FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 272
Go to Volume 13 Table of Contents  -  Go to Chapter 272 Table of Contents

272.5    Summation/Closing Argument: Prosecutor Misconduct -- Curative Instructions

    272.5.1 Admonition To Counteract Prosecutor Misconduct During Summation/Closing Argument
    272.5.2 Prosecutor Misconduct During Summation/Closing Argument: Curative Instruction
    272.5.3 Duty Of Court to Reprimand Prosecutor For Misconduct Summation/Closing Argument
    272.5.4 Inability Of Limiting Instruction To Cure Highly Prejudicial Misconduct During Summation/Closing Argument
    272.5.5 Circumstances Where Cautionary And Limiting Instructions May Be Effective

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 272

    272.5.1    Admonition To Counteract Prosecutor Misconduct During Summation/Closing Argument

PRACTICE NOTE: "[W]hen the defense counsel requests cautionary instructions, the trial judge certainly must give them if he agrees misconduct has occurred. He should aim to make a statement to the jury that will counteract fully whatever prejudice to the defendant resulted from the prosecutor's remarks. (People v. Bolton (CA 1979) 23 C3d 208, 215-16, fn 5 [152 CR 903].)

    See FORECITE National™ 272.5.2 [Prosecutor Misconduct During Summation/Closing Argument: Curative Instruction].

See also Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court].

See also A Manual On Jury Trial Procedures [3.19A. Closing Argument: In General].

See also A Manual On Jury Trial Procedures [3.19D. Closing Argument: Curative Jury Instructions].

See generally FORECITE National™ 305.19.9.2 [Summation/Closing Argument].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 272

    272.5.2    Prosecutor Misconduct During Summation/Closing Argument: Curative Instruction

RATIONALE: There are many forms of prosecutorial misconduct during argument, including name calling, improper comment on defendant’s failure to testify, improper comment on defendant’s failure to call witnesses, misstatement of the law, reference to matters not in evidence, prosecutor making himself or herself an unsworn witness, forcing the defense into claiming the prosecution witness lied, arguing that to acquit defendant would require the jury to find that the police officers perjured themselves, efforts to inflame the jury and disparagement of the defense. The potential prejudicial impact is obvious, and a prompt and forceful instruction may be necessary.

POINTS AND AUTHORITIES: It has been suggested that a prompt curative instruction may be necessary to cure the prejudice which flows from such misconduct. (See e.g., People v. Green (CA 1980) 27 C3d 1, 29 [164 CR 1]; see also People v. Williams (NY 1979) 390 NE2d 299.)

    For example, when the prosecutor has misstated the law the trial judge should give a careful instruction reminding the jury that it is the judge, not the lawyers, whose instructions as to the law must be followed. (People v. Miller (IL 1994) 630 NE2d 1125, 1132 [after each objection by defense counsel, judge admonished jury to read instructions]; see also People v. Pennetti (NY 1992) 581 NYS2d 869, 870 [court swiftly and correctly halted improper remarks and admonished jury to disregard them and that instructing the jury was the task of the court and not the prosecutor].)

    However, an "immediate" and "forceful" admonition is required.  (See CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI 4.53, comment (1) [Summation: Sua Sponte Instructions] (New York Office of Court Administration, 1983); see also Bouknight v. U.S. (DC App. 1994) 641 A2d 857, 861 [curative instruction given by court]; People v. DeHoyos (IL 1988) 527 NE2d 319, 324 [court instructed jury to disregard comments]; State v. Shepley (SD 1989) 440 NW2d 294, 296 [judge admonished jury to disregard improper comment]; but see U.S. v. Panet-Collazo (1st Cir. 1992) 960 F2d 256, 260 [misconduct cured by instructions]; People v. Fomond (IL 1995) 652 NE2d 1322, 1329 [timely objection to prosecutor’s comments and appropriate instruction]; Commonwealth v. Ward (MA 1990) 550 NE2d 398, 400 [routine admonition that counsel’s argument is not evidence was insufficient to cure prejudice]; State v. Koedatich (NJ 1988) 548 A2d 939, 989 [trial judge gave a strong cautionary instruction].)

