CURATIVE AND CAUTIONARY INSTRUCTIONS
From MN Bench Book - Trial Procedures & Practices for Judges
When inadmissible and prejudicial evidence (i.e. testimony about a prior arrest of a defendant by a testifying officer) is offered and a trial judge intends to give an instruction to the jury to disregard it, the instruction is curative.
See Minnesota Practice Series - Jury Instruction Guides – Criminal, for cautionary instructions to be given when certain types of testimony is elicited by the state in a criminal case or offered by the defendant.
When properly admitted evidence, for example Spreigl evidence, also has a potential for inappropriate use by the jury, the trial judge should give a cautionary instruction.
See CRIMJIG 2.01 and 3.16, which ordinarily are given in connection with the introduction of Spreigl evidence.
See also CRIMJIG 2.02, Cautionary Instruction - Use of Prior Conviction - Impeachment which is to be given when the state introduces evidence of a prior conviction of the defendant to impeach the defendant's credibility if the defendant testifies.
Obtain Defendant's Permission & Agreement to Give a Cautionary or Curative Instruction
Prior to giving a cautionary or curative instruction the court should, on the record but outside the presence of the jury, ask the defense attorney and the defendant if they would like such an instruction to be given.
Impact of Cautionary Instructions on Procedural Posture
- Ordinarily it is not plain error for the trial court to fail to sua sponte give a curative or cautionary instruction.. In the absence of a request for a cautionary instruction, courts are hesitant to, sua sponte, give an instruction because an instruction may draw additional attention to potentially prejudicial issues. A no-adverse inference instruction regarding a defendant's decision not to testify draws attention to defendant's silence and should not be given absent a request. A defendant may choose not to request an instruction for strategic reasons.
- The giving of a cautionary or curative instruction by the trial court is a significant factor favoring the denial of a motion for a mistrial.
A. Cautionary Instructions
Some of the following instructions and comments courtesy of Judge Gordon Shumaker, Associate Justice, Minnesota Court of Appeals.
- 1. CRIMJIG 2.01: Cautionary Instruction on Receipt of Testimony of Other Crimes or Occurrences – SPREIGL EVIDENCE
- 2. CRIMJIG 2.02: Cautionary Instruction on Use of Prior Conviction for Impeachment
- 3. CRIMJIG 2.03: Cautionary Instruction on Receipt of Prior Inconsistent Statement
- 4. CRIMJIG 2.04: Cautionary Instruction on Computer Generated Animation as Demonstrative Exhibit
- 5. CRIMJIG 2.05: Use of Interpreter
- 6. CRIMJIG 2.06: Cautionary Instruction on Firearms as Evidence
- 7. Cautionary Instruction on Use of Transcript of Tape Recording
- 8. Cautionary Instruction on Redaction of Portion of Video or Audio Tape Recording
- 9.1 Cautionary Instruction Regarding Breaks (CRIMJIG - option 1)
- 9.2 Cautionary Instruction Regarding Breaks (option 2)
- 10. Cautionary Instruction on Non-Hearsay 911 Calls
- 11. Cautionary Instruction on Non-Hearsay Statements
- 12. Cautionary Instruction on Receipt of Relationship Evidence
- 13. Cautionary Instruction on Credibility of Witnesses (Informant)
- 14. Cautionary Instruction on Testimony of Informer
- 15. Cautionary Instruction on Credibility of Witnesses (Immunized Witness)
- 16. Cautionary Instruction on Consultation at the Bench
- 17. Time Schedule/Hardship “Pep Talk”
- 18. The “Lawyers Pressure” Voir Dire Advisory
- 19. “Purpose of Voir Dire” Advisory
- 20. The “Bench Conference” Advisory
- 21. The “Keep An Open Mind” Instruction
- 22. The “Media Cautionary” Instruction
- 23. The “Housekeeping Informational” Advisory
1. CRIMJIG 2.01, Cautionary Instruction on Receipt of Testimony of Other Crimes or Occurrences – SPREIGL EVIDENCE
The State is about to introduce evidence of occurrences on ______________________ at_______________________. This evidence is being offered for the limited purpose of assisting you in determining whether the defendant committed those acts with which the defendant is charged in the complaint. [This evidence is not to be used to prove the character of the defendant or that defendant acted in conformity with such character.] [In other words, this evidence is not to be used by you to infer from this conduct that the defendant was disposed to commit the crime for which he is now on trial.]
