U.S. Supreme Court

In Andrew v. White, 604 U.S. ___, No. 23-6573, 2025 U.S. LEXIS 40 (Jan. 21, 2025), the court holds a constitutional right to have "unduly prejudicial evidence" excluded in the mertis phase of a trial under the Due Process Clause. This might be beneficial for appellants who have their cases still on appeal. See, e.g., United States v. Sweeney, 70 M.J. 296, 304 (C.A.A.F. 2011); United States v. Tovarchavez, 78 M.J. 458, 462 (C.A.A.F. 2019).

Old Chief v. United States, 519 U.S. 172 (1997) is recommended reading as well.

The State spent significant time at trial introducing evidence about Andrew’s sex life and about her failings as a mother and wife, much of which it later conceded was irrelevant. In a federal habeas petition, Andrew argued that this evidence had been so prejudicial as to violate the Due Process Clause. Court of Appeals rejected that claim because, it thought, no holding of this Court established a general rule that the erroneous admission of prejudicial evidence could violate due process. That was wrong. By the time of Andrew’s trial, this Court had made clear that when “evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” Payne v. Tennessee, 501 U. S. 808, 825 (1991).Payne v. Tennessee, 501 U. S. 808, 825, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991).

2025 U.S. LEXIS 406, at *1 (emphasis added).

Importantly, Payne did not invent due process protections against unduly prejudicial evidence. The Court had several times before held that prosecutors’ prejudicial or misleading statements violate due process if they render a trial or capital sentencing fundamentally unfair. Donnelly v. DeChristoforo, 416 U. S. 637 (1974); Caldwell v. Mississippi, 472 U. S. 320, 338-3401 (1985); Darden, 477 U. S., at 178-183,  Payne thus broke little new ground in this respect. By the time of the OCCA’s decision in this case, it was clear that the introduction of unduly prejudicial evidence could, in certain cases, violate the Due Process Clause.

2025 U.S. LEXIS 406, at *10. If the appellate court can be persuaded of a constitutional error, does that mean any prejudice has to be harmless beyond reasonable doubt?