Up Close and Personal: The Challenges and Opportunities of Remote Litigation

• Date: 01 September 2021
• Author: By Brendan Hammer

8FAMILY ADVOCATEwww.shopaba.org

property, irrespective of an accountant’s opinion to the

contrary.” erefore, even though the accountant should

have been allowed to testify, the court found no prejudice

from the exclusion of his testimony.

In Diamond Oshore Servs. v. Williams, 542 S.W.3d 539,

545 (Tex. 2018), the defendant appealed after plainti

received a large verdict in a personal injury suit. e defen-

dant’s surveillance video showed the plainti engaged in

physical activities. e video was excluded by the trial court

without the trial court reviewing the video. e appellate

court reversed and remanded. Appellate courts around the

country have similarly admonished trial courts that the

proper exercise of discretion requires viewing visual evidence,

particularly when balancing admissibility under Rule 403.

On the other hand, video depositions need not be viewed

before ruling on objections unless the objection is specic to

a visual aspect of the deposition.

Ford Motor Co. v. Miles, 967 S.W.2d 377, 389 (Tex. 1998),

involved a defective seat belt design. e Texas Supreme Court

found the trial court improperly admitted evidence of Ford

Motor Company’s test videos showing dummies being injured

due to seat belts. e videos were not of the same type of vehicle

or seat belt system at issue in this case. “e videos were

calculated to arouse the sympathy and passions of the jury.”

In In re E.A.G., 373 S.W.3d 129, 147 (Tex. App—San

Antonio 2012, pet. Denied), “[t]he relevant criteria for

determining whether the prejudice of admitting the evidence

substantially outweighs the probative value include, but are

not limited to, the following: (1) the probative value of the

evidence; (2) the potential the evidence has to impress the

jury in an irrational but nevertheless indelible way; (3) the

time needed to develop the evidence; and (4) the proponent’s

need for the evidence to prove a fact of consequence.” Here,

the appellate court found that although some testimony

should have been stricken and disregarded, the admission of

this evidence was not an abuse of discretion because there

was plenty of other evidence considered by the jury that

could have resulted in the same verdict.

In Grace v. Grace, 253 Mich. App. 357, 365 (2000), the

wife was not to mention or testify in “any manner whatso-

ever, to any facts regarding (husband)’s business entities, his

personal income, the nancial condition of his businesses,

and any other such evidence, which occurred subsequent to

October 1, 1990, until the plainti, in a pre-trial hearing, in

the absence of the jury, can demonstrate to the court the

relevance of such evidence, and that the evidence is more

probative than prejudicial.” Husband argued in a motion for

new trial that a new trial should be granted because wife

entered said evidence. e court found the probative value of

evidence of his business post divorce was not substantially

outweighed by danger of unfair prejudice in wife’s action

against husband for marital fraud. However, the court found

no abuse of discretion where there was an eight-day jury trial

and witnesses were subjected to rigorous cross examination.

In Reis v. Hoots, 131 N.C. App. 721, 727 (1998), whether

to exclude evidence as overly prejudicial is within the

discretion of the trial court. Here, the court found that,

“[b]ecause the trial judge gave a limiting instruction for the

evidence in dispute, it follows that he recognized the

potential for prejudice and exercised his discretion in

permitting its introduction. is Court will not intervene

where the trial court properly appraises the probative and

prejudicial values of evidence under Rule 403.”

It’s important to note that the appellate court is not to

reweigh the probative versus prejudicial elements. ey

consider those elements in the context of whether the trial

court abused its discretion. If there was prejudice to a party if

relevant evidence had been excluded, that could be abuse of

discretion. Likewise, if excluded evidence is determined to be

relevant and not unfairly prejudicial, there is no abuse of

discretion if the admission of that evidence would not have

changed the outcome of the case.

Confusing the Issues and Misleading the Jury

Relevant evidence will be excluded if it confuses the issues

and misleads the jury. e court continues to use the

probative vs. unfairly prejudicial balancing test when

determining whether the evidence will mislead the jury.

Examples of this follow.

In Reville v. Reville, 312 Conn. 428, 504 (2014), the court

found that just because evidence is inconclusive, does not

make it inadmissible. “All that is required is that the evidence

tend to support a relevant fact even to a slight degree, [as]

long as it is not prejudicial or merely cumulative.” e court

here examined the procedural history of an analysis of a

pension and determined there was an abuse in discretion in

the trial court failing to examine all of the relevant evidence.

In Lee v. Spoden, 290 Va. 235 (2015), the court used a

balancing test to assess the probative value vs. its prejudicial

eect. e mere fact that evidence is highly prejudicial to a

party’s claim or defense is not a proper consideration in

applying the balancing test for admission of relevant evidence;

If there was prejudice

to a party if relevant

evidence had been

excluded, that could be

abuse of discretion.

Published in Family Advocate, Volume 44, Number 4, Spring 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

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