The defendant is not being tried for and may not be convicted of any offense(s) other than the charged offense(s). You are not to convict the defendant on the basis of occurrences on _______________________ at ____________. To do so might result in unjust double punishment.
2. CRIMJIG 2.02: Cautionary Instruction on Use of Prior Conviction for Impeachment
The evidence concerning a prior conviction of (the defendant) (_______________) is admitted only for your consideration in deciding whether (the defendant) (__________________) is telling the truth in this case. You must not consider this conviction as evidence of (the defendant's) (__________________) character or conduct except as you may think it reflects on believability.
3. CRIMJIG 2.03: Cautionary Instruction on Receipt of Prior Inconsistent Statement
The evidence that has just been received concerning a statement that ______________________ is alleged to have made sometime before testifying here is admitted only for the light it may cast on the truth of ______________________'s testimony at this trial. You must not consider the statement as evidence of the facts referred to in the statement.
4. CRIMJIG 2.04: Cautionary Instruction on Computer Generated Animation as Demonstrative Exhibit
[The State] [Defendant] is about to introduce a computer-generated animation. This does not serve as proof of any facts in itself. It is presented only to aid your understanding of a witness' testimony or other evidence here in court. If the animation is not consistent with your evaluation of the testimony or other evidence, you should disregard the animation and determine the facts from the underlying testimony or other evidence
5. CRIMJIG 2.05: Use of Interpreter
[[Name of language] may be used during this trial.]
Minnesota law provides that a defendant who cannot fully understand or participate in legal proceedings because of a difficulty speaking or comprehending English must be provided a qualified interpreter. This is because a defendant who lacks an understanding of the legal proceedings surrounding [her] [his] case cannot assist in the defense, challenge the accusers, and make informed choices regarding [her] [his] fundamental rights. It is through the use of qualified interpreters that defendants who cannot fully understand English are afforded the same fair treatment and opportunities in their defense as English speaking defendants.
[The state policy is to use [interpreters] [translators] where it is the judgment of the court that it is necessary to ensure fairness in a trial.]
[(Name of person) speaks and understands some English, but it is my judgment that (his)(her) understanding of English is not sufficient to ensure that (he) (she) has a full understanding of the proceedings. I have therefore authorized the use of [an interpreter] [a translator] in this case.]
[The decision to use [an interpreter] [a translator] is my decision.]
[[An interpreter] [A translator] is necessary for a defendant to understand everything that is said in the courtroom. The court instructs the [interpreter] [translator] to interpret every word that is said.]
[The use of [an interpreter] [a translator] may make the case take longer than it would without [an interpreter] [a translator]. You should not hold this against the defendant.]
6. CRIMJIG 2.06: Cautionary Instruction on Firearms as Evidence
At some point in this trial a firearm may be brought into the courtroom and offered as evidence.
The following rules will be followed by all individuals handling the firearm.
- The firearm will come into the courtroom unloaded and secured with a device that will be visible to you and the court.
- The firearm securing device will be such that it will physically impossible to operate the firing mechanism of the firearm or put a bullet into the firearm.
- The firearm securing device will be locked and the key will be maintained by court staff.
- The firearm will be under the control and possession of a court staff person.
- The firearm will always be handled by the barrel and, when handled, will always be pointed at the floor or the ceiling.
- The firearm will be handed to a person, other than court staff, in the courtroom only with the previous express permission of the court.
7. Cautionary Instruction on Use of Transcript of Tape Recording
You will each be provided with what is reported to be a transcript of the taped conversation. Because of the nature and quality of the tape, portions of the recording are difficult to hear from a distance. As a result, copies of the transcript will be provided to you to assist you in listening to the tape and will be collected from you at the conclusion of the playing of the tape. Any difference in understanding of meaning or meaning what was said may be caused by such factors as the inflection of a voice or inaccuracies of the transcript, and you should rely upon what you hear rather than what you read if you find a difference between the tape and the transcript. The transcript is not to control. The tape recording is to control. The transcript will not be available to you during your deliberations in reaching a verdict.
8. Cautionary Instruction on Redaction of Portion of Video or Audio Tape Recording
Ladies and Gentleman, as I’m sure you noticed, a portion of the audio/video tape-recording that you just heard/viewed was redacted. I earlier ordered and both parties agreed that a designated portion of the audio/video tape be deleted. It was deleted because it had nothing to do with the issues in this case. You should not speculate concerning that deletion and you are ordered to draw NO inference one way or the other concerning the deletion.
