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43 J. Legis. 1 (2016)

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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).


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