Blunting or Extracting the Evidentiary Harpoon

The History of the Evidentiary Harpoon

The problem of law enforcement officers and other prosecution witnesses injecting inadmissible evidence into a criminal trial to prejudice the defense has long been well recognized across the country. “The volunteering by police officers of inadmissible testimony prejudicial to the defendant has been condemned time and again by both state and federal courts.” Gregory v. United States, 369 F.2d 185, 189–90 (D.C. Cir. 1966). In some jurisdictions, courts have acknowledged the “evidentiary harpoon,” which is the effort by a law enforcement officer to place clearly inadmissible information before the jury in an attempt to sabotage the defense and buttress the prosecution’s case. The thrust of an evidentiary harpoon is not limited to law enforcement officers. “An evidentiary harpoon is the placing of inadmissible evidence before the jury with the deliberate purpose of prejudicing the jurors against the defendant.” Kirby v. State, 774 N.E.2d 523, 535 (Ind. Ct. App. 2002); Wright v. State, 325 P.2d 1089, 1093 (Okla. Crim. App. 1958). Regardless of the terminology, there is a danger that experienced law enforcement officers and other prosecution witnesses when testifying will intentionally blurt out inadmissible prejudicial information, even after being warned that such evidence is off limits, influencing the jury against the defendant.

Elements of the Evidentiary Harpoon

The Oklahoma courts have “set out the elements necessary to classify an officer’s statement as an evidentiary harpoon: ‘(1) they are generally made by experienced police officers; (2) they are voluntary statements; (3) they are willfully jabbed rather than inadvertent; (4) they inject information indicating other crimes; (5) they are calculated to prejudice the defendant; and (6) they are prejudicial to the rights of the defendant on trial.’” Anderson v. State, 704 P.2d 499, 501 (Okl. Crim. App. 1985) (quoting Bruner v. State, 612 P.2d 1375 (Okl. Crim. App. 1980)). Under Oklahoma’s criteria, any unresponsive comment by a prosecution witness may qualify as an “evidentiary harpoon” by injecting inadmissible evidence prejudicial to the defense, although not necessarily evidence of other crimes, into the minds of the jurors.

A prosecution witness’s blurting out of prejudicial, inadmissible evidence is a harpoon that pierces the defense’s case and inflicts traumatic injury on its target that is difficult to dislodge. “And that harpoon—so like a corkscrew now—was flung.” Herman Melville, Moby Dick or The Whale (1851).

A Thrust of the Harpoon

Posit a prosecution ballistics expert, who has been ordered prior to trial that when testifying he may not use phrases such as “sufficient agreement” or “consistent with” a match in expressing his opinion. When, however, that expert nonresponsively couches his opinion in those judicially excluded words, the evidentiary harpoon has speared the defense.

The Harpooner’s Motivation

The resort to an evidentiary harpoon to assist the prosecution is easily explained. Experienced law enforcement officers know it is difficult to “unring the bell.” Sandez v. United States, 239 F.2d 239, 248 (9th Cir. 1956). As courts have recognized, “[i]t is better to follow the rules than to try to undo what has been done. Otherwise stated, one ‘cannot unring a bell’; ‘after the thrust of the saber it is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it’.” Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962). This common knowledge encourages experienced law enforcement witnesses to roll the dice and violate an exclusion order or agreement when they are confident that the judge will respond to their introduction of excluded evidence with an admonition, not a mistrial.

“Officers must be aware that an overzealous attitude is, in most instances, detrimental to the prosecution and often results in a retrial of the case at considerable expense to the state.” Wright, 325 P.2d at 1093. Having been warned by the prosecutor that such evidence is inadmissible, the violation of a pretrial order or agreement by an experienced police officer should generate, as a matter of policy, the granting of a new trial, but alas that is not the case.

