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Keep the skunk out of the jury box, and the taint out of the judge’s subconscious

Jun 15, 2012 Keep the skunk out of the jury box, and the taint out of the judge’s subconscious

Trial and appellate judges repeatedly invoke the false incantation that a curative instruction usually will remove even the otherwise most damaging taint to jurors’ ears. Thanks to the D.C. Court of Appeals yesterday for the ready slogans to counter that notion:

As Judge Wilkey wrote for the court in United States v. Walker, 154 U.S. App. D.C. 6, 8, 473 F.2d 136, 138 (1972): The practical consequences of the prosecutor’s breach may not have been easy to dissipate. To quote Judge Gewin’s memorable articulation in Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962), “[o]ne 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.” See also Thompson v. United States, 546 A.2d 414, 425 (D.C. 1988) (quoting Dunn) (internal quotation marks omitted). “Stated more simply, a drop of ink cannot be removed from a glass of milk.” Id. (citation and internal quotation marks omitted).

Clark v. U.S., ___ A.2d ___ (D.C., June 14, 2012). 

Similarly, trial and appellate judges repeatedly allow judges at non-jury proceedings to let in evidence that would be inadmissible before jurors, under the psychological fiction that judges — humans all — can fully disregard information they should not consider.

Thanks again to Clark for the following retort:

The [trial judge] is presumed to have a trained and disciplined judicial intellect, which in a nonjury trial can receive evidence, rule on its admissibility, and discard from his eventual decision on the merits that evidence which he has ruled to be inadmissible for the purposes of his decision. This mental discipline is supposed to be part of the resources which the trial judge brings to his task . . . . Nevertheless, the court added [T]he disciplined judicial mind should not be subjected to any unnecessary strain; even the most austere intellect has a sub-conscious. Id. 

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