    "[W]hen the defense counsel requests cautionary instructions, the trial judge certainly must give them if he agrees misconduct has occurred. He should aim to make a statement to the jury that will counteract fully whatever prejudice to the defendant resulted from the prosecutor's remarks. (People v. Bolton (CA 1979) 23 C3d 208, 215-16, fn 5 [152 CR 903].)

    STRATEGY NOTE: As a matter of strategy, counsel will have to consider whether objecting and requesting a curative instruction will unduly highlight the prejudice. However, unless the misconduct is so egregious that the appellate court will hold that the misconduct could not be cured, a failure to object and request a curative instruction will likely waive the issue. (See e.g., People v. Green, (CA 1980) 27 C3d 1, 27 [164 CR 1]; see also CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI 4.53, comment (3) [Summation: Sua Sponte Instructions] (New York Office of Court Administration, 1983).)

FEDERALIZATION: To federalize this request, click here: [Constitutional Macro 11.1; 11.2].

See also Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court].

See also A Manual On Jury Trial Procedures [3.19A. Closing Argument: In General].

See also A Manual On Jury Trial Procedures [3.19D. Closing Argument: Curative Jury Instructions].

See generally FORECITE National™ 305.19.9.2 [Summation/Closing Argument].

SAMPLE INSTRUCTION # 1:

    Ladies and Gentlemen of the jury, the prosecutor has just made certain uncalled for insinuations about the defendant. I want you to know that the prosecutor has absolutely no evidence to present to you to back up their insinuations. The prosecutor's improper remarks amount to an attempt to prejudice you against the defendant. Were you to believe these unwarranted insinuations, and convict the defendant on the basis of them, I would have to declare a mistrial. Therefore, you must disregard these improper, unsupported remarks.

[Source: People v. Bolton (CA 1979) 23 C3d 208, 215-16, fn 5 [152 CR 903].]

    The prosecutor's argument that ______________ (insert description of improper argument) is not evidence, or based on evidence. Do not consider that portion of the prosecutor's argument for any purpose. ______________ (insert description of improper argument) is neither evidence not is it based on evidence. You must only consider evidence presented in this court in attempting to decide this case.

[See CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI 4.53 [Summation: Sua Sponte Instructions] (New York Office of Court Administration, 1983).]

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 272

PRACTICE NOTE: When an appeal to prejudice has been made, "it is the duty of the Court to reprimand the prosecuting officer, sustain the objections and, if possible, make it clear to the jury that the court does not condone the conduct of a prosecuting officer, and eradicate the same from the minds of the jury. If that cannot be done, a new trial, or a mistrial, should be granted." (Gluck v. State (FL 1952) 62 So2d 71, 72.)

    See also FORECITE National™ 272.4 [Prosecutor Misconduct During Summation/Closing Argument].

    See also FORECITE National™ 272.4.1 [Varieties Of Prosecutor Misconduct During Summation/Closing Argument].

    See also FORECITE National™ 272.4.2 [Prosecutor Misconduct During Summation/Closing Argument: Improper Emotional Appeals].

    See also FORECITE National™ 272.4.3 [Prosecutor Misconduct During Summation/Closing Argument: Reference To Inadmissible Evidence].

    See also FORECITE National™ 272.5.1 [Admonition To Counteract Prosecutor Misconduct During Summation/Closing Argument].

    See also FORECITE National™ 272.5.2 [Prosecutor Misconduct During Summation/Closing Argument: Curative Instruction].

See also Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court].

See also A Manual On Jury Trial Procedures [3.19A. Closing Argument: In General].

See also A Manual On Jury Trial Procedures [3.19C. Closing Argument: Admonishment Of Counsel].

