New Jersey Appellate Division Judge Mitchel Ostrer.

On Jan. 10, 2019, the Appellate Division decided the case of State v. Olajuwan Herbert, Docket No. A-5096-14T1 (approved for publication) in which a detective, testifying as a state witness at the defendant's murder trial, had made reference to the alleged gang membership of the defendant. Albeit the court sustained the defendant's objection to the comment about gang membership, the motion for a mistrial was denied on the ground that the trial judge had cured any prejudice by the instruction to the jury that there was no evidence in the case about gang involvement and that the jury should disregard the statement.

The Appellate Division determined that a new trial was required because the trial court's curative instructions were found to be inadequate to offset the prejudice that was caused by reference to the gang membership of the defendant. In the opinion by Judge Ostrer, it was pointed out that, “There is tension in our case law governing curative and limiting instructions. The authority is abundant that courts presume juries follow instructions.” However, citing former decisions of the United States Supreme Court and the New Jersey Supreme Court, the opinion pointed out that there are times when a limiting instruction cannot genuinely cure the prejudicial affect from the admission of certain evidence. The opinion included a quote from Bruton v. United States, 391 U.S. 123, 135 (1968), where it was stated that “[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure is so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.”

The Appellate Division concluded that the court's instruction did not cure the impact of the prejudicial testimony that the defendant was a gang member and that the homicide had occurred in a gang area. It was found that the testimony of the detective was highly prejudicial and could not be minimized as likely having escaped notice by the jury. Also, it was determined that the prejudicial comments had “filled a hole in the State's case: Defendant's motive for [the killing].” In sum, it was found that the “judge's instructions following gang references missed the target.”

One of the problems with the instruction is that the jury had been informed that there was no evidence adduced in the trial that the defendant was a gang member. The Appellate Division found that that statement was not accurate because there had been testimony by the detective witness that the playground where the event occurred was a gang area and that the defendant, a gang member was involved.” Further, when the court told the jury that there was no information in the case about gang involvement, there was nothing in that instruction that really contradicted the previous testimony and the truth of the testimony of the detective witness.

The Appellate Division concluded that the risk that the jury would not comply with the court's instructions “was intolerably high.” The opinion stated that, “the instructions did not fully and clearly address the prejudicial aspects of the testimony.” Accordingly, the conviction was reversed and the matter remanded for a new trial.

This case contains useful guidance to the bench and bar as to what kind of curative instruction will pass muster in a criminal case. While there is no genuine question that juries will follow instructions to disregard evidence that inadvertently may have been presented, there is also at times some likelihood that the jury will be unable to follow the instructions and a probability that the effect of the evidence would be seriously harmful to the defendant. Judge Ostrer's concluding words are both eloquent and instructive: “An instruction can be curative only if the judicial medicine suits the ailment.” We commend the Appellate Division for its thorough and useful opinion on curative instructions.