Delaware Trial Handbook § 25:10. CURATIVE INSTRUCTIONS

A curative instruction is an instruction designed to mitigate the risk of harm resulting from some improper evidence or argument having been presented to the jury before another party has had a chance to object to such evidence or argument and before the court has had a chance to determine the propriety of such evidence or argument. Generally, a curative instruction will be given by the trial judge to the jury following an objection by counsel and a determination that the testimony or argument was improper. In such case, the judge will tell the jury that the evidence or argument was improper and why (provided that an explanation will not be prejudicial) and that the evidence has been stricken and the jury should disregard the evidence or argument and not consider it for any purpose.

Whether to give a curative instruction and when is within the discretion of the trial judge.75 As a general rule, a curative instruction is usually sufficient to remedy any prejudice that might result from the introduction of inadmissible evidence, argument or questioning, at least in the absence of any bad faith on the part of the individual offering the evidence, argument or question.76 This is not true in all cases, however. 77 For example, expert testimony improperly admitted is not cured through jury instructions that authorize the disregarding of expert opinions if the jury rejects the factual basis. Inadmissible facts that form the basis for an expert’s opinion are not simply elements of proof subject to the jury’s “weighing” option.77.1 The general rule is that prejudice must be egregious when a curative instruction is deemed insufficient to cure prejudice to the defendant, i.e., it so clearly prejudices the rights of the defendant as to jeopardize the integrity of the trial process.77.2 The effectiveness of a curative instruction will be determined by both its content and the nature of the objectionable evidence, questioning or argument.78

Any effort to mislead the jury or appeal to its bias or prejudice is inappropriate and, where objection is made, the trial court is obliged to act firmly with curative instructions even where no objection is forthcoming until after summations.78.1

75. Sammons v. Doctors for Emergency Services, P.A., 913 A.2d 518, 539 (Del. 2006); Saunders v. State, 375 A.2d 453, 455 (Del. 1977); Lonergan v. State, No. 197, 1990, slip op. at 6-7, Walsh, 1. (Del. Apr. 3, 1991) (ORDER), disposition reported at 590 A.2d 502 (Del. 1991) (TABLE).

76. McNair v. State, 990 A.2d 398 403 (Del. 2010); Smith v. State, 963 A.2d 719, 722 (Del. 2002); Porter v. Turner, 954 A.2d 308, 314-15 (Del. 2008) (curative instruction cured prejudice from improper reference to insurance); Hendricks v. State, 871 A.2d 1118, 1122 (Del. 2005);  Eskin v. Cardin, 842 A.2d 1222, 1233 (Del. 2004);  Zimmerman v. State, 628 A.2d 62, 66 (Del. 1993); Lewis v. State, 626 A.2d 1350, 1358 (Del. 1993); Koutoufaris v. Dick, 604 A.2d 390, 400 (Del. 1992); Pennell v. State, 602 A.2d 48, 52 (Del. 1991); Robinson v. State, 600 A.2d 356, 360-61 (Del. 1991).

77. See, e.g., Weddington v. State, 545 A.2d 607, 612-15 (Del. 1988) (prosecutor’s improper injection of racial issues into trial not mitigated by curative instruction); State v. Reed, Cr. A. Nos. 90-02-0929-0930, slip op. at 9, Lee, J. (Del. Super. June 26, 1992) (prosecutor’s comment on a criminal defendant’s failure to testify not mitigated by curative instruction).

77.1. Gannett Co., Inc. v. Kanaga, 750 A.2d 1174, 1189 (Del. 2000).

77.2. Ashley v. State, 798 A.2d 1019, 1022 (Del. 2002); Bowe v. State, 514 A.2d 408, 410 (Del.1986).

78. Lonergan v. State, No. 197,1990, slip op. at 6, Walsh, J. (Del. Apr. 3, 1991) (ORDER), disposition reported at 590 A.2d 502 (Del. 1991) (TABLE).

78.1. Estate of Swan v. Balan, 956 A.2d 1222, 1226 (Del. 2008); Sammons v. Doctors for Emergency Services, P.A., 913 A.2d 518, 539 (Del. 2006);  DeAngelis v. Harrison, 628 A.2d 77, 80 (Del.1993).

© 2010  David L. Finger