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Erik Menendez' Supp Brief Re Limiting Instructions Ineffectiveness

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ERIK GALEN MENENDEZ and Date: January 23, 1995



Defendant Erik Galen Menendez submits the following supplemental brief on the ineffectiveness of limiting instructions to eliminate the risk of substantial prejudice to Erik Menendez if the Court were to allow the prosecution to introduce proffered evidence regarding alleged statements and bad acts Lyle Menendez at a joint trial of the brothers before a single jury. This supplemental brief will augment Erik Menendez' arguments regarding the ineffectiveness of limiting instructions in his Response to Prosecution's Proffer of Evidence To Be Presented Before A Single Jury filed on June 13, 1994, at pages 27-31.

DATED: January 12, 1995
Respectfully submitted,
Leslie H. Abramson
Marcia A. Morrissey
Attorneys for Defendant ERIK GALEN MENENDEZ
By: /s/ Marcia A. Morrissey


In the prosecution's Proffer of Evidence to be Presented Before a Single Jury, the state argues in a conclusory manner that limiting instructions will eliminate prejudice to Erik from the jury's having been exposed to a variety of proffered evidence regarding his brother Lyle, which the prosecution concedes is admissible only as to Lyle. Proffer, at pp. 10-11. Erik Menendez has previously responded to the prosecution's argument in his Response To Prosecution's Proffer Of Evidence To Be Presented Before A Single Jury, at pp. 25-31. However, Erik Menendez hereby supplements this briefing by reference to social science studies, discussed below, which have shown that limiting instructions are simply not effective, because jurors either disregard the limiting instructions or focus on the inferences forbidden by those instructions.

For example, researchers have studied the impact of an instruction that tells the jury to consider a defendant's past criminal conduct only for impeachment purposes, and not as evidence supporting an inference that the accused has a criminal disposition. V. Hans & N. Vidmar, Judging The Jury, Plenum Publishing (1986), at pp. 124-127. In the Hans & Vidmar study, researchers presented a burglary case to subjects who deliberated in four-person groups. Some of the subject jurors were informed that the defendant had a prior criminal record, but were instructed that his past record was not to be considered as evidence of guilt and was used only to determine credibility. The other jurors were not advised of the criminal record. Those jurors who were not aware of the defendant's criminal record returned not guilty verdicts. However, among the jurors who were made aware of the criminal record of the accused, but had been given a limiting instruction regarding the use of that evidence, 40% returned guilty verdicts. Significantly, the study determined that these guilty verdicts were not the result of the jurors'f indings that the criminal record made the defendant less credible, which would be a correct use of the past conviction evidence. On the contrary, the following was discovered:
"[B]y analyzing the tape-recorded deliberations, we found that . . . [r]ecord and no-record juries did not talk about the defendant's credibility differently. Instead, juries with the criminal record information were likely to discuss it as evidence that the defendant committed the crime. In comparison with juries with no such information, they gave the other evidence bearing on his guilt more importance." Id. at 126.

In addition to demonstrating the likelihood that jurors will ignore limiting instruction, social studies have also demonstrated that limiting instructions unduly and unfairly emphasize the evidence that is the subject of the instruction. The Chicago Jury Project studied the impact of an instruction which advised civil jurors to disregard the fact that the defendant had insurance coverage. Three groups of jurors were tested. The first group was not informed about the defendant's insurance, and awarded an average of $33,000.00. The second group of jurors was told that the defendant was insured, and awarded an average of $37,000.00. The last group of jurors learned of the defendant's insurance coverage and was told to disregard it; these jurors awarded an average of $46,000.00 Id. at 124-125 (citing Broader, "The University of Chicago Jury Project," 38 N. Neb. L. Rev. 744, 754 (1959)). The authors of the Judging The Jury study explained these results as follows:

The jurors who had been admonished to disregard the insurance apparently attempted to follow the judicial admonition; [tape recordings of the deliberations revealed that] either they did not discuss the insurance at all, or if someone brought it up, other jurors said that it was not to be considered. Thus, the cause of the boomerang effect was complex and subtle. Even though the jurors did not actually discuss the matter, their attention had been drawn to it and it remained in their minds, unconsciously affecting their verdict. Id. at 125.

Hans & Vidmar observed that even revised instructions may not solve the problem, noting "[I]t is often asking a lot of human beings simply to ignore an accused person's criminal record in dealing with guilt. After all, if we learn that a person accused of a break-and-enter offense has been convicted four previous times on similar charges, it is difficult not to draw the inference that he or she is guilty this time, regardless of what the law says we should do as jurors. Id. at 126-127.

