Posted on 2/19/18

Imagine that a prosecutor stands in front of the jury at the close of a long and emotional trial. The trial featured a murder charge against an accused gang member. The prosecution kept pointing to the children of the victim and explaining how lonely and emotionally traumatized they are now that their father is dead. Now, with high drama in the courtroom, the prosecutor tells the jury that they should put themselves in the shoes of the victim, who was fearful for his life when he saw the defendant approach him. The defense attorney objects to this, claiming that the prosecutor is using overly prejudicial statements. The judge accepts the objection and tells the prosecutor to rephrase. When the judge provides the jury with instructions, the judge emphasizes that the jury is not to put themselves in the victim’s shoes and is to focus strictly on the legal aspects of the case.

Overly Prejudicial Evidence

Section 403 of the Federal Rules of Evidence empowers a judge to dismiss evidence that is overly prejudicial. Similarly, section 403 of the Texas rules of evidence provide: “The 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, or needlessly presenting cumulative evidence.” That is to say, if a court finds that evidence will lead to a point where the focus is less on the legal question and more on the emotions of the case, then such evidence can be excluded. A court will make a judgment call when weighing the facts in determining what type of evidence is “prejudicial.”

To tell a jury to put themselves in the shoes of the victim is prejudicial and can be dismissed. Calling certain witnesses to the stand may be seen as prejudicial. For instance, hearing the testimony of a child of a murder victim may be considered prejudicial and disallowed. A court would be charged with determining whether such a child’s testimony, when weighing the factors, is prejudicial.


Unlike judges and lawyers, juries tend to be more emotional, so speaking to a jury is a different skill than speaking to a judge. With a jury, a prosecutor tends to create a narrative that he or she wants the jury to follow whereas a judge who hears a trial is usually focused on the facts and the law and has less interest in the narrative.

Note that a party must object to prejudicial evidence. If there is no objection, a court usually admits that evidence. Therefore, when defendants represent themselves in a criminal defense trial, the prosecution will often try to bring in evidence otherwise considered prejudicial because the prosecution assumes that the defendant will lack the knowledge and skill to object to the admissibility of such evidence.

Accused of a crime? Do not face the criminal justice system alone. Contact the law office of Christopher Abel, a board-certified criminal defense attorney.

(image courtesy of Cristina Lavaggi)

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