9.1 Cautionary Instruction Regarding Breaks (Lunch and Recesses)
We will now (recess for ___ minutes) (adjourn for the day). I want to remind you of the instructions I gave you earlier regarding your conduct as jurors. Please these in mind each time we recess and when we adjourn for the day. While I will try to repeat the instructions to help you remember, I may not always do so. This does not mean they do not apply.
Do not let outsiders influence you.
Do not discuss this case with other jury members during the trial.
You will have plenty of time to do this at the end of the trial, once you have all the evidence, and I have sent you to the jury room with my instructions and the verdict forms.
Do not talk to anyone involved in this case, the defendant, the lawyers, or the witnesses.
If anyone tries to discuss this case with you outside the courtroom, report this to me.
When you go home during the trial, do not talk to your family, friends, or others about the case. You may tell them you are a juror on a criminal case and that is all that you should tell them. Do not report your experiences as a juror while the trial and deliberations are going on. Do not e-mail, blog, tweet, text or post anything to your Facebook, MySpace, or other social networking sites about this trial. Do not visit any “chat rooms” where this case may be discussed.
Do not read or listen to news reports about the case.
Do not do your own investigation. Do not ask people about this case. Do not visit any of the locations mentioned in the trial. Do not research anything about the case, including the issues, evidence, parties, witnesses, location, or the law, through any form of written, print, electronic or Internet media..
Keep an open mind until you have heard or seen all of the evidence.
Remember you cannot consider anything you hear or learn about this case outside this courtroom.
If you do not follow these instructions, you may jeopardize the trial. This may require the whole trial to be redone and we will have to start over.
9.2 Cautionary Instruction at First Recess or Adjournment for the Day and During Deliberations If Not Sequestered
Please remember, while court is in recess you must not talk to anyone who is involved in this case nor shall you discuss the case among yourself. During the recess you may see the attorneys, parties, witnesses or myself in the hallways or outside. Don’t take offense if we don’t stop to say hello or talk with you. Everyone involved in this case has been ordered to have no contact or communication with any member of the Jury. Any violation of that order could jeopardize this trial. This prohibition shall continue until a verdict has been returned.
10. Cautionary Instruction on Non-Hearsay 911 Calls
You will now hear a tape recording of a conversation between ___________________________ and a 911 operator. This conversation is to be considered by you only for the purpose of establishing what the police officers reasonably believed had occurred on the evening of ________________________.
11. Cautionary Instruction on Non-Hearsay Statements
You will hear testimony in this case about statements made by ________________ to the police. These statements are to be considered by you only for the purpose of establishing what the police officers reasonably believed had occurred on the evenings of ______________ and __________________. You cannot consider these statements as substantive evidence of the defendant's guilt.
You are about to hear testimony about a statement made by_____________________ to _____________________________. This statement is NOT being admitted for the purpose of proving any particular fact. This statement may be considered by you only for the purpose of establishing what _______________________________reasonably believed on ___________________________ (OR) “for the purpose of establishing what _______________________’s state of mind was on _______________________.
12. Cautionary Instruction on Receipt of Relationship Evidence
The State is about to introduce evidence of an occurrence on __________ at _______________. This evidence is being offered for the limited purpose of assisting you in understanding the background of the relationship between the defendant and some of the witnesses. Defendant is not being tried for and may not be convicted of any offense other than the offense charged in the complaint.
13. Cautionary Instruction on Credibility of Witnesses (Informant)
The testimony of an informant, someone who provides evidence against someone else for money, or to escape punishment for [his] [her] own misdeeds or crimes, or for other personal reason or advantage, must be examined and weighed by the jury with greater care than the testimony of a witness who is not so motivated. _______________ may be considered to be an informant in this case. The jury must determine whether the informer's testimony has been affected by self-interest, or by the agreement [he] [she] has made with the government, or [his own] [her own] interest in the outcome of this case, or by prejudice against the defendant.
14. Cautionary Instruction on Testimony of Informer
You have heard evidence that Anthony Wallace has an arrangement with the government under which he receives consideration in a plea agreement for providing information to the government. His testimony was received in evidence and may be considered by you. You may give his testimony such weight as you think it deserves. Whether or not his information or testimony may have been influenced by receiving consideration in a plea agreement is for you to determine.