A study by S. Tanford & S. Penrod, "Social Processes In Juror Judgments of Multi-Offense Trials," Journal of Personality and Social Psychology, Volume 47, No. 4, p. 760 (1984) also demonstrates the ineffectiveness of limiting instructions. 732 subjects participated in the Tanford & Penrod study; 714 of the subjects were actual qualified jurors who had been summoned for jury duty in Dane County, Wisconsin, and the remainder were college students. A control group of jurors judged a trial that consisted of a single service station burglary charge. Other groups watched trials that consisted of the same burglary charge joined with either identical, similar or dissimilar charges. Id. at p. 753.( Note: l)

Some of the groups in the Tanford & Penrod study were given special jury instructions which emphasized the jury's duty to treat each count separately and not to make criminal inferences about the character of the accused from the fact that he faced more than one charge. The subjects were then divided into six- person groups for deliberation. Id. at pp. 754-55. Tanford & Penrod found that there was a higher conviction rate in the joined trials. On the average, there was a 39% rate of guilty verdicts in joined trials, as opposed to a 24% conviction rate for single trials of the service station burglary. Of special significance to the present pleading is the fact that Tanford & Penrod found there was no effect for the special jury instructions emphasizing the jurors' duty to treat each count separately and avoid inferring criminal disposition from the number of charges. Id. at p. 756.

Judge Learned Hand criticized limiting instructions as "recommendation[s] to the jury of a mental gymnastic which is beyond, not only their powers, but anybody else's." Nash v. United States, 54 F.2d 1006, 1007 (2nd Cir. 1932). The United States Supreme Court has made a similar observation in considering the prejudice which flows from a jury's exposure to evidence of a codefendant's extrajudicial statements which implicate a joined defendant, stating that "there are some contexts in which the risk that the jury will not, or cannot, follow instructions are 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." United States v. Bruton, 391 U.S. 123, 135 (1968).

The courts of the state of California have also cautioned that limiting instructions are not always effective, and should not be used as an antidote against the jury's improper consideration of evidence. See, e.q., People v. Bracamonte, 119 Cal. App. 3d 644, 650-51 (1981) (limiting instructions deemed insufficient to overcome prejudicial effects of trying issue of guilt with the truth of prior conviction allegations). In PeoDle v. Bracamonte, the Court of Appeal noted that:

Limiting instructions . . . do not eliminate the risk of prejudice. The naive assumption that prejudicial effects can be overcome by instructions to the jury, all practicing lawyers know to be unmitigated fiction. (Krulewitch v. United States (1949) 336 U.S. 440, 453.) . . . {W]hile appellate courts will presume the jury has followed the instructions of the court [regarding limited use of prior convictions], yet we cannot blind our eyes to the active danger ever lurking in such action. Id. at pp. 650-51 (internal quotations and citations omitted).

The caution expressed by both the state and federal appellate courts is justified by the studies cited above. It is simply not possible for jurors deciding whether Erik Menendez committed the crimes of murdering his mother and his father to disregard inadmissible and highly prejudicial evidence regarding the alleged statements and actions of his brother Lyle. This is especially true given the nature of the evidence the prosecution seeks to introduce, i.e. two separate incidents involving alleged efforts by Lyle Menendez to suborn perjury and fabricate a defense. It is not possible to limit the jury's consideration of such evidence at joint trial before one jury during which the brothers present the same defense to these capital charges. The impermissible inference to be drawn -- if Lyle tried to make up defense evidence, then Erik's defense is also made up -- is simply too compelling for jurors to disregard. For this reason, this Court must not adopt the unwarranted assumption urged by the prosecution, that limiting instructions would be sufficient to eliminate the risk of prejudice if Lyle's bad acts were to be admitted at the joint trial of Erik and Lyle Menendez. DATED: January 12, 1995

Respectfully submitted,

Leslie H. Abramson
Marcia A. Morrissey
Attorneys for Defendant ERIK GALEN MENENDEZ
By:/s/ Marcia A. Morrissey

** (Note: 1) "Identical" charges consisted of three service station burglaries. "Similar" charges were three different types of theft- related burglaries. The "dissimilar" charges were an assault and an armed robbery. Id. at 754. The service station burglary charge was adopted from an actual trial transcript. The joined offenses were based on actual reports of burglary, assault and armed robbery charges that were tried in the state of Wisconsin. Experienced trial attorneys served as the lawyers during the trial reenactments in the Tanford & Penrod study. The same person played the part of the defendant in all of the trials and the witnesses were played by undergraduate and graduate students.

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