Friday, July 14, 2006

Prejudice can outweigh probative value?

Carl Folsom won in State v. Bailey, No. 94,412 (Kan. App. July 14, 2006)(unpublished), reversing a Geary County possession conviction. The COA agreed with Carl's argument that it was improper for the district court to introduce a three-ring notebook found at a residence containing documents belonging to Mr. Bailey. Unfortunately, it also included a substantial number of documents related to Mr. Bailey's status on probation, and matters involving other criminal cases. Even though the district court gave a proper 60-455 limiting instruction, the COA held that the contents of the notebook were irrelevant or only minimally relevant and that the prejudicial effect of the contents was substantial. This is an example of the new willingness of an appellate court giving de novo type review to an evidentiary question. (See here for previous discussion).

The state also argued that because Mr. Bailey was acquitted of eight of nine charges, any error was harmless. The COA agreed that "This verdict suggests that Bailey may not have been substantially prejudiced by the admission of [the notebook]." I have argued that such a verdict should make it harder to find an error harmless. In any case, the COA held that the improper admission of the notebook's contents warranted reversal.

[Update: the state did not file a petition for review and the mandate issued on August 17, 2006]

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