Preparing to Counter an Evidentiary Harpoon

To preclude or blunt the use of an evidentiary harpoon, the defense should take pretrial precautions to ensure the court has banned the prejudicial information and the prosecutor is aware that the admission of the information in question is barred. An initial step is to file a pretrial motion in limine for the court to rule in advance of trial that the specific information is inadmissible. See, e.g., Fed. R. Evid. 103, Rulings on Evidence. In jurisdictions where motions in limine are not officially recognized, the local evidence rules will provide a basis for a pretrial motion to exclude the evidence, such as uncharged misconduct or where the probative value is substantially outweighed by the danger of undue prejudice.

In some situations, the extent of such a pretrial exclusion is subject to reconsideration during trial. Also, the trial court may defer ruling on the motion in limine until the prosecution is ready to offer the information. In either of those scenarios, it is important that the court’s ruling require no mention or display of the information in question may be made in the presence of the jury until the judge makes a final determination of the admissibility of the testimony or exhibit. This effectively quarantines the questionable evidence under the supervision of the court. The prosecution and the defense may stipulate that the evidence is inadmissible and enter that stipulation into the record, making it binding on both. Such a stipulation should also agree to the judicial isolation of that evidence pending a final ruling.

Tightening the Exclusion Order

It is imperative that this type of exclusion order require the prosecution to inform all of its potential witnesses that this information may not be mentioned in their testimony as it has been ruled inadmissible. Should the inadmissible information be unlikely to be known by all the prosecution witnesses, the order may be tailored to limit the prosecutor’s duty to inform only those who are presumed to possess that knowledge, whether directly or indirectly. In some cases, the order may require each witness or certain witnesses to approach the bench before testifying to be warned by the judge out of the hearing of the jury not to mention the excluded matter. The order may also require that before either jury selection or opening statements, the prosecutor inform the court and the defense on the record that all or certain prosecution witnesses have been advised that the inadmissible information may not be mentioned.

The defense should also request that the pretrial order caution the prosecutor about the use of a narrative form of questioning when examining any witness who has knowledge of the judicially precluded evidence. This is not an effort to prohibit entirely the prosecutor’s use of narrative questioning of the witness, such as “what happened next,” which is usually permissible and subject in appropriate situations to objections such as the narrative is impeding the defense’s ability to make timely objections to the witness’s testimony. Instead, the aim of this caution is only to reduce the likelihood that the witness, while recounting any matter, will reference the barred evidence.

Including these precautions in the order will render it difficult for the prosecutor or any witness who violates the exclusion order to claim that the blurting out of the barred information was unintentional as opposed to a deliberate injection of inadmissible, prejudicial testimony into the trial, a calculated evidentiary harpoon.

In many jurisdictions, a motion in limine resolved by an order will be sufficient to preserve the error for appellate review, but out of an abundance of caution, a contemporaneous objection when the order is violated is advised.

The above precautions are only available when the defense is able to anticipate from its own investigation and from reviewing the prosecution’s discovery that certain information should be inadmissible. In other cases, the prejudicial information contained in the evidentiary harpoon may be a surprise to the defense.

Immediate Defensive Actions to Blunt the Harpoon Thrust

When a prosecution witness blurts out nonresponsive, unanticipated testimony containing highly prejudicial information, whether in violation of an exclusion order or stipulation or not, defense counsel must act immediately by approaching the bench to halt the witness’s testimony, object to the testimony, and seek an in camera hearing to resolve the objection and determine the curative relief, if any.

The prosecution witness may blurt out the evidentiary harpoon during either direct examination or cross-examination. In either phase, the first order of business is to determine whether the blurt was unresponsive or solicited by the examiner, either intentionally or negligently. A nonresponsive answer occurs when the witness volunteers information not required by the question. The defense objection is not to the answer being nonresponsive, but to the testimony’s admission of prejudicial, inadmissible evidence. If the prosecutor’s question specifically elicited the objectionable testimony, then the prosecutor’s conduct may qualify as prosecutorial misconduct under certain circumstances. For example, if the solicited testimony introduced evidence of an uncharged crime, wrong, or other act, in many jurisdictions the prosecution would have had an obligation to provide pretrial notice of the intent to introduce that testimony under an exception to the general prohibition. In that situation, the introduction of that testimony without either a pretrial or in trial notice to the defense could constitute prosecutorial misconduct.

