11 Dec Virginia: Special Cases – a Lawyer’s Prejudice
On September 17, 2015, the Virginia Supreme Court addressed res judicata by claim preclusion and by issue preclusion (particularly collateral estoppel) in Lee v. Spoder, a Fairfax County appeal. Id. at 6-13. Notably, it delineated “unfairly prejudicial” evidence. Id. at 13-15.
Lee emphasized: “The requirement under Rule 2:403 that only ‘unfair’ prejudice may be considered reflects the fact that all probative direct evidence generally has a prejudicial effect to the opposing party.” Id. at 14. “All evidence tending to prove guilt is prejudicial to an accused.” Id. “Any prejudice in the form of the jury’s perception of the claims of a party is not unfair prejudice such that its admission could properly be barred under Virginia Rule of Evidence 2:403(a).” Id. “Direct evidence is rarely subject to exclusion on the ground that it would be unduly prejudicial.” Id. “Instead ‘unfair prejudice’ refers to the tendency of some proof to inflame the passions of the trier of fact, or to invite decision based upon a factor unrelated to the elements of the claims and defenses in the pending case.” Id. “Thus, the mere fact that evidence is highly prejudicial to a party’s claim or defense is not a proper consideration in applying the balancing test [for admission or exclusion].” Id. at 15 (emphasis added).