See also A Manual On Jury Trial Procedures [3.19D. Closing Argument: Curative Jury Instructions].

See generally FORECITE National™ 305.19.9.2 [Summation/Closing Argument].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 272

    272.5.4    Inability Of Limiting Instruction To Cure Highly Prejudicial Misconduct During Summation/Closing Argument

PRACTICE NOTE: The court "normally presume[s] that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an 'overwhelming probability' that the jury will be unable to follow the court's instructions ...." (Greer v. Miller (1987) 483 US 756, 767 [107 SCt 3102; 97 LEd2d 618].) This presumption, however, is "rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation ...." (Richardson v. Marsh (1987) 481 US 200, 211 [107 SCt 1702; 95 LEd2d 176].) With regard to "an explicit statement the only issue is, plain and simply, whether the jury can possibly be expected to forget it in assessing the defendant's guilt." (Richardson, 481 US at 208; see also U.S. v. Kallin (9th Cir. 1995) 50 F3d 689, 694-95; U.S. v. Copelin (DC Cir. 1993) 996 F2d 379, 385 [limiting instruction must be given immediately after evidence of defendant's prior conviction is admitted for purposes of impeachment]; see also FORECITE National™ 16.1.6 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice]; FORECITE National™ 26.5.3.2 [Ineffectiveness Of Limiting Instruction As To Uncharged Acts Or Crimes].) "...[S]ome arguments, filled with inflammatory comments and going far beyond any issues that might have been relevant at the trial, will lead to reversals regardless of what steps the trial court may have taken to attempt to neutralize the effect of the impropriety." [Footnote omitted.] (Wharton’s Criminal Evidence (West, 14th ed. 1986) § 4:3, p. 292.)

    It is the essence of sophistry and lack of realism to think that an instruction or admonition to a jury to limit its consideration of highly prejudicial evidence to its limited relevant purpose can have any realistic effect. (People v. Gibson (CA 1976) 56 CA3d 119, 130 [128 CR 302]; see also Krulewitch v. U.S. (1949) 336 US 440, 453 [93 LEd 790] Jackson, J. concurring ["The naive assumption that prejudicial effects can be overcome by instructions to the jury, [citation], all practicing lawyers know to be unmitigated fiction. [Citation.]"]; see also Crooks v. Glens Falls Idem. Co. (CA 1954) 124 CA2d 113, 119 [268 P2d 203] [cautionary instruction does not cure prejudicial effect of partisan comments by the judge]; People v. Jackson (CA 1970) 3 CA3d 921, 931 [83 CR 829]; People v. Guerrero (CA 1976) 16 C3d 719, 729 [129 CR 166] ["no limiting instruction, however thoughtfully phrased or often repeated, could erase from the jurors' minds [the inadmissible evidence]"; People v. Fabert (CA 1982) 127 CA3d 604, 610 [179 CR 702] [courts have expressed serious reservations about the efficacy of curative or limiting instructions to cure Doyle (Doyle v. Ohio (1976) 426 US 610, [96 SCt 2240; 49 LEd2d 91]) violations]; People v. Coleman (CA 1985) 38 C3d 69, 94 [211 CR 102] [limiting instruction inadequate to ensure that jurors would consider inflammatory hearsay only for limited purpose of supplying basis for expert opinion]; People v. Williams (CA 1999) 69 CA4th 474 [81 CR2d 611] [limiting instruction did not cure error in informing jury about defendant's withdrawn plea of guilty]; see also U.S. v. Johnson (5th Cir. 1977) 558 F2d 1225, 1230; Reid v. Riddle (4th Cir. 1977) 550 F2d 1003, 1004; U.S. v. Impson (5th Cir. 1976) 531 F2d 274, 278). Evidence of such a prejudicial character will "find permanent lodgment in [a juror's] mind ...." (People v. Albertson (CA 1944) 23 C2d 550, 577 [145 P2d 7].)

