Judge Bruce Selya—a federal appellate judge who sits on the U.S. Court of Appeals for the First Circuit—is fond of writing that “[o]nly rarely—and in extraordinarily compelling circumstances—will [an appellate court], from the vista of a cold appellate record, reverse a district court’s on-the-spot judgment concerning the relative weighting of probative value and unfair effect.” A recent published decision from the Eleventh Circuit shows that, sometimes, an appellate court not only defers to a district court’s judgment, but agrees with it.
The case is Tracy v. Fla. Atl. Univ. Bd. of Trustees, No. 18-10173, 2020 WL 6707526, at *1 (11th Cir. Nov. 16, 2020). A university, Florida Atlantic University, had fired a professor, James Tracy. The Professor argued that the University fired him because he hosted a blog in which he criticized the media and explored conspiracy theories. The University argued that it fired him because he knowingly violated a University policy that required professors to report outside activities (specifically, the Professor had failed to report his blogging). The question was thus presented: had the University retaliated against the Professor for his speech—thereby violating the First Amendment—or did it fire him for insubordination?
The Rule 403 issue centered around a transcript of a 2015 faculty meeting during which the University policy was discussed. At that meeting, several professors expressed confusion about what the policy covered and criticized the policy’s residual effects, which included the University asking the professors follow up questions about their outside activities. The Professor argued that the transcript was relevant because, if others were confused about the policy, it “might help explain why he had acted in an insubordinate manner.”
The trial court ruled that the transcript was inadmissible under Rule 403. Under that rule, a “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, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. In holding the transcript inadmissible, the trial court focused on jury confusion and unfair prejudice. Specifically, the trial court “reasoned that the angry remarks of some of the professors, which did not concern Plaintiff’s specific case, would focus the jury on the wisdom of the Policy, not on the question properly before the jury: whether the University had terminated Plaintiff because of his blog or instead because of his insubordination.”
Although the Eleventh Circuit could have simply held that the trial court had acted within its broad discretion, it went further. It held that it “agree[d] with the court’s reasoning.” Like the trial court, the Eleventh Circuit reasoned that transcript would confuse the jury and have them focusing on the wisdom of the policy, not on what motivated the University’s termination decision. The court explained:
“Given that the professors’ pique was the predominant focus of the Faculty Senate meeting, there was a serious risk that admitting the transcript would cause the University to suffer unfair prejudice, forcing it to defend its character against inadmissible claims concerning other individuals, while distracting the jury from their central obligation to decide the issue before them. Moreover, the district court correctly found that statements regarding faculty confusion had little probative value for the core issue at trial—whether the University fired Plaintiff for his speech rather than for his admitted insubordination.”
Beyond illustrating how Rule 403 is applied, the Tracy decision is a good reminder to trial judges that they should—like the trial judge in Tracy—articulate their reasoning for Rule 403 rulings. Doing so will make the appellate court’s job easier.
On a separate note, the trial judge in Tracy had made another useful point when ruling on the 403 objection, specifically, the transcript likely contained inadmissible hearsay. Ultimately, the Professor was offering it to prove the truth of the matters asserted by the other professor-declarants, namely, that they were, in fact, confused by the University policy on outside activities.
If you want to read the entire Tracy decision, you can click on the link below.
