Murder, Misogyny, and The Due Process Clause: U.S. Supreme Court Grapples With The Effect Of Unduly Prejudicial Evidence

In 2004, Appellant, Brenda Andrew was convicted in Oklahoma of first-degree murder and conspiracy to commit first-degree murder for participating in the homicide of her husband to collect his life insurance policy. Andrew was subsequently convicted and sentenced to death and is the only woman currently on death row in Oklahoma. At trial, the Government introduced evidence of Andrew’s alleged promiscuity and her “failings” as a mother and wife, which she argued was irrelevant and highly prejudicial. For example, the Government elicited testimony about Andrew’s prior sexual partners, made various derogatory comments, calling her names like “slut puppy” and “hoochie” due to her clothing choices and hairstyle, and questioned her style of grieving because she hadn’t broken down in tears during her trial.  In closing argument, the Government displayed for the jury a pair of Andrew’s thong underwear and asked, rhetorically, “whether a ‘grieving widow’ would wear ‘this.” In response to a subsequent habeas petition, the Government conceded that much of this evidence was irrelevant.

Upon granting certiorari, The U.S. Supreme Court confirmed that its prior rulings, including Payne v. Tennessee (501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991)) established that “the due process clause forbids the introduction of evidence so unduly prejudicial as to render a criminal trial fundamentally unfair.” The Court overruled The U.S. Court of Appeals for the Tenth Circuit which had erroneously found that no federal law prohibited the introduction of irrelevant and prejudicial evidence about a defendant’s sexual history and behavior.

Justice Samuel Alito concurred in the judgment “because our case law establishes that a defendant’s due-process rights can be violated when the properly admitted evidence at trial is overwhelmed by a flood of irrelevant and highly prejudicial evidence that renders the trial fundamentally unfair.” He emphasized that he left open the question, to be determined on remand, of whether the high standard for such a conclusion had been met here.

Of note, Justice Clarence Thomas was joined in dissent by Justice Neil Gorsuch, opining that some of the evidence presented against Andrew was relevant to the case. For instance, “the prosecution’s reference to the underwear Andrew brought to Mexico . . . bore on her ‘intentions in fleeing to Mexico,’ a key issue in the case,” Justice Thomas went on to state that “contrary to the majority’s insinuations, the State presented ‘overwhelming evidence’ that Andrew participated in the murder of her husband.”

The Supreme Court continues to focus on issues in criminal law. While the matter has been remanded, it is significant that The Supreme Court has weighed in on the detrimental effects of the Government utilizing stereotypes, gender or otherwise, in its pursuit of a conviction.