    "You can't unring a bell." (People v. Hill (CA 1998) 17 C4th 800 [72 CR2d 656] [internal quotation marks and citations omitted].) "The juror does not possess that trained and disciplined mind which enables him ... to discriminate between that which he is permitted to consider and that which he is not. Because of this lack of training, he is unable to draw conclusions entirely uninfluenced by the irrelevant prejudicial matters within his knowledge ...." (Ibid.; see also People v. Williams (CA 1970) 11 CA3d 970, 977-78 [90 CR 292].)

    Accordingly, even a full and forceful admonition may be inadequate "to overcome the substantial danger of undue prejudice ...." (People v. Allen (CA 1978) 77 CA3d 924, 935 [144 CR 6].) For example, the following cases have held admonitions to be insufficient: People v. Gibson (CA 1976) 56 CA3d 119 [128 CR 302] [other crimes evidence]; People v. Roof (CA 1963) 216 CA2d 222, 225 [30 CR 619] [prior charge]; People v. Johnson (CA 1964) 229 CA2d 162, 170 [40 CR 105] [opinion of police officer that defendant was guilty]; People v. Ozuna (CA 1963) 213 CA2d 338, 342 [28 CR 663] ["ex-convict"]; People v. Figuieredo (CA 1955) 130 CA2d 498, 505-06 [279 P2d 200] [defendant "did time"]; see also People v. Matteson (CA 1964) 61 C2d 466, 469-70 [39 CR 1]; People v. Hardy (CA 1948) 33 C2d 52, 61-62 [198 P2d 865]; U.S. v. Figueroa (2nd Cir. 1980) 618 F2d 934, 943; U.S. v. Schiff (2nd Cir. 1979) 612 F2d 73, 82.)

    As a further example, People v. Wagner (CA 1975) 13 C3d 612 [119 CR 457] is especially instructive. There the prosecution asked a number of questions which implied that the defendant, who was charged with a narcotics offense, had been involved in prior drug related activity. Despite the defendant's negative answer to all the questions, a full admonition by the trial court and a specific jury instruction, the court held that the prejudice had not been cured. (Id. at p. 621; see also California Attorneys For Criminal Justice FORUM 18 No. 5, at p. 49 "Prejudicial Impact of Pretrial Publicity.")

    Also, an instruction may not cure the prejudicial effect of a question which has no factual basis in the record. (Cooper, KENTUCKY INSTRUCTIONS TO JURIES 1.33 [Admonitions Limiting Effect Of Evidence] (Anderson, 4th ed. 1999); see also Derossett v. Commonwealth (KY 1993) 867 SW2d 195, 198.)

    See FORECITE National™ 297.3.1 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice].

    See FORECITE National™ 297.3.2 [Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter].

    See FORECITE National™ Chapter 297: Demonstrating Prejudice On Appeal From Instructional Error. 

See also Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court].

See also A Manual On Jury Trial Procedures [3.19A. Closing Argument: In General].

See also A Manual On Jury Trial Procedures [3.19D. Closing Argument: Curative Jury Instructions].

See generally FORECITE National™ 305.19.9.2 [Summation/Closing Argument].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 272

PRACTICE NOTE: Despite the skepticism as to the ability of jury instructions to limit or cure highly prejudicial errors, it would be inaccurate to assume that cautionary and limiting instructions can never be useful. ("Jury Instructions: A Judicial Perspective," by Hon. Dennis C. Kolenda, Circuit Judge, Grand Rapids, Michigan. [To read the Kolenda article, click here. [Article Bank # A-81].)

See also Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court].

See also A Manual On Jury Trial Procedures [3.19A. Closing Argument: In General].

See also A Manual On Jury Trial Procedures [3.19D. Closing Argument: Curative Jury Instructions].

See generally FORECITE National™ 305.19.9.2 [Summation/Closing Argument].