THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 14 - CHAPTER 297
Go to Volume 14 Table of Contents  -  Go to Chapter 297 Table of Contents

297.3 Analysis Of Prejudice

    297.3.1 Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice
    297.3.2 Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter
    297.3.3 Whether Omission Of Cautionary Instruction Regarding Defendant's Failure To Testify Can Be Harmless Error
    297.3.4 Standard Of Prejudice: Instructional Error May Be Prejudicial Even If Claim Is Procedurally Barred By Teague

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 14 - CHAPTER 297

PRACTICE NOTE: "Ordinarily, the prejudicial impact of an objectionable reference may be neutralized by an instruction to the jury to disregard it, by such an instruction in addition to an admonition to the prosecutor, or by the prosecutor’s retraction of or apology for the objectionable reference." [Footnotes omitted.] (Wharton’s Criminal Procedure (West, 13th Ed. 1989) § 453, pp. 1053-54.)

United States Supreme Court Authority

    See Krulewitch v. U.S. (1949) 336 US 440, 453 [69 SCt 716; 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]"]. 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, 764 [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, 208 [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.)

    Reid v. Riddle (4th Cir. 1977) 550 F2d 1003, 1004; U.S. v. Johnson (5th Cir. 1977) 558 F2d 1225, 1230; U.S. v. Impson (5th Cir. 1976) 531 F2d 274, 276- 78. For example, the following cases have held admonitions to be insufficient: U.S. v. Figueroa (2nd Cir. 1980) 618 F2d 934, 943; U.S. v. Schiff (2nd Cir. 1979) 612 F2d 73, 82; U.S. v. Kallin (9th Cir. 1995) 50 F3d 689, 694-95.) "Otherwise stated, one ‘cannot unring a bell’: ‘after the thrust of the saber it is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can't instruct the jury not to smell it.’" (Dunn v. United States, 307 F2d 883, 886 (5th Cir. 1962).)

    "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 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. 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. 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. Jackson (CA 1970) 3 CA3d 921, 931 [83 CR 829]; 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].)

    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] [quoting Wharton’s Criminal Evidence (West, 14th ed. 1986) § 360, p. 567].) "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].) "One experienced judge has compared a limiting instruction to an act of throwing a skunk into the jury box and telling the jury not to smell it." (Alexander, MAINE JURY INSTRUCTIONS MANUAL 4-14 [Limited Purpose Evidence-Limiting Instructions] (Lexis, 1999).)

    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 (1976) 56 CA3d 119, 129 [128 CR 302] [other crimes evidence]; People v. Matteson (CA 1964) 61 C2d 466, 469-70 [39 CR 1]; People v. Johnson (CA 1964) 229 CA2d 162, 170 [40 CR 105] [opinion of police officer that defendant was guilty]; People v. Roof (CA 1963) 216 CA2d 222, 225 [30 CR 619] [prior charge]; 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"]; People v. Hardy (CA 1948) 33 C2d 52, 61-62 [198 P2d 865]; Kosmas v. State (MD 1989) 560 A2d 1137, 1142-43 [reference by witness for prosecution to defendant’s unwillingness to take a polygraph test not cured by court’s sua sponte instructions disregard]; see also Lynn McLain, Maryland Evidence (1995) sec. 103.10 ["The efficacy of an instruction to disregard is questionable. Not only may jurors not be able to erase from their minds the inadmissible information they have heard, but an instruction to disregard may emphasize it"].)

    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 NCJIC 26.5.3.2 [Ineffectiveness Of Limiting Instruction As To Uncharged Acts Or Crimes].

    See also NCJIC 272.5.4 [Inability Of Limiting Instruction To Cure Highly Prejudicial Misconduct During Summation/Closing Argument].

