Evidentiary Instructions and the Jury as Other
Sklansky, David Alan, Stanford Law Review
INTRODUCTION I. THE NAIVE ASSUMPTION REVISITED A. Unringing the Bell B. The Story Model C. Mock Jurors II. THE PROCEDURAL IMPERATIVE REEXAMINED A. The Consequences of Inefficacy B. The Consequences of Imperfection III. EVIDENTIARY INSTRUCTIONS RECONSIDERED A. Evidentiary Instructions and Rules of Practice B. Jury Trial in the Realm of the Imperfect CONCLUSION
Evidentiary instructions, also called curative instructions, are a familiar feature of American trials. They come in two varieties. An "instruction to disregard" tells jurors to ignore particular evidence to which they have been exposed; it is used when the judge determines that a bit of testimony or an exhibit is inadmissible, but the jury has already heard or seen it. A "limiting instruction" tells jurors not to use a particular piece of evidence to draw a certain inference, although they are free to use the evidence in other ways. Limiting instructions are used when, as is often the case, the rules of evidence make particular testimony or a particular exhibit inadmissible, but only for a particular, forbidden purpose, or only against certain parties and not against others. The hearsay rule, for example, often makes something said outside of court inadmissible, but only if the statement is used to prove the truth of what it asserts, and not if the statement is offered into evidence against the person who uttered it.
There are two well-known facts about evidentiary instructions of both varieties. The first is that our system relies heavily on these instructions. The second is that they do not work. Courts "presume" that juries follow evidentiary instructions, as well as other instructions from the judge. This presumption is often said to be a "premise upon which our jury system is founded." (1) But the presumption is also widely acknowledged to be false, a kind of professional myth. The most frequently quoted assessment of evidentiary instructions is Justice Jackson's: "The naive assumption that prejudicial effects can be overcome by instructions to the jury, all practicing lawyers know to be unmitigated fiction." (2) Juries are "presumed" to follow evidentiary instructions (3) not because we believe that they really do, but because trusting them to do so is a practical necessity. (4)
One is reminded of the cartoon characters who run off cliffs but stay suspended as long as they do not look down--or of the joke at the end of Annie Hall, about the man who thinks he is a chicken and whose family keeps it quiet because they need the eggs. We rely on evidentiary instructions, even though we know they are ineffective, because our whole system depends on them. We are in a kind of denial, acting as though if we ignore the uncomfortable truth, it will go away.
All of this is, as I say, well known. But it is also wrong, or at the very best doubtful. There is little reason to assume evidentiary instructions are ineffective, whatever "all practicing lawyers" are thought to know. Nor is faith in the effectiveness of evidentiary instructions an unavoidable imperative of the jury system. We think that the effectiveness of evidentiary instructions is a myth. But we have it backwards. The real myth about evidentiary instructions is the widespread, rarely questioned faith that evidentiary instructions cannot work, but that we must continue to rely on them. The real myth is not a comforting fable. On the contrary, it makes our situation out to be worse than it really it is.
Why we would believe a myth like that is an interesting question, to which I will offer a tentative answer. My foremost objectives here, though, are more pragmatic: to cast doubt on the consensus view of evidentiary instructions, and to suggest that it is not just false but harmful. The reality is, first, that evidentiary instructions probably do work, but imperfectly, and better under some conditions than others; and, second, that we probably could get along fine without trusting in evidentiary instructions, and certainly without believing that they work flawlessly. …