The Judge as Gatekeeper: Preventing the Jury From Being Misled

Abstract

AbstractThe famous Miranda warnings include the phrase “anything you say can and will be used against you in a court of law”. The warning provides transparency and protects constitutional rights. Rules of evidence that govern trials permit adversaries to use statements made by the other side against their adversary. It would be more transparent to add “anything you say may be used to mislead the jury”. Under the rules of evidence, the government may offer only part of defendants’ statements into evidence. On the other hand, defendants often prefer to offer partial statements of government witnesses to help cases. The Federal Rules of Evidence and evidence rules in most states allow admission of evidence to repair misleading impressions under Rules of Completeness (“Completion Evidence”). Scientific research on jury decision-making demonstrates juries construct stories to understand evidence. A problem arises when only partial statements of witnesses are introduced by the adversaries. The jury may hear only part of the story. A particular problem arises when defendants exercise the constitutional right not to testify and the government has offered only part of a defendant’s statement. The problem is more readily addressed if defendants offer only parts of statements made by government witnesses. Government witnesses typically do not exercise their right not to testify. When defendants have exercised the right not to testify there may be no witness available to repair a misleading impression. This study analyzes law review articles, court cases and rules of evidence to determine when completion evidence is admissible in criminal cases. This study reveals a way forward to avoid distortions of evidence that may mislead juries.