It might seem at best quixotic, and at worst absurd, to assert that Federal Rule of Evidence 403-an iconic evidentiary exclusionary rule providing that relevant evidence can be excluded if it is too time-consuming or distracting-is unconstitutional. Yet, if the Sixth and Seventh Amendments to the Constitution-respectively preserving the right to a criminal jury and a civil jury- are to be taken seriously, that conclusion not only is plausible, but perhaps inescapable. More surprisingly and consequentially, deep thinking about the constitutionality of FRE 403 exposes that there may be constitutional concerns with large swaths of the Federal Rules of Evidence, the Federal Rules of Criminal Procedure, the Federal Rules of Civil Procedure, and Supreme Court jurisprudence.
The argument attacking the constitutionality of FRE 403 is simple to state, at least in the first instance. FRE 403 permits the exclusion of "relevant" evidence, which FRE 401 defines as evidence making a fact "of consequence" "more or less probable. If constitutionally a jury is the exclusive fact finder on a particular issue, and if a piece of evidence makes a fact of consequence to that issue more or less likely, then it would seem there is no way constitutionally to keep that evidence from the jury, at least not on a justification of more efficient trials and, in the judge's view, more accurate verdicts. The Supreme Court has held that neither efficiency nor accuracy is a basis for constricting the right to a trial by jury. Yet, that is the effect and goal of FRE 403: "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, wasting time, or needlessly presenting cumulative evidence."
In the end, this article argues for two initially startling propositions. The constitutional right to trial by jury largely prevents a trial judge from regulating the presentation of evidence to ensure a rationally efficient trial and accurate verdict. And no academic, lawyer, or judge has evaluated the argument before now. To make these arguments, Section II of this article will trace the surprisingly recent lineage of evidentiary exclusionary rules and the rationales advanced by them, all of which post-date the constitutional enshrinement of jury trial rights, and none of which takes that enshrinement into account. Section III of this article will review the increasingly forgotten history of the Sixth and Seventh Amendment guarantees of a right to trial by jury, with particular focus on the recognition by the Framers that jurors had, at best, flawed capabilities, yet still were preferred to judges as decision makers at trial. In other words, the Framers chose juries over judges with their eyes open. Section IV of this article then turns specifically to the jurisprudence recognizing the jury not just as the trial fact finder, but as the exclusive fact finder. Section V of this article then will evaluate the constitutionality of FRE 403. Section VI of this article will address, in overview, the question of why it matters.
Kenneth S. Klein, Why Federal Rule of Evidence 403 is Unconstitutional, and Why That Matters, 47 U. RICH. L. REV. 1077 (2013).