15. Cautionary Instruction on Credibility of Witnesses (Immunized Witness)
The testimony of an immunized witness, someone who has been told either that [his] [her] crimes will go unpunished in return for testimony or that [his] [her] testimony will not be used against [him] [her] in return for that cooperation, must be examined and weighed by the jury with greater care than the testimony of someone who is appearing in court without the need for such an agreement with the government.
______________ may be considered to be an immunized witness in this case. The jury must determine whether the testimony of the immunized witness has been affected by self-interest, or by the agreement [he] [she] has with the government, or by [his own] [her own] interest in the outcome of this case, or by prejudice against the defendant.
16. Cautionary Instruction on Consultation at the Bench
During the course of the trial there have been consultations at the bench or in the chambers of the Court. Our consultations have been so held to prevent you from considering matters which should not come before you in the trial of this case. You may rest assured that we have not concealed from you anything which in the opinion of the Court was proper or necessary for you to hear in order to properly perform your duties as jurors in this case.
17. Time Schedule/Hardship “Pep Talk”
Ladies and gentlemen, we all recognize that jury duty is inconvenient in the sense that it takes you away from your ordinary daily routine.
But it is an important public service because our system of justice depends on having a mixture of people of different backgrounds, genders, and ages decide our cases.
The vast majority of people who have served on juries have found the experience to be highly rewarding. So, we do not lightly excuse people from jury service. We do so only for the most critical schedule problems or the most serious hardship.
Does anyone on the panel have such a problem or hardship that no matter how hard in good faith you might try, you will not be able to resolve it?
Note: The purpose of the instruction is to encourage prospective jurors to not try to avoid jury service for trivial reasons or because of things that, with a little reasonable effort, they can accommodate.
18. The “Lawyers Pressure” Voir Dire Advisory
After I finish my questions, the lawyers have a right to ask questions as well if they wish to do so.
But the law limits them to asking questions to get information from you, and not giving you a lot of details about the case.
So, they won’t be making speeches or arguments or describing the evidence you will hear if you are selected to serve on the jury. All that will come later.
And even-though the lawyers are permitted to follow-up on your answers to my questions, they will do their best to not to be repetitious and to move the process along.
Note: While this advisory is directed to the panel, the lawyers also hear it. The attorneys are more likely to conduct voir dire properly because the prospective jurors know the rules of voir dire.
19. “Purpose of Voir Dire” Advisory
The reason we have this selection process is that we want to select for this case, fair, neutral and open-minded jurors.
By “fair” I mean people who are willing to make a commitment to deciding the case only on the facts presented in the courtroom and on the law as I give to you at the end of the trial. This means not allowing anything other than the facts and the law you learn about in this trial to influence your verdict.
By “neutral,” I mean people who are willing to judge the case without starting out by favoring or disfavoring any party or witness or lawyer, type of case, or issue.
By “open-minded,” I mean people who will make a commitment to withhold their judgment until all the evidence has been presented; until I have given the instructions on what the law is; until the lawyers have given their final arguments; and until there has been a sincere discussion of the evidence among all the jurors when they deliberate.
Note: My approach to dealing with juries is to keep them as completely informed as possible as to the entire process. This includes telling prospective jurors why we ask questions of them.
20. The “Bench Conference” Advisory
During the trial the lawyers and I may need to discuss something up at the bench. Such bench conferences always involve a question of law or procedure that I as the judge am required to deal with.
You, jury decide the facts and I as the judge decide the law. I can't come into the jury deliberation room because you are discussing and deciding the facts and you can't attend and listen to bench conference discussions on the law. Please don’t try to listen to what we are saying and, above all, do not assume that we are trying to keep evidence from you. When the lawyers and I are at the bench discussing something, that would be a good time for you folks to stand up stretch and chat with the jurors sitting by you. If you do chat, remember you can talk about anything except the case.
Note: Bench conferences are puzzling to juries. So, this advisory is intended to tell the jury what the conferences are all about. Also being able to stand and stretch and chat during bench conferences will increase the jury's ability to stay awake and alert.
Note: At the first bench conference it is likely the jury will not follow your directions above about stretching or chatting. As the lawyers are approaching the bench, turn to the jury and remind them that this the time for them to stretch or chat.
21. The “Keep An Open Mind” Instruction
It has been suggested that jurors likely make up their minds after hearing opening statements or just certain portions of the case. I don’t think that’s true, but I want to remind you to keep an open mind throughout the entire trial.
Under our system of justice, a fair verdict can be reached only if the jury has all the ingredients necessary to do so.