If the witness’s inadmissible testimony was not in direct response to the prosecutor’s specific question, was the prosecutor’s question so open-ended that it allowed the witness to freelance an answer containing the prejudicial information? An open-ended question is designed to encourage a full, meaningful answer using the subject’s own knowledge and/or feelings. It is the opposite of a closed-ended question, which anticipates and encourages a short or single-word answer, such as yes or no. “Open-ended questions begin with one of seven interrogative words: ‘who,’ ‘what,’ ‘when,’ ‘where,’ ‘why,’ ‘which,’ and ‘how.’” Marsha Hunter, Nailing Your Direct Examination, Woman Advoc. (Dec. 3, 2012).

Determining the Prosecutor’s Role in the Harpooning

When the witness’s blurt of inadmissible evidence occurs due to the prosecutor’s lack of control over the witness’s testimony, this factor may demonstrate simple negligence by the prosecutor or a strategic effort to allow the witness the freedom to launch an evidentiary harpoon. The defense and the court must examine whether the prosecutor was aware both of the inadmissible evidence that was the subject of the harpoon and that the offending witness possessed knowledge of that information. If so, what, if any, precautions did the prosecutor take during witness preparation to caution this witness against referring to that information on the witness stand; what instructions, if any, did the prosecutor give the witness with regard to that information during witness preparation; and how much in advance of trial did the prosecutor speak with the witness about the inadmissible information? These answers will assist the court in determining whether the witness disregarded the prosecutor’s guidance to present the prejudicial information to the jury or if the prosecutor was deficient in preparing the witness to avoid testifying about the inadmissible matter.

At such a hearing, the defense should request that the witness be questioned out of the jury’s presence on such matters as the witness’s prior experience testifying in court, whether the witness had shared the information in question with the prosecutor before trial, whether the prosecutor advised the witness not to discuss the information that prompted the objection, and what instructions or guidance the prosecutor had given to the witness about testifying. This in camera testimony should be taken immediately and not postponed by the court until after the witness has finished testifying. The witness’s answers are essential to the trial judge’s ruling on the objection and determination of curative relief.

The details of an attorney’s preparation of a witness have long been recognized as a legitimate line of inquiry. Geders v. United States, 425 U.S. 80, 89–90 (1976).

When the Harpoon Is Launched During Defense Questioning

The evidentiary harpoon may be injected into the trial during defense counsel’s cross-examination of a prosecution witness. When that occurs, the court and the prosecution will examine the actual wording of defense counsel’s question to ascertain whether the witness’s answer was unresponsive or solicited, albeit unintentionally. This is yet another reason that defense counsel in cross-examination should use close-ended questions to control the witness’s testimony rather than open-ended questions permitting the witness more freedom to ad-lib outside of the parameters of the actual inquiry. Defense counsel must be prepared to defend the cross-examination question that preceded the evidentiary harpoon as not opening the door for the witness to provide the inadmissible information. In most instances, when the harpoon is flung during defense cross-examination, the first hurdle to overcome is whether the defense solicited the answer given. Demonstrating that the blurt was unresponsive to defense counsel’s answer is an imperative.

Insulating Defense Witnesses Against Launching the Harpoon

As an adjunct to these strategies, defense counsel, when aware of such inadmissible, prejudicial information, whether barred by court order or not, should ensure through witness preparation that no defense witness with access to that information will mention it in his or her testimony.

Demonstrating the Extent of the Harpoon’s Injury

In evaluating the harm inflicted by an evidentiary harpoon, i.e., the prejudice quotient, the defense must explain the context of the blurt from the perspective of the jury. Prejudice is amplified by the credentials of the blurting prosecution witness that the jury heard prior to the unresponsive evidentiary harpoon being launched. Defense counsel should note how the prosecutor introduced the witness to the jury. Was the law enforcement witness identified as an experienced investigator and/or a specialist with regard to this type of crime or testimony, such as drug cases or sex crimes? Did the prosecutor elicit the witness’s background, education, special training, and other impressive experience?

