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25.17 Outbursts By Witnesses

    25.17.1 Outbursts By Witnesses: Curative Admonition
    25.17.2 Outbursts By Witnesses: Whether Admonition Is Required Sua Sponte
    25.17.3 CAVEAT: Outburst By Defense Witness May Broaden Scope Of Testimony
    25.17.4 Outburst Or Nonresponsive Answers By Witness As Indication Of Bias Against Defendant

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    25.17.1    Outbursts By Witnesses: Curative Admonition

RATIONALE: When there is an outburst by a witness which may have a prejudicial impact upon the defendant, a prompt curative admonition of the witness and instruction to the jury may be appropriate.

POINTS AND AUTHORITIES: An outburst by a witness which is "nonresponsive" or beyond the scope of the questioning is inadmissible evidence and should not be considered by the jury. (See generally Imwinkelried, Giannelli, Gillian, Lederer, Courtroom Criminal Evidence (Lexis, 3rd ed, 1998) § 125, pp. 40-41.) Hence, the answer should be stricken and the jury admonished to disregard the remark made by the witness. The jury should further be directed to put the matter out of their minds totally as if it had not occurred and not to consider it in deliberations at all. (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:61:40 [General Instructions - Outburts – By Witnesses] (West, 1999); see also Malik v. State (MD 2003) 831 A2d 1101.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.1; 7.3].

PRACTICE NOTE: The court has an obligation to ensure a fair trial and to take prompt action to limit the prejudicial impact of an inadmissible outburst by a witness by an admonition to the witness and instruction to the jury. (See e.g., People v. Gonzalez (NY 1975) 341 NE2d 822, 825, 38 NY2d 208, 210; see also People v. Marcelin (NY 1965) 370 NYS2d 560; People v. Tucker (NY 1987) 133 AD2d 787, 788, 520 NYS2d 70 [prosecution witness made emotional outburst in which she exclaimed her certainty that defendant was perpetrator].)

CAVEAT: Limiting Scope Of Defense Witness. Outbursts By Defense Witness May Broaden Scope Of The Testimony.  If the outburst is by a defense witness counsel will have to consider whether to object to the testimony of his or her own witness to assure that the scope of the direct testimony is limited. "For example, the defense counsel may be attempting to limit the defendant's direct to preclude the prosecutor from inquiring into certain highly prejudicial matters on cross. A nonresponsive answer from the witness on direct may broaden the scope of the direct and thereby undermine the proponent's attempt to limit the scope of the cross. The proponent must be alert for such nonresponsive answers and immediately move to strike the answers that would 'open the door.' In the short term, it can be embarrassing to have to move to strike an answer by your own witness; but the counsel must take the longer view and conduct a cost/benefit analysis. Left in the record, the answer might pave the way for the admission of damning, otherwise inadmissible evidence; and on balance, it may therefore be advisable to move to strike." (Imwinkelried, Giannelli, Gillian, Lederer, Courtroom Criminal Evidence (Lexis, 3rd ed, 1998) § 125, p. 41.)

SAMPLE INSTRUCTION # 1:

    I admonish you not to draw any inference or conclusion whatever from the outburst of the witness. You are to decide this case solely on the testimony of the witnesses and the exhibits which have been admitted into evidence. You must totally disregard the outburst of the witness and any statements made during that outburst. Those statements have been stricken and are not evidence.*

* But see FORECITE National™ 25.17.4 [Outburst Or Nonresponsive Answers By Witness As Indication Of Bias Against Defendant].

[See also 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.11 [Dismissal, During Trial, Of Some Charges Against Single Defendant] ¶ 2 (2000).]

SAMPLE INSTRUCTION # 2:

    You may have heard or seen an emotional outburst by a witness/spectator. I instruct you that it is not evidence. I instruct you to ignore it. You must not discuss it or consider it in your deliberations.

    Do you understand these instructions? Are you able to follow these instructions? Do you agree with these instructions?

SAMPLE INSTRUCTION # 3:

    I want to instruct you that the outbursts of the witness which you observed just prior to the bench conference are not evidence in this case, and may not be considered by you in any way whatsoever in your deliberations in this case.

[Malik v. State (MD 2003) 831 A2d 1101, 1114.]

SAMPLE INSTRUCTION # 4:

    All right. Members of the jury, please disregard anything that the witness may have said or done after she left the witness stand.

[Malik v. State (MD 2003) 831 A2d 1101, 1113 n11.]

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    25.17.2    Outbursts By Witnesses: Whether Admonition Is Required Sua Sponte

    See FORECITE National™ 25.17.1 [Curative Admonition: PRACTICE NOTE].

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    25.17.3    CAVEAT: Outburst By Defense Witness May Broaden Scope Of Testimony

    See FORECITE National™ 25.17.1 [Curative Admonition: CAVEAT].

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    25.17.4    Outburst Or Nonresponsive Answers By Witness As Indication Of Bias Against Defendant

PRACTICE NOTE:  When there is a nonresponsive answer or outburst by a witness the jury may be instructed to disregard the outburst.  (See FORECITE National™ 25.17.1 [Outbursts By Witnesses: Curative Admonition].)  

    However, another approach is to ask the jury to consider the nonresponsive answer as an indication of bias against the defendant.  (See The Shellow Instructions: Witness Credibility: Nonresponsive Answers May Demonstrate Bias Of Witness.)   

    See also The Shellow Instructions: Witness Credibility: Volunteered Prejudicial Statements As Sign Of Bias.