Prejudicial Evidence Did Not Require A Mistrial Based On Curative Steps

How should the trial court respond when a prejudicial portion of a recording is played for the jury which was intended to be redacted? Will a curative instruction be sufficient or will it over emphasize the error? A Seventh Circuit case highlighted the relevant factors to consider and concluded that a mistrial was not warranted, in United States v. Long, _ F.3d _ (7th Cir. April 1, 2014) (Nos. 11-3888, 12-1048, 12-1267, 12-1538, 12-2665)

When prejudicial evidence that was not intended to be admitted is heard by the jury, under what circumstances is a mistrial required? The Seventh Circuit recently confronted this issue when a recording made reference to a murder that was not part of the drug distribution case.

Trial Court Proceedings: Extra Tape Recordings Not Intended For Trial

Five defendants were prosecuted for their role in a cocaine distribution conspiracy. At trial, the government played a recording during which co-defendant Long talked about a murder with co-defendant Hicks:

The jury heard Long say, “n***a supposed to have killed the m***r on 64th and Aberdeen.” The government intended to redact this portion of the call (apparently considering it irrelevant) but failed to stop the tape in time. The transcripts provided to jurors did not include this segment of the conversation, but they did include Long’s subsequent statement that he would “do any m***in’ thing I need to make money.”

Long, _ F.3d at _. Defendant Long moved for a mistrial contending that the statement about a murder would not allow the jury to fairly consider the case. He added that the "transcript only exacerbated the problem by suggesting that Long would do literally anything, even murder, for
money." In denying the motion for a mistrial, the trial judge concluded that the passing reference was isolated and "would probably not stand out in jurors’ minds" and was unclear whether Long was connected to the murder. The court questioned whether a limiting instruction would otherwise emphasize the statement. The defendant did not request a curative instruction. After his conviction, defendant Long argued on appeal that the trial judge should have granted his motion for a mistrial.

Seventh Circuit Review: A Mistrial Was Not Required

The Seventh Circuit found no error in the denial of the motion for a mistrial. The circuit noted that unique vantage of the trial judge in addressing extraneous or prejudicial evidence that was not intended to be presented. Long, _ F.3d at _ (citing United States v. Collins, 604 F.3d 481, 489 (7th Cir. 2010) (noting that “a mistrial is appropriate when an event during trial has a real likelihood of preventing a jury from evaluating the evidence fairly and accurately, so that the defendant has been deprived of a fair trial.”); United States v. Clarke, 227 F.3d 874, 881 (7th Cir. 2000) noting that trial judges are “in the best position to determine the seriousness of the incident in question, particularly as it relates to what has transpired in the course of the trial.”)).

As the circuit explained, unlike other cases in which a mistrial may have been required, in this trial:

The jury heard Long make a fleeting reference to a murder that was unconnected to the case; the statement was introduced inadvertently and never discussed again over the course of a lengthy trial. Moreover, there was no indication that Long was involved in the killing, whereas the jury heard
dozens of phone calls in which Long explicitly implicated himself in high-stakes drug deals. Since all of Long’s offenses involved dealing drugs, the judge reasonably concluded that these calls—rather than a single unexplained statement about murder—would dominate the jury’s deliberations.

Long, _ F.3d at _.


The Long case provides an example of how to deal with unintended, prejudicial evidence. In Long, the information related to the murder was ambiguous in its particulars. Often a limiting instruction is suggested to ensure the jury does not place undue emphasis on extraneous evidence. However, as noted in the case, sometimes a curative instruction may have the opposite effect, by underscoring the unintended evidence. Most likely, if the defendant had requested a limiting instruction, one would have been given. Of note, the circuit recognized the role of the trial court to address the situation. The isolated reference to the extraneous murder ultimately did not require a mistrial.


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