So, it is not until you have heard all of the evidence in the case, and the lawyers’ final arguments, and my instructions as to the law you must apply, and you have discussed and analyzed the evidence as a group of jurors that you have all the ingredients necessary to reach a fair verdict.
Note: Just like judges, I think jurors will lean one way or another during the trial, but this instruction reminds them that they have to wait until all ingredients are present before finally making up their minds.
22. The “Media Cautionary” Instruction
It is possible that there will be reports about this case or some aspect of it in the media.
You must strictly and absolutely avoid reading, watching, or listening to any such reports. Likewise, you must not permit anyone who has read, heard or seen such a report to tell you anything about it or to ask you any questions about the case.
The system of justice in which you are directly participating now as jurors under oath is the result of experiment and refinement for over 200 years of our legal history.
This system is carefully designed to bring you evidence that can be tested for accuracy and reliability in this courtroom and in your presence. You can then be assured that you are basing your verdict only on evidence you have found to be trustworthy.
Accounts in the media have no guarantees of trustworthiness, and there is no way for you to determine their accuracy and reliability. To use such accounts in any way will distort the system of justice, violate your oath, and possibly produce an unfair, unjust result.
Please, therefore, strictly honor your sworn duty to decide this case only on what you see and hear in this courtroom and avoid anything from the media or any other outside source.
Note: Media coverage is always potentially problematic. This instruction is intended to emphasize the jurors’ oaths and that the only venue for reliability evidence is the courtroom itself.
23. The “Housekeeping Informational” Advisory
Ladies and gentlemen, the lawyers and I have discussed the schedule for this trial and I want to tell you what it is.
Each day we are in trial, we will begin at 9:00 a.m. You should be seated in the jury box by that time. We will take one or two morning breaks and will recess at noon. We will resume at 1:30 and conclude at 4:30, with one or two afternoon breaks before we finish.
We will do our very best to follow this schedule so that you can rely on it. Sometimes an emergency or some other unforeseen interruption will require us to alter that schedule. If that happens, I will give you notice as soon as possible.
Note: There is nothing sacred about the text of this advisory. Its purpose is simply to be respectful to the jurors and let them know generally the times they can expect to be in court. It accords with my theme of keeping the jury informed about all aspects of the process.
B. Curative Instructions
This section on how a jury is to disregard something that was said or displayed in the presence of the jury, was written by Judge Gordon Shumaker, retired judge Minnesota Court of Appeals
1. Instruction to Disregard Previous Testimony or Behavior
If I tell you to disregard an answer, other testimony or brhavior you have already heard or seen, you must do so. Such testimony or behavior is no longer a proper part of the case and you cannot fairly consider it as such.
You might wonder how you can disregard something you have already heard.
Here is a way to do it:
At the end of the trial, back in the jury room, you will likely tally up, or summarize, all the evidence in the case. From that evidence alone you will decide upon a verdict.
Anything I have told you to disregard will simply not be included in the evidence upon which you base your verdict.
It will not be part of your discussions and you will not use it in any way. In that sense, you will have disregarded the item.”
Note: Sometimes it will be necessary to explain to the jury, in a fair and neutral way, how it may go about following the court’s instructions. Telling the jury to disregard testimony the jurors have already heard is one of those times. “Disregard” is not tantamount to “erase from memory, “ or “pretend you did not hear.” But, without some help, jurors might well believe that is what the court is asking them to do. Obviously, some evidence might be so inflammatory that a disregard instruction would not be realistic. A mistrial is likely the only option then. Carefully consult the mistrial cases before granting that very drastic relief.
- State v. Strommen, 648 N.W.2d 681
- State v. Darris, 648 N.W.2d 232 Minn.,2002. The trial court erred in giving the jury instruction on a defendant's right not to testify without appellant's permission on the record
- State v. Vick, 632 N.W.2d 676(Minn.2001)
- McCollum v. State, 640 N.W.2d 610(Minn.2002)
- State v. Jones, A08-1235 (Minn. Ct. App 2009)Trial Court referenced element (felon) that defendant had stipulated to, court gave defendant the option of either mistrial or a curative instruction. Defendant choose curative instruction and claimed court should have sua sponte declared a mistrial. Defendant waive right to have mistrial declared when he choose curative instruction, State v. Caldwell, 322 N.W.2d 574, 590 (Minn. 1982).
- State v. Olkon, 229 NW2d (Minn. 1980); see United States v. McMillan, 508 F2d 101 (8th Cir. 1974).