• November 14, 2014

While I love nearly everything about our system of justice, and those who labor in its fields, one occasional exception for me has been the “legal fiction”.  Pick your favorite. There are many examples.  To name a few of current significance:   The corporation as “person”, and money as “speech”.

One of the most laughable of legal fictions, is also one of our oldest.  The bane of trial lawyers everywhere.  It is the “curative jury instruction”.  I was reminded of this last weekend while reading a Pioneer Press account of a local criminal trial in progress. (While the story inspired me to jot this post the same day, I delayed its publication until the trial was complete. The jury delivered its guilty verdict after two hours of deliberation on Wednesday.)

In the Dakota County criminal trial reported in the Press, a man was being tried for murdering someone outside a bar.  It is reported that he admits to shooting the victim, but is claiming self-defense.  The prosecutor called the defendant’s former (?) girlfriend to the stand, because she was present for the shooting.  (The girlfriend is involved in another impending criminal murder case with the same defendant, and so was testifying in this one under a grant of immunity.)  According to the news account, the prosecutor asked the witness whether she was aware that the defendant had a gun (not really sure how her prior knowledge of the gun is relevant — but that is another question.)  In response, the witness reportedly stated “The first time I had seen his gun was after he abused me.”  Oops.   Needless to say, the defense moved for a mistrial.  The very fine judge denied the motion, and opted to instead give a “curative instruction” to the jury, telling them to disregard this information. (The reporting on the ultimate verdict leaves one with the impression that the evidence of guilt was overwhelming.)

Is there anyone out there that doubts this witness’ response to this question was prejudicial to the defendant and that such an instruction does not honestly cure that problem?  The cure is a pure fiction.

The thing about legal fiction is that they are notions usually developed to serve some interest other than truth or justice.  This particular one is no doubt designed to make the “administration” of justice less time and resource consuming.  A new trial would be costly and it seems like it would be unlikely to produce a different result if the case against the defendant was as strong as the later press reports suggest.  But most of us would agree that our justice system is not about guaranteeing just outcomes. The human factor inherent in our justice system prevents any such guarantee.  Nonetheless, we can strive to provide (and even guarantee) a fair process.  I am all for considering the interests of the “administration of justice” in the day to day decision making of our courts. We must be practical too. But I must confess that I am still uneasy whenever the “administration” consideration wins over the “justice” part.

In situations like this, we should always be on guard not to take our legal fictions too seriously.  Sometimes we should free ourselves of the shackles of our legal knowledge, training and sophistication.   Perhaps what we need is to apply a bit of good old fashioned non-legal common sense.  The legal process can be resource consuming, but it is in assuring a fair trial even for the evidently guilty, that we most perfectly achieve something we can call justice.

By Michael W. Unger

Mr. Unger, of Unger Law Office in Minneapolis, is a certified civil trial specialist who represents plaintiffs in personal injury, wrongful death and medical malpractice cases.

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