I was going through a couple of old cases looking for some information to use in a current case. Here’s a interesting curative instruction. Coming across this lead me to muse about how strange and how frequently seasoned law enforcement witnesses “forget” that there are certain words or issues they are not supposed to testify about. It’s gotten so bad that I have a standard motion in-limine on HLD. Here’s how one judge dealt with a forgetful law enforcement witness (after he’d agreed with my motion in-limine that the law enforcement witnesses should be instructed on HLD stuff prior to testifying).
The “error” came out in the witness’s first sentence.
MJ: Please be seated. The court will come to order.
MJ: Okay. Members, it was early in the morning, and I wasn’t sure what word WITNESS had used, but counsel confirmed for me that she did say the word, “Polygraph.” The President of the United States, the Military Rule of Evidence that’s in the Manual for Courts-Martial, has decided that the results of a polygraph are so unreliable that the result cannot be used in any way, shape or form in a trial by court-martial. You are officers under the command of the Commander in Chief, the President of the United States, as am I, as are most of the counsel in this courtroom. We have an obligation to follow that order of the President of the United States. The Supreme Court has considered whether or not the President acted reasonably in excluding polygraphs all together from use in trial by court-martial, and the U.S. Supreme Court has decided that the President acted rationally in doing that because polygraph results are not sufficiently reliable enough to be used in a trial by court-martial. So, you must disregard completely what LE WITNESS said to you when she used the word polygraph, and any implication from the use of that one word. Do the members understand that?
PRES: Yes, Your Honor. [Mumblings in agreement from the panel members and positive response.]
MJ: Okay. I have an affirmative response from all members. Now, the Trial Counsel told me that he instructed LE WITNESS specifically not to use the word, “Polygraph,” when she was testifying. My conclusion is therefore that she cannot follow guidance. Therefore, I have excluded her as a witness in this trial. Do the members understand that?[Positive response.]
MJ: If a witness can’t follow that simple guidance, then I don’t care to hear from her, and I don’t believe you ought to hear from her. Do any of the members have any trouble with that instruction? Can you completely ignore the use of the word, “Polygraph?” [Positive response.]
MJ: I have an affirmative response from all members. Okay. Government, call your next witness please.
The military judge did not grant a mistrial, partly because the trial counsel gave a proffer of expected testimony and it was all bad for the defense. So the military judge’s rationale was that we’d benefitted by the witness’s mistake. I’m still not sure that was the correct way to evaluate any prejudice because the members basically got to hear that the client had failed a polygraph. And this was after the witness had been instructed on not to talk about the polygraph.