For example, in a child pornography prosecution, in introducing the chief investigator to the jury, the prosecutor may have identified the witness as an experienced investigator and participant in the government’s prosecution of child exploitation and pornography cases, noting her investigation of nearly 100 child exploitation or child pornography cases, and eliciting her background, education, special training, and participation in a multijurisdictional task force. This is all legitimate background information to place the witness’s testimony in context. But there is no doubt that such a resume will enhance the believability of an evidentiary harpoon launched by the witness. Similarly, when the evidentiary harpoon comes from a prosecution expert, what impressive credentials did the prosecutor elicit from the witness at the inception of direct examination?

Defense counsel should also examine the prosecutor’s opening statement and voir dire remarks to determine how the prosecution described the offending witness’s credentials, including experience and expertise, to the jury even before the witness took the stand. The jury would be hard pressed to ignore the evidentiary harpoon when stated under oath by such an experienced and accomplished law enforcement officer or expert witness, even after the judge’s admonition to disregard that testimony.

The offending witness’s particular credentials must be factored into the equation when evaluating how much credence the jury would give the unsolicited reference to inadmissible, prejudicial testimony. The answer is often simple. The jury would trust the offending witness’s blurt as accurate and reliable, making it extremely difficult for the jurors to disregard that testimony and its prejudicial impact, even when instructed that the testimony is stricken and not to be considered for any purpose. Even though the witness’s credentials and background information are accurate, they are nevertheless germane to the calculus for assessing the impact of the inadmissible information on the jury.

The reliability of the source of the prejudicial information injected into a jury trial is important in determining whether a mistrial is appropriate. The jurors’ perception of the credibility and reliability of the witness who volunteered the inadmissible evidence is a significant factor in determining whether an admonition can remedy the introduction of such evidence. The jury’s view of the offending witness, for example, as an experienced and successful law enforcement agent or expert witness may make the recitation of this inadmissible evidence of such character and magnitude that the accused would be denied a fair and impartial trial because that prejudicial effect could not be remedied by an admonition or any option other than a mistrial. Although “[a] jury is presumed to follow its instructions,” that presumption can be overcome by other factors. Weeks v. Angelone, 528 U.S. 225, 234 (2000) (citing Richardson v. Marsh, 481 U.S. 200, 211 (1987)). “[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 so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” Bruton v. United States, 391 U.S. 123, 135 (1968).

Demonstrating prejudice from the evidentiary harpoon is just as important to obtaining relief from the trial court as it is from an appellate court.

Who Can Launch the Harpoon?

An evidentiary harpoon may be lodged by any prosecution witness. The offending witness need not be a law enforcement agent or a prosecution expert to successfully wield the harpoon. As to these other offending witnesses, the defense should also examine the prosecutor’s opening statement, voir dire remarks, and the direct examination’s background information to determine the context in which the jury views the credibility and integrity of the harpooner, also called the boatsteerer. Laura Jernegan: Girl on a Whaleship.

Each Harpoon Is Thrust Within Its Own Particular Scenario

In demonstrating the prejudicial impact of the harpoon, each case has unique circumstances that must be evaluated and argued to the court. Always examine the relationship between the offending information and the charged offense. For example, if the accused is being tried for a drug offense and the evidentiary harpoon is inadmissible testimony that the defendant was previously arrested but not charged for a drug offense, the similarity between the charged crime and the information blurted out may magnify the prejudice inflicted by the harpoon. “In psychology, there is a common belief that the best predictor of future performance is past performance.” Encyclopedia of Industrial and Organizational Psychology 455 (Steven G. Rogelberg, ed., Sage Publ’ns, 2006). This maxim is often embraced as a truism by individuals, some of whom could be on the jury hearing the evidentiary harpoon. In the vernacular, that adage is “if he did it once, he’d do it again.” This is just one example of how to mine the unique circumstances surrounding a vignette where the evidentiary harpoon has been inflicted to demonstrate prejudice as well as the inefficacy of an admonition as curative relief.

