When Correcting An Evidence Mistake Does "More Harm Than Good"

In trial for conspiring to murder a witness to prevent him from testifying in a state murder trial, assuming error in admitting the testimony of the girlfriend of the deceased victim that she warned the victim that he (the victim) was likely get killed as well if he approached police about witnessing the defendant kill another person, there was no plain error in light of the testimony's unsolicited nature, brevity, overwhelming evidence of guilt, and no substantial rights were affected, and that any "curative instruction could ... have done more harm than good," in United States v. Byers, __ F.3d __ (4th Cir. May 6, 2011) (Nos. 09–4439, 09–4677)

One important lesson in training new lawyers concerns the balance between practical and technical enforcement of the evidence rules. This is particularly so when the error is harmless as a practical matter -- for example, if the challenged evidence is cumulative of other properly admitted evidence, or insubstantial in nature, or stopping proceedings to raise and argue an objection would do more harm than good. Recently the Fourth Circuit considered a case in which the trial court's error in admitting certain testimony against the defendant presented the issue whether correction of the error at the time might cause more harm than good. In essence, whether the practical impact of the error was harmless.

In the case, defendant Byers was charged with a co-defendant as co-conspirators to murder a witness to prevent the witness from testifying against the defendant in a state murder trial. As the circuit succinctly summarized the facts:

The government presented strong evidence tying [defendant] Byers and [co-defendant] Goodman to the killing of Carl Lackl [who had seen the defendant murder a Haynes, who had seen the defendant kill another person in a drug territory fight] ... and offered a motive for the killing: Lackl was the prosecution's primary witness in the upcoming murder trial of Byers for the March 2006 murder of Larry Haynes, and Lackl was expected to be the only witness to place Byers at the scene of that murder. Byers attempted to refute the purported motive by attacking the strength of the state's case against him for the 2006 Haynes murder and the reliability of Lackl [who was a drug addict and on drugs at the time] as an eyewitness. Thus, the identity of Byers as the person at the scene of the Haynes murder became a critical part of the Lackl case. In response to Byers's strategy, the government sought to bolster Lackl's credibility and value as a witness by introducing evidence to prove identity, and hence motive, that Byers had previously shot another person in a drug dispute in the same block on North Montford Street where Haynes was killed.
Byers, __ F.3d at __.


According to the defendant, the trial court erred in permitting testimony from the victim's girlfriend (Humes) that the victim (Lackl) recounted what he saw and "called the police about ten minutes after returning home, despite her warnings not to get involved as it might result in his murder as well." At the time the testimony was admitted, the defendant failed to object, rendering review of the challenge on appeal for plain error.

The Fourth Circuit disposed of the defendant's error claim, essentially on the basis of harmlessness:

Even if we assume that Humes's statement was improper and inadmissible, a district court does not commit plain error merely because it fails to give curative instructions sua sponte any time improper evidence comes out during trial. The unsolicited comment by Humes was brief and, as other courts have observed in similar circumstances, “a curative instruction could easily have done more harm than good by focusing the jurors on [testimony] that they otherwise might have missed or construed as innocuous.” Presumably Byers did not immediately object to Humes's comment because the defense wished to downplay this testimony; a curative instruction could have undercut that very strategy.

Furthermore, even assuming for the purposes of this appeal that the court's failure to act constituted plain error, we find that this error did not affect Byers's substantial rights given the volume of evidence supporting his convictions.
Byers, __ F.3d at __ (quoting United States v. Deandrade, 600 F.3d 115, 119 (2d Cir. 2010) (failure to issue curative instruction sua sponte was not plain error in light of the additional fact that “[t]he government never relied upon the challenged testimony”), United States v. Copeland, 51 F.3d 611, 616 (6th Cir. 1995) (“The defense claims that it did not raise an objection to these comments because ‘[t]o directly object each and every time would have only emphasized the prejudicial matter.’ Arguably, a curative instruction would have emphasized this testimony, and, therefore, would have deprived the defense of its chosen trial strategy. Not issuing the instructions sua sponte under these circumstances was not reversible error.”)).

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