Many attorneys – both defense attorneys and prosecutors – will knowingly try to introduce objectionable material at trial. The reason for this is simple. The attorney believes that the jury has to hear it. It makes a difference in their case, and the effort to introduce it is strategic. Even if it is met with an objection from the other side, and the objection is coupled with a curative instruction from the Court, what often matters is that the jury heard it and they may be thinking about it. The system functions on the assumption that the jury follows the Court’s instructions, and will therefore comply with a curative instruction to ignore what was said. But we all know that in reality, human nature takes over. Regardless of the Court’s instruction to ignore it, there is every reason to assume that what will ultimately happen is that the jury heard the objectionable material and human nature does the rest. This is the reality of a criminal justice system that relies upon the thinking and actions of ordinary people. It may not be consistent with the rules, but the fact is that it happens in criminal trials every day. A good criminal trial attorney will assume that the jury sees, hears and considers everything without exception, even over their objection and regardless of the court’s instructions. (And, by the way, counsel should still object and request the curative instruction. It may not make much of an impact on the jury, but it could be the difference between winning and losing in the Appellate Division.)
The impression that certain objectionable statements made upon the jury was at the heart of the recently decided case of State v. Tung. There the issue was whether the trial court erred in admitting evidence that the defendant exercised his Fourth Amendment right to refuse to consent to a warrantless search; evidence that the defendant exercised his Fifth Amendment right to counsel; and an interrogating officer’s opinion that the defendant lied.
The Appellate Division reversed the defendant’s convictions for murder, aggravated arson, and other offenses. At trial, the jury repeatedly heard that during a pretrial recorded statement, the defendant refused to consent to searches of his property, and had requested counsel. Such references were clearly capable of producing an unjust result at trial because they improperly encouraged the jury to draw negative inferences against the defendant because he had invoked his Fourth and Fifth Amendment rights. The trial court did not excise these references, and did not provide a cautionary/curative instruction.
The jury also repeatedly heard the interrogating officer (stupidly) testify to their personal belief that the defendant had lied when denying guilt in a pre-trial recorded statement. The Appellate court found that it was wrong for the officer to usurp the jury’s credibility determinations.
Tung is the first published opinion in our State to address whether evidence of a defendant’s refusal to consent to a search may be properly admitted at trial. The Court found that because defendants have a Constitutional right to refuse to consent to a search, it is wrong to allow a refusal to consent to be used at trial as evidence suggesting guilt or guilty knowledge. At trial, the interrogating officer (stupidly) suggested that an innocent person would have agreed to a search because the results could clear them of wrongdoing. The officer also (stupidly) said that the defendant refused to consent because he had something to hide. The trial court’s failure to instruct the jury that it should not consider the defendant’s refusal to consent was the last straw, leading to a reversal. But even if the judge would have given a curative instruction, the reality is that the jury still heard it and, from the defense perspective, was left with highly negative impressions that almost certainly would have factored into deliberations with or without an instruction.
At the heart of the case was the impression that improper evidence would make upon a jury, and the negative inferences that such evidence could support. On its most practical level, the case is a reminder that the jury sees and hears it all, and defense counsel should assume that whatever comes out at trial will enter into their deliberations regardless of whether the court instructs them to ignore it.
James S. Friedman, Esq., is a criminal defense attorney with offices centrally located in New Brunswick, New Jersey. Mr. Friedman represents people with criminal charges in all state and federal courts in New Jersey and New York City. If you have a criminal case in one of these courts, call Mr. Friedman to learn about your options, and to start planning your defense.