Evidentiary instructions and the jury as other.

• Author: Sklansky, David Alan

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 INTRODUCTION

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. The conventional wisdom about evidentiary instructions--"of course they don't work, but we have to pretend that they do"--spares us the messy but important task of assessing when evidentiary instructions are most likely to fail, how they can be made more effective, and what should follow from a recognition that they work, at best, imperfectly. It has made it easier, for example, to tolerate evidentiary instructions that are incoherent or senseless. They seem no worse, or less likely to be effective, than evidentiary instructions in general. All of this may help to explain why the conventional wisdom about evidentiary instructions, although far from comforting, has stayed conventional. It simplifies things. That will be part of my tentative answer to the "why" question.

More speculatively, I will suggest that the we-need-the-eggs view of evidentiary instructions is part of a broader way of thinking about juries that holds deep appeal but that we would do well to jettison: the notion that juries are something other than groups of human beings called together to sit in judgment, that trial by jury is something other than trial by people, that the jury is not a workaday committee but a kind of intuitive, unmethodical, prediscursive oracle--the "voice of the community." This almost-mystical picture of the jury allows trials to function in the way that ordeals used to function, as what James Whitman calls "moral comfort procedures"--a means of "spar[ing] human beings the responsibility for judgment." (5) But using juries in this way means salving our consciences with a fable. Thinking about juries as groups of people--inherently flawed, just as people are inherently flawed, but capable of reason, just as people are capable of reason--would allow us to think more sensibly, and more responsibly, not only about evidentiary instructions but about adjudication more generally.

Part I of this Article will address the effectiveness of evidentiary instructions--the myth of their obvious futility, and what we know about their actual efficacy. Part II will discuss how necessary it is to rely on them and will question the widespread assumption--often repeated, but rarely examined--that faith in the effectiveness of evidentiary instructions is fundamental to our whole system of trial. Part III will describe the costs of continuing to treat evidentiary instructions as measures that obviously do not work but that we need to pretend do work: the important issues that this unduly pessimistic pair of beliefs keeps off the agenda, and the way that these beliefs tie into, and help to reinforce, an unhelpful, quasi-magical view of the jury.

1. THE NAIVE ASSUMPTION REVISITED

   The "naive assumption" that Justice Jackson famously criticized--the assumption "that prejudicial effects can be overcome by instructions to the jury" (6)--is an assumption that, in truth, has remarkably little currency. It is not just practicing attorneys who think this assumption transparently false; judges and scholars tend to be equally confident that evidentiary instructions cannot work. Appellate judges frequently invoke the principle that juries follow their instructions, but typically they take care to label it a "presumption," not an "assumption," rooted in convenience, not in belief. (7) And judges have been responsible for what are probably the bluntest assessments of the presumption's veracity. Justice Jackson's epithet--"unmitigated fiction"--is far from the harshest thing judges have said about evidentiary instructions. That honor would probably go to "judicial lie," one of the descriptions used by Judge Jerome Frank. (8) Judge Frank also compared evidentiary instructions to "exorcising phrases intended to drive out evil spirits; ... no longer believed in, yet an inextricable part of a conventionalized system of observances." (9) Judge Learned Hand, while resigned to limiting instructions as a practical necessity, thought it plain that they could not work; they asked jurors to perform "a mental gymnastic which is beyond, not only their powers, but anybody's else." (10) That assessment, along with those of Judge Frank and Justice Jackson, has become a familiar piece of jurisprudential lore, often quoted and rarely questioned. (11) Scholars invoke these expressions of skepticism almost as often as judges. (12) The predominant view of scholars, both law professors and psychologists, is that evidentiary instructions are exercises in futility. The main title of a frequently cited study--On the Inefficacy of Limiting Instructions--nicely captures the consensus. (13)

   What explains this extraordinary confidence that the evidentiary instruction, a staple of our adjudicatory system, is a kind of procedural "placebo" (14)--that relying on it amounts to believing a "legal fiction"? (15) Three things. First, it has long seemed obvious that jurors cannot forget or ignore evidence once they have been exposed to it. There is no end to the metaphors judges have used to express this concept: "one cannot unring a bell"; (16) "[a] drop of ink cannot be removed from a glass of milk"; (17) "after the thrust of the saber it is difficult to say forget the wound"; (18) "if you throw a skunk into the jury box, you can't instruct the jury not to smell it." (19) The idea is always the same: jurors cannot forget evidence they have seen or heard, and neither can they "fractionate evidence into competent and incompetent segments, using only the former in [their] decision making process." (20) In fact, trying to do so is likely to prove counterproductive, serving only to highlight the evidence--like asking someone not to think of a white elephant. (21) Second, particularly among scholars, this common-sense notion that juries cannot wipe their minds of what they have seen or heard has been supplemented and strengthened by a particular set of ideas about how juries operate, the "story...