The harpoon may be hurled by a testifying law enforcement officer who has sat at the prosecution’s table during defense counsel’s opening statement and heard defense counsel reveal the defense theory of the case. This unlimited access could easily provide the offending witness with the motivation or incentive to undermine the defense theory by unresponsively blurting out inadmissible evidence detrimental to the defendant. Additionally, the harpooner’s presence next to the prosecutor at the government’s table during the trial may cause the jury to have an inflated perception of that witness’s importance, reliability, and credibility, making it more difficult for them to disregard the inadmissible evidence.

Was the Harpoon Inflicted Intentionally or Negligently?

Other factors may indicate the evidentiary harpoon was intentionally injected. Was the prosecution’s pretrial continuance motion denied, and what were the grounds for the motion, e.g., the need for more preparation time or the unavailability of a witness or other type of evidence? Did the trial court’s rulings deprive the prosecution of a witness or other evidence the government had intended to present? Did the court grant the defense permission to introduce evidence the prosecution had opposed? Circumstances such as these may signal the evidentiary harpoon was a desperate attempt to force a defense mistrial motion so the prosecution could have time to overhaul its case to address the specific setback.

Like “Temple’s Toggle,” an improved harpoon, created in the 1830s by a free Black inventor, blacksmith, and abolitionist, Lewis Temple, with increased staying power, an evidentiary harpoon is very difficult to extract from the defense case. That is why the defense must have a thorough strategy to extract the evidentiary harpoon and treat the wound.

Exploring the Harpooning on the Record

When the harpoon has been inflicted, the defense, as explained above, must seek an in-chambers evidentiary hearing to question the prosecutor and offending witness as well as to address other relevant evidence. Should the judge be reluctant to permit such a hearing, the defense must provide a proffer of all the matters the defense wishes to pursue on the record outside the presence of the jury. Often such a proffer will convince a judge to reconsider and grant the requested hearing. But even if unsuccessful, the proffer will enhance the claim of error on appeal. The defense should contend that the most effective form of the proffer would be to conduct the evidentiary hearing on the record complete with the examination of the prosecutor, the harpooner, and any other relevant evidence, even though the judge has elected not to consider that evidence in ruling on the claimed error. This would ensure the appellate court will have a record of exactly what the trial court declined to factor into its ruling on the evidentiary harpoon objection.

Questioning the Venire About Admonitions

In formulating an overall blueprint to confront and defeat an evidentiary harpoon, the defense should consider the benefits and disadvantages of addressing admonitions to disregard testimony with the venire during jury selection. Does discussing this type of admonition with the potential jurors actually enhance the effectiveness of the judge’s directive or merely make it appear so? Does questioning the venire about how an individual will go about disregarding testimony illustrate how difficult the task will be and the actual ineffectiveness of admonitions? Whether to question the venire about admonitions to disregard evidence is a two-edged sword that defense counsel should approach with apprehension while evaluating the strategy within the specifics of the individual case. Consideration of this voir dire approach would most likely arise where the defense has obtained a pretrial order banning certain prejudicial evidence.

Lodging the Harpoon Does Not Require Prosecutorial Involvement

Importantly, a claim of error premised on an alleged evidentiary harpoon does not require intentional misconduct on the part of the prosecutor. For example, the Indiana courts “do not place distinguishing significance upon the fact that the deliberate act was that of the police officer witness rather than that of the prosecution itself.” Perez v. State, 728 N.E.2d 234, 237 (Ind. Ct. App. 2000). Inadmissible evidence volunteered by a law enforcement officer can be an evidentiary harpoon, even without a showing that the prosecutor’s actions or inactions facilitated the blurt.

To allow trial courts to presume, under the most telling circumstances, that experienced and well-trained law enforcement officers blurt out unresponsive, extremely prejudicial information inadvertently rather than intentionally undermines the integrity of criminal jury trials. To combat these obvious evidentiary harpoons with only a curative instruction is not a sanction but, in reality, a reward to the offender’s use of the tactic.

Where a prosecution witness, who is presented to the jury as an experienced, well-trained, and credentialed law enforcement officer, blurts out in an unresponsive answer inadmissible evidence that on its face is detrimental to the defense case, especially when the witness knew or should have known the information to be inadmissible, there should be a rebuttable presumption that the evidentiary harpoon was intentionally injected to harm the defense, placing the burden on the prosecution to demonstrate the blurt was inadvertent, not intentional.