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

See also generally, NCJIC 305.5.2 [Empirical Research].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 14 - CHAPTER 297

PRACTICE NOTE: Cautionary/limiting instructions may actually heighten the prejudice that they were meant to alleviate. (See e.g., People v. Garcia (CA 1984) 160 CA3d 82, 93 [206 CR 468] ["A strong argument can be made that [an admonition to disregard the defendant's courtroom behavior] does little to dispel prejudice and instead only serves to emphasize an unruly defendant's conduct"]; see also U.S. v. Brawner (DC Cir. 1994) 32 F3d 602, 605 [defense counsel should be free to make as little of the admission by defendant of a prior felony conviction as possible].) As a matter of trial strategy, it may be decided that a limiting instruction would only serve to emphasize the conviction, and hence no admonition may be requested. (Ibid.; see also People v. Elmore (MI 1979) 285 NW2d 417, 420 [trial court properly refused defense request for cautionary instruction because it would emphasize defendant's outburst].)

    "One experienced judge has compared a limiting instruction to an act of throwing a skunk into the jury box and telling the jury not to smell it." (Alexander, MAINE JURY INSTRUCTIONS MANUAL 4-14 [Limited Purpose Evidence-Limiting Instructions] (Lexis, 1999). This merely emphasizes the need to balance the need for limiting instructions against the risk of prejudice. The primary prejudice is that the limiting instruction may give undue significance to the evidence in the jury’s mind. (Ibid.)

    See also NCJIC 26.5.3.2 [Ineffectiveness Of Limiting Instruction As To Uncharged Acts Or Crimes].

    See also NCJIC 272.5.4 [Inability Of Limiting Instruction To Cure Highly Prejudicial Misconduct During Summation/Closing Argument].

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

  VOLUME 14 - CHAPTER 297

APPELLATE PRACTICE NOTE: The failure to caution the jury regarding the defendant's failure to testify has been held to be reversible error. For example, U.S. v. Patterson (9th Cir. 1981) 648 F2d 625, 631, reversed for failure to caution the jury regarding the failure of the defendant to testify. (See also Ulloa v. State (TX 1995) 901 SW2d 507, 512 [court could not conclude with certainty that consideration of defendant's failure to testify did not result in jury's assessment of at least marginally increased sentence]; State v. Ross (NC 1988) 367 SE2d 889, 893.) In fact, it has been held that such error can never be harmless. (Commonwealth v. Lewis (PA 1991) 598 A2d 975, 981.)

   However, People v. Evans (CA 1998) 62 CA4th 186 [72 CR2d 543] concluded that the error is subject to harmless error analysis. In so doing, the court noted that "if the principal contested issue is identity, the jury may very likely draw inferences adverse to the defendant from his failure to testify as to his whereabouts during the relevant time period." (Evans, 62 CA4th at 198.)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 14 - CHAPTER 297

    297.3.4    Standard Of Prejudice: Instructional Error May Be Prejudicial Even If Claim Is Procedurally Barred By Teague

PRACTICE NOTE: Even if an instructional error is barred by Teague v. Lane (1989) 489 US 288, 310 [109 SCt 1060; 103 LEd2d 334] [stating that "unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules were announced"], the error may still have an impact on other issues.  For example, in Silva v. Woodford (9th Cir. 2002) 279 F3d 825, 850 the instructional issue based on the USSC ruling in Simmons v. South Carolina, requiring that the jury be instructed regarding the defendant's parole ineligibility when future dangerousness is at issue and the jury's only two alternatives are LWOP and death, was held to be Teague-barred.  However, the court still considered the instructional error as follows: "Nevertheless, we find Simmons and Kelly to be relevant to our [prejudice] analysis, insofar as they indicate the seriousness of the prejudice that may have arisen in conjunction with [trial counsel's] deficient performance at trial [in failing to investigate and present available evidence in mitigation].  The trial judge's refusal to provide additional instruction when requested by the jury may indeed have served to compound the effect of [trial counsel's] deficient performance."  (Silva v. Woodford, 279 F3d at 850.)