The phrase “cautionary instruction” has no precise definition, but it includes instructions of a general nature designed to guide the jury in its deliberations and to inform and instruct the jurors regarding the emphasis that they may or should place on certain types of evidence. The most common type cautions jurors that certain evidence may be considered only for a limited purpose.71 Another type of cautionary instruction is the type given prior to recesses in the trial. A judge may instruct the jurors that, during the recess, they should not discuss the case amongst themselves or with third parties, they should not read, watch or listen to any reports about the trial that appear in the news media and that they should keep an open mind until all the evidence has been received and the jurors have heard the arguments of counsel and the court’s instructions.
Cautionary instructions may also be designed to protect the parties from prejudice, for example, where a judge instructs the jury about the duty of counsel to object to evidence where appropriate and that the jurors should not allow themselves to become prejudiced against a party or counsel because they object to evidence.72
Giving or refusing to give cautionary instructions and the timing thereof is addressed to the discretion of the trial judge, who is in the best position to determine the effect upon the jury of the specific event.73 Although it is preferable that any cautionary instruction be given at the time of the specific event giving rise to the need for such instruction, it is not prejudicial per se if the instruction is given later.74
71. See D.R.E. 105.
72. See Claudio v. State, 585 A.2d 1278, 1281 n. 4 (Del. 1991).
73. Polk v. State, 567 A.2d 1290, 1293 (Del. 1989); Jardel Co. v. Hughes, 523 A.2d 518, 533 (Del. 1987).
74. Claudio v. State, 585 A.2d 1278, 1281 (Del. 1991); Jardel Co. v. Hughes, 523 A.2d 518, 533 (Del. 1987).
© 2010 David L. Finger