
Federal Rule of Evidence 403 (Rule 403) governs all evidentiary decisions,
and yet its foundational nature often leaves it unsatisfactorily questioned and criti-
cized. Rule 403 states, in relevant part, that [t]he court may exclude relevant evi-
dence if its probative value is substantially outweighed by a danger of . .. unfair prej-
udice. This relatively simple statement speaks volumes about the deeply held
values of the American adversarial system. Indeed, the need for undue prejudice to
substantially outweigh probative value reveals a preference for admitting evidence
even if that evidence may pose an unfair threat to a criminal defendant. This tendency
is defensible because over-exclusion of evidence could certainly prevent parties from
telling their full stories in court. For our system to deliver justice, however, we must
properly decide when the threat of prejudice is too great such that admissibility must
yield to greater values and ideals.
According to Yale Law School Professor Stephen Carter, the idea of unfair prej-
udice is incredibly unclear and understudied.2 Despite the concept's proliferation in
judicial opinions, briefs, and academic articles, very few lawyers and scholars have
sought to comprehensively define the term and clearly delineate its boundaries. For
this reason, it is incredibly important to turn to the field of psychology, which closely
studies human attitudes, behaviors, and cognitions under controlled conditions, for
insights into the nature of prejudice.3 Indeed, psychological studies have informed
T Associate, Cleary Gottlieb Steen & Hamilton LLP; Yale Law School, J.D. 2016. I am grateful to Professors
Amy Chua, Stephen Carter, Dan Kahan, Bernice Khoo, Michelle See, and Tom Tyler for valuable insights,
ideas, and opportunities to write about issues that I care about, to Samantha Lyew and the editors of the Notre
Dame Journal of Legislation for providing careful editing and a platform to share my ideas, and to Alon Gur,
Grace Hart, Tasnim Motala, Britta Redwood, Alicia SInchez-Ramfrez, and Rebecca Wexler for their encour-
agement, support, and friendship throughout the writing process. As with all my endeavors, this Article is ded-
icated to my family, whose love and faith in me have always been unwavering and unconditional.
1. FED. R. EVID. 403.
2. Stephen L. Carter, William Nelson Cromwell Professor of Law, Yale Law School, Evidence Class on
Rule 403 (Jan. 2015). Indeed, this deficiency taps into a broader problem-that legal systems are seldom struc-
tured to account for predictable human frailties, even when there are dire consequences to allowing such frailties
to contaminate legal decision-making. See, e.g., J. Alexander Tanford, The Limits of a Scientific Jurisprudence:
The Supreme Court and Psychology, 66 IND. L.J. 137, 138 (1990) (The Supreme Court, however, has not
welcomed empirical research on jury behavior when deciding evidence and trial procedure cases. Instead, the
Justices seem to react to it with distrust and suspicion. They continue to approve legal rules based on intuitive
assumptions about human behavior that research by psychologists has shown to be erroneous.).
3. See, e.g., June Louin Tapp & Felice J. Levine, Epilogue for Psychology and the Law, in LAW, JUSTICE,
AND THE INDIVIDUAL IN SOCIETY: PSYCHOLOGICAL AND LEGAL ISSUES 364 (June Louin Tapp & Felice J. Lev-
ine eds., 1977).
1](ViewImageLocal?handle=hein.journals/jleg43&div=1&collection=&method=preview&ext=.png&size=3)
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