Supplements casebook after Perry v. New Hampshire on page 462
Case Summary: Andrew v. White
Lower courts highlighted the lack of Supreme Court caselaw reversing convictions based on the improper admission (as opposed to exclusion) of evidence in their review of the murder conviction of Brenda Andrew. As the Supreme Court explained in Andrew v. White (2025),
“An Oklahoma jury convicted Brenda Andrew of murdering her husband, Rob Andrew, and sentenced her to death. The State spent significant time at trial introducing evidence about Andrew’s sex life and about her failings as a mother and wife, much of which it later conceded was irrelevant….
At Andrew’s trial, the prosecution sought to prove that Andrew had conspired with James Pavatt, an insurance agent, to murder her husband for the proceeds of his life insurance policy. Among other things, the prosecution elicited testimony about Andrew’s sexual partners reaching back two decades; about the outfits she wore to dinner or during grocery runs; about the underwear she packed for vacation; and about how often she had sex in her car. At least two of the prosecution’s guilt-phase witnesses took the stand exclusively to testify about Andrew’s provocative clothing, and others were asked to comment on whether a good mother would dress or behave the way Andrew had.”
When Andrew challenged her conviction in the federal courts, the Tenth Circuit ruled that the Supreme Court had not yet established that there was any due process protection against the introduction of unfairly prejudicial evidence. The Supreme Court reversed. Its per curiam opinion explained:
“The Court of Appeals rejected that claim because, it thought, no holding of this Court established a general rule that the erroneous admission of prejudicial evidence could violate due process. That was wrong. By the time of Andrew’s trial, this Court had made clear that when ‘evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.’” Payne v. Tennessee, 501 U.S. 808, 825 (1991).
The Supreme Court sent the case back to the Tenth Circuit with the following instructions, tailored to the deferential standard of review that applied to the case:
“Specifically, the question is whether a fairminded jurist reviewing this record could disagree with Andrew that the trial court’s mistaken admission of irrelevant evidence was so ‘unduly prejudicial’ as to render her trial ‘fundamentally unfair.’
The Court of Appeals must ask that question separately for the guilt and sentencing phases. As to each phase, it might consider the relevance of the disputed evidence to the charges or sentencing factors, the degree of prejudice Andrew suffered from its introduction, and whether the trial court provided any mitigating instructions. The ultimate question is whether a fairminded jurist could disagree that the evidence ‘so infected the trial with unfairness’ as to render the resulting conviction or sentence ‘a denial of due process.’”
Andrew v. White establishes beyond doubt that there is a due process limit on the introduction of unfairly prejudicial evidence, and suggests that the right can be invoked in fairly common scenarios involving the admission of irrelevant, unfairly prejudicial evidence (essentially creating a constitutional backstop to Rule 403). But while this right is broadly applicable, it is likely that lower courts (including, importantly, federal courts reviewing state court rulings in collateral proceedings) will apply the due process protection only in cases that involve extreme examples of unfairly prejudicial evidence.