Bells, sabres, and skunks

So, I’m objecting to a piece of evidence that the prosecution wants given to the members.  The objection is that the evidence contains inadmissible material.  The TC says, well that’s OK, give it to them with a limiting instruction.  So I say, wait a minute.  This is different to the situation where something is testified to and now we have to deal with it – unringing the bell and all that.  This is a situation where the TC wants to knowingly ring the bell, but “cure it” with a limiting instruction.  The MJ thought and had the exhibit redacted – phew.  So remember that phrase “you can’t unring the bell.”

So, a little while later the TC wants to admit another exhibit, same issue and concerns.  Only this is a skunk in the jury box.

So, here’s one of my favorite quotes:

In every case involving improper argument of counsel, we are confronted with relativity and the degree to which such conduct may have affected the substantial rights of the defendant. It is better to follow the rules than to try to undo what has been done. 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 F.2d 883, 886 (5th Cir. 1962).

See further:

Diamond Shari Seidman, and Neil Vidmar, Jury Room Ruminations on Forbidden Topics, 87 VA. L. REV. 1857 (2001); Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b) and 609(a), 38 EMORY L.J. 135, 175-78 (1989) (discussing studies on curative instructions and noting that “[t]he empirical research demonstrates that jurors are deeply affected by prejudicial comments and evidence and that curative instructions tend to increase the prejudice rather than decrease it. Moreover, the research shows that the impact is much greater in weak cases than in strong ones.”).

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