Non curative instructions

I have posted – perhaps ad nauseum – about objecting to context setting testimony of law enforcement witnesses: it allows the prosecution to smuggle in all kinds of hearsay and objectionable information, designed to affect the members.

The typical answer to this skunk thrown in the “jury box” is not to ask the members not to smell it, but to them not to smell it by way of a curative instruction.  I’ve also – again ad nauseum – commented that so-called curative instructions are not likely effective.

So,  the 6th has addressed the issue in United States v. Nelson.  Like the errors of context information there is, to quote, an avoidable problem.

[T]o the extent the jury needed to hear about what prompted the police action, a less-detailed statement indicating that the police received a 911 call, without detailing the [anonymous] caller’s description, would have avoided the prejudice problem while still ensuring that the jury was given the minimal background information needed to understand why the officers behaved as they did. For example, the officers could have testified that they were responding to an anonymous complaint of illegal activity in the area, or that they were responding to a report of a suspicious individual believed to be dangerous.

So, you need also be paying atention to the motion in-limine to exclude such context information, objecting should it come out, but also pay attention to any type of “curative” instruction the military judge wants to give.


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