Georgia's trial courts have long permitted extensive leeway to prosecutors in how evidence is presented at trial. That leeway is not necessarily wrong, but it has led to excessively long trials.
BY JONATHAN A. PORTER
Long criminal trials are a problem facing our state's justice system right now. A decade ago, the Atlanta Public Schools cheating scandal broke records as the longest trial in state history: an eight-month-long trial. That record was shattered last year by the so-called Young Slime Life (YSL) trial in Fulton County Superior Court. In that case, jury selection alone lasted 10 months, and the trial lasted a full year more. Those cases are certainly outliers, but the continued growth of digital evidence involved in crimes means that cases now involve more evidence than before, meaning longer trials.
Long criminal trials are a problem for several reasons. First, they clog up court dockets. According to statistics released from Georgia courts, civil and criminal filings both increased from 2022 to 2023 (the most recent year available as of this writing), but civil and criminal case disposition decrease/ in the same time period.[1] In other words, Georgia courts are falling behind, getting more new cases and disposing of fewer cases. Long criminal trials certainly contribute to the disposition statistics.
Second, long criminal trials make obtaining retained counsel extremely expensive. Trying a months-long case has a serious opportunity cost for experienced defense attorneys, and those attorneys price in that opportunity cost when quoting fees to potential clients. The longer that trials become, the more expensive it will be for those accused of crimes to defend themselves. That is a big problem for anyone who wants a system of justice that is not cost-prohibitive and not entirely reliant on public defenders.
Third, our system of justice works best with jurors who do not detest jury duty. At some point, jurors compelled to serve stop viewing jury duty as a necessary part of democracy and start viewing it as unfair. When citizens read about a year-long trial in the newspaper, they start getting more and more creative when it comes to ducking jury duty. Because the public is paying for our system of justice, the system needs public support.
What, then, is the answer to the problem of increasingly long criminal jury trials? Many have offered ideas for reform, but the one that this article seeks to highlight is already part of Georgia law: Georgia Rule of Evidence 403, which provides: "Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."[2]
Most trial lawyers primarily know Rule 403 for its bar of relevant evidence that would unfairly prejudice a party, or its prohibition of evidence that would confuse the issues or mislead the jury, but Rule 403 also calls for the exclusion of evidence that, though relevant, would result in "undue delay, waste of time, or needless presentation of cumulative evidence."
What, then, is the answer to the problem of increasingly long criminal jury trials? Many have offered ideas for reform, but the one that this article seeks to highlight is already part of Georgia law: Georgia Rule of Evidence 403.
Yet it seems as though those latter portions of Rule 403 are so unknown that litigants have forgotten them. For example, months into the year-long Young Slime Life trial, the prosecution filed a curious one-sentence motion in limine that moved "to allow the State to present all relevant evidence to the jury and to deny objections to the presentation of relevant evidence on the basis that said evidence is a 'waste of time.'"[3] In so moving, the prosecutors were either unfamiliar with Rule 403, or they just did not like it.
Regardless of which category the Young Slime Life prosecutors fit, reemphasizing Rule 403 seems appropriate as a remedy against ever-lengthening trials. This article seeks to spark such reemphasis. This article will start with a brief history of Rule 403, followed by some examples of how Rule 403 has been used in courts to keep trials moving. This article will end with some Rule 403 best practices for judges and trial attorneys to consider.
A Brief History of Rule 403: How Delay and Timeliness Concerns Came to Outweigh Relevancy
Georgia Rule of Evidence 403 tracks Federal Rule of Evidence 403,[4] which was created "as a method to regularize and regulate the use of 'discretion' in the admission and exclusion of evidence."[5] Judicial discretion in the realm of evidence has long been criticized as imperfect. The seminal criticism was espoused by Lord Camden: "The discretion of a Judge is die law of tyrants; it is always unknown."[6]More recently, a leading federal treatise noted attorneys' fears that heavy-handed judges misuse discretion to "coerce a lawyer into doing something the judge lacks any legitimate power to compel."[7]
Nevertheless, early drafters of the Model Evidence Code came to realize that "no matter how many detailed rules we lay down," "a fair trial depends to the highest degree upon the sense of fairness, the good faith, and the will-to-be-fair of the trial judge."[8] Given that realization, the drafters found necessary a version of Rule 403 that allowed judges the discretion to exclude relevant evidence in certain situations.
The result is a construct that some have called "structured discretion," in that judges can exclude relevant evidence under the rule only after balancing its probative value against the harm.[9] Yet the inherent discretion within Rule 403 to exclude relevant evidence is significant, and intentionally so, in order to allow a judge to expeditiously move the trial toward a conclusion, as long as the judge engages in the balancing of the evidence's probative value against the harms listed in Rule 403.
Best Understood Through Examples: How Courts Have Used Rule 403 to Keep Trials Moving
The tension throughout all Rule 403 case law is the directive from Georgia's appellate courts that exclusion of evidence under the rule "'is an extraordinary remedy which should be used only sparingly,"'[10] while also near-categorically deferring to trial courts that exercise their discretion under Rule 403. Indeed, when reviewing decisions to admit or exclude evidence under Rule 403, Georgia's appellate courts note that they "only rarely ... reverse," opting instead for a view of Rule 403 that grants trial courts "wide latitude" to weigh the probative value against harm.[11] Therefore, although Georgia's trial courts are instructed to err on the side of inclusion of evidence, the vast majority of case law shows that decisions to limit evidence are rarely reversed.
For logical reasons, however, Georgia's appellate courts are not flush with opinions approving of limitations on prosecutors' cumulative or unnecessarily time-consuming evidence. This is because the vast majority of criminal appeals are by defendants following conviction, not by prosecutors. As a result, appellate courts find themselves with little platform to opine on orders curtailing prosecutors' presentation of evidence in sometimes unnecessary ways.
Yet there are plentiful examples that show that trial courts' "wide latitude" to weigh probative value against harm and delay would be upheld by Georgia appellate courts.
One helpful example comes in the form of a hypothetical from the drafters of the Model Code of Evidence back in 1942. During debates on what would become Rule 403, a professor offered this example:
Take evidence of similar accidents, for example, to show that a particular place is dangerous. Now, most of the courts will say that you can put that in if there is not going to be a great dispute about each one of these accidents. Suppose you offer to show that X was hurt at this particular place one year ago and Y was hurt at this particular place two years ago and there were three or four accidents in that place, and suppose the opponent of the evidence says, "If you admit that evidence, sir, we intend to go into the question of the circumstances of each one of those accidents to show that it was due solely to the fault of the injured person." Is the trial court going to have to take all that evidence? It is all relevant. The reason that the courts give frequently for keeping that testimony out is that it will consume too much time.[12]
This example shows that the drafters of the model rules realized that trials could get bogged down in relatively non-probative endeavors if the rule permitted endless relevant evidence. In the example offered, evidence of past accidents would be relevant, but would create a series of mini-trials on whether the past accidents show that a particular place is dangerous. The result is discretion bestowed upon the trial court either to wholly exclude the similaraccident evidence, or to fashion creative ways to limit presentation of evidence in such a way that would not derail the entire trial.
This 1942 hypothetical shows that trial courts can exercise their "wide latitude" to oversee trials and exclude evidence that, while relevant, would waste time.
Federal appellate courts have concluded that district courts have discretion to limit prosecution evidence, and that discretion should not be disturbed on appeal. A 2009 decision from the U.S. Court of Appeals for tire Tenth Circuit is particularly instructive in that it expressly held that it is proper for a district court to limit a prosecutor's presentation of relevant evidence if the evidence is "more of the same." In that case, United States v. Burgess, [13] the district court considered...