An Admonition as Curative Relief for a Harpooning

If the trial judge rules that the evidentiary harpoon may be cured by an admonition and no further relief, such as a mistrial, is required, the defense should offer to draft the admonition, subject to the court’s approval, while asserting that no admonition is sufficient to cure the evidentiary harpoon. This ensures that the record reflects that the admonition did not waive the defense’s demand for further relief beyond a mere admonition. Often defense attorneys reject an admonition when offered by the court on the grounds that the admonition will only reinforce in the jurors’ minds the harm already inflicted. In this situation, however, the defense’s rejection of a jury admonition to disregard the offending evidence may preclude relief on appeal as the appellate record, devoid of a curative admonition, will not allow the appellate court to evaluate the efficacy of an admonition in the context of the trial.

Additionally, by drafting the proposed admonition, the defense should do its best to repair the damage inflicted by the evidentiary harpoon to salvage the opportunity to obtain an acquittal from the jury. This approach allows the defense to continue to regard the trial as the main event for the defendant while preserving the evidentiary harpoon error for relief on appeal, should the jury convict the accused. “Once it became apparent that the judge was not going to grant a mistrial, it was the duty of counsel to determine what strategy was in his client’s best interest.” Greer v. Miller, 483 U.S. 756, 766 n.8 (1987).

Ensuring the Admonition Is Not Undermined

If the trial continues with only an admonition to remedy the harpoon, defense counsel should carefully monitor the prosecutor’s questioning of other witnesses and closing argument for questions or statements that could trigger the jury’s recall of the stricken testimony. When this occurs, the defense should immediately object and request reconsideration of the denial of the mistrial motion. At that point, defense counsel could argue that another admonition as relief, on top of the previous admonition, would pose the risk of unduly emphasizing the inadmissible evidence in the jurors’ minds. But again, to ensure appellate review of the denial of the mistrial motion, ultimately a second admonition may be required. Additionally, the defense could argue, depending on the circumstances, the offending question or statement in closing argument appears calculated to end-run the court’s admonition for the jury to disregard the previous harpoon and constitutes prosecutorial misconduct.

A Mistrial as Curative Relief for a Harpooning

Should the trial court grant a defense-requested mistrial motion due to an evidentiary harpoon, a new trial may be ordered. However, a subsequent trial may be barred by double jeopardy. U.S. Const. amend. V, XIV, § 1. “[T]he circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” Oregon v. Kennedy, 456 U.S. 667, 679 (1982).

In a pretrial motion to bar the new trial on double jeopardy grounds due to governmental conduct that intentionally goaded the defendant into moving for a mistrial, the defense will have the benefit of the record of the hearing held at the first trial on the evidentiary harpoon claim as well as the opportunity to generate new information at an evidentiary hearing on the motion. “Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system.” Id. at 675. Consequently, the better the information solicited at the trial’s evidentiary hearing indicating the prosecution’s intent to provoke a defense mistrial motion, the better the chance of establishing a double-jeopardy bar to a second trial should a mistrial be granted.

Awareness and Preparation Are Essential to Foil the Harpooner

“There has been considerable change in harpoon apparatus over time as they were refined to make them more efficient or altered to make them better suited for certain purposes.” Charles D. Arnold, Arctic Harpoons, 42 Arctic 80, 81 (Mar. 1989). Similarly, defense counsel must remain vigilant to refinements of and alterations to evidentiary harpoons that will make them more difficult to anticipate and more deadly to an accused’s right to a fair trial.

Although evidentiary harpoons have been a weapon of choice against criminal defendants for many years, defense attorneys have often failed to tackle this stratagem with a comprehensive strategy calculated to expose the misconduct and achieve the necessary curative relief. Armed with this suggested counterplan as well as others inspired by this discussion, defense counsel should blunt and extract the evidentiary harpoon before it can cause the demise of the accused’s right to a fair trial.