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4.3 Instruction Requests

    4.3.2 Cautionary And Limiting Instructions: Requests And Objections

    4.3.2.1 Cautionary/Limiting Instructions Must Be Requested
    4.3.2.2 Circumstances Where Cautionary/Limiting Instructions May Be Required On Court's Own Motion
    4.3.2.3 Cautionary/Limiting Instruction Should Not Be Given Over Defendant's Objection: Defendant May Waive Benefits
    4.3.2.4 Strategic Concerns Regarding Whether Or Not To Request Cautionary Or Limiting Instructions
    4.3.2.5 Subsequent Change In Ruling Regarding Cautionary/Limiting Instruction May Constitute Unfair Surprise
    4.3.2.6 Timing Of Limiting Instruction: Should Be Given When Evidence Is Admitted And In Final Instructions  
    4.3.2.7 Making A Record Of Counsel’s Reasons For Failing To Request Limiting Instruction
    4.3.2.8 Crafting A Rule 105 Limiting Or Cautionary Instruction: "Prohibited Use" Versus "Permitted Use" Instruction

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PRACTICE NOTE: Generally, a cautionary or limiting instruction should not be given unless requested by a party. (See UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON) UCrJI User’s Guide III, 10/94, p. G-5 (Oregon State Bar, 1998); see also Alexander, MAINE JURY INSTRUCTIONS MANUAL 4-14 (Lexis, 1999).) For example, "[a]n instruction regarding the limited purpose for which evidence may be considered is not required unless requested." (O’Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 7.03 [Requests For Instruction] p. 473 fn. 24 (West, 5th ed. 2000); see also Wharton’s Criminal Procedure (West, 13th ed. 1989) §462, p. 8.)

    However, "a trial judge can, and should, give a cautionary or limiting instruction any time necessary during the trial to advise the jury how to consider properly particular evidence." (See e.g., State v. Stevens (OR 1991) 806 P2d 92, 107-109 [trial court may give limiting instruction during witness’s testimony over defendant’s objection]; HORN’S FEDERAL JURY INSTRUCTIONS, FOURTH CIRCUIT EDITION 3.11 [Confession/Voluntariness], fn 1 (TRCC 1999) ["district court should instruct the jury specifically on the law governing the use of a confession, whether or not the defendant requests the court to do so]"]; see also NCJIC 4.3.2.2 Circumstances Where Cautionary/Limiting Instructions May Be Required On Court's Own Motion.)

    In sum, while in some circumstances a cautionary/limiting instruction may be required sua sponte, it is much more common for the duty to request cautionary or limiting instructions to fall on defense counsel.

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PRACTICE NOTE: Some courts examine the particular evidence involved on a case-by-case basis to determine whether the failure to give a sua sponte limiting or cautionary instruction was "so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial," thus constituting plain error. (See Jones v. U.S. (DC 1984) 477 A2d 231, 242; see also Lucas v. U.S. (DC 1981) 436 A2d 1282, 1284 [trial court failed to give sua sponte limiting instruction concerning the government’s impeachment of its own witness]; Maura v. United States (DC 1989) 555 A2d 1015, 1017; People v. Lang (CA 1989) 49 C3d 991, 1020 [264 CR 386], recognizing sua sponte duty to give cautionary instructions in "extraordinary circumstances"]; People v. Milner (CA 1988) 45 C3d 227, 251-52 [246 CR 713]; People v. Collie (CA 1981) 30 C3d 43, 63-64 [177 CR 458] [sua sponte duty to give limiting instruction when prior crime or evidence is highly prejudicial, minimally relevant and a "dominant" part of the evidence].)

See A Manual On Jury Trial Procedures [3.15A. Cautionary And Curative Instructions: In General].

See also generally, NCJIC 305.3.2 [Cautionary/Limiting Instructions].

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PRACTICE NOTE: Because of the nearly universal rule that the propriety of a limiting or cautionary instruction is a matter of trial strategy (see NCJIC 4.3.4.1 [Cautionary/Limiting Instructions Must Be Requested]), such an instruction should not be foisted on the defense over objection. "It should be the prerogative of the defendant to determine whether such an instruction is beneficial to his defense ..." (People v. Gibson (IL 1971) 272 NE2d 274, 277; see also People v. Lee (IL 1976) 357 NE2d 888 ["defendant should be the one who decides whether, as a matter of trial strategy, this instruction would benefit him or whether it would unduly emphasize to his detriment the fact that he did not testify"]; State v. Stewart (MN 1979) 276 NW2d 51, 63 ["decision to instruct the jury on the use of restraints is left with defense counsel. We believe this to be the better rule since any imposition of a requirement of sua sponte instructions by the trial court transfers the trial strategy from defense counsel to the trial judge."]; Commonwealth v. Rasheed (PA 1994) 640 A2d 896, 897-98 [defendant himself will normally be in the best position to decide whether or not the giving of the instruction will limit jury's consideration of defendant's failure to testify]; State v. Cassel (WI 1970) 180 NW2d 607, 612 [such instructions may do more harm than good and therefore defense counsel should be given the opportunity and responsibility to determine his own trial technique and whether or not he wants an instruction given in such a situation]; Beintema v. State (WY 1997) 936 P2d 1221, 1227 [counsel may, as a matter of trial strategy, choose not to request limiting instruction in order to avoid emphasizing unfavorable evidence].)

See A Manual On Jury Trial Procedures [3.15A. Cautionary And Curative Instructions: In General].

See also generally, NCJIC 305.3.2 [Cautionary/Limiting Instructions].

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PRACTICE NOTE: The efficacy of a cautionary or limiting instruction will vary according to the circumstances. In some situations, such an instruction may be an effective way to limit or unring prejudice. In others, the instruction may serve to emphasize rather than cure the prejudice. (See NCJIC 297.3.2 [Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter].) And, of course, there is the concern of making an appellate record. (See NCJIC 4.1 [The Basic Rule: Instruction Issues Should Be Raised At Trial], NCJIC 295.2 [The Record On Appeal].) As one commentator observed:

"Lurking beneath the surface of the whole process of objecting, of course, is a certain futility — often, the 'correction' will only highlight the problem, drawing undue attention to the mishandled point. As with objections at any phase, there may be a trade-off between the immediate remedy (or lack thereof) and the necessity of making an appellate record." (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[7].)

See A Manual On Jury Trial Procedures [3.15A. Cautionary And Curative Instructions: In General].

See also generally, NCJIC 305.3.2 [Cautionary/Limiting Instructions].

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PRACTICE NOTE: See People v. Dennis (CA 1988) 17 C4th 468, 532-35 [71 CR2d 680]; see also NCJIC 300.14.4 [Changing The Rules In The Middle Of The Game].

CAVEAT: Even if a changed ruling does unfairly surprise counsel, a failure to object may waive any error. (Dennis, 17 C4th at 534.)

See A Manual On Jury Trial Procedures [3.15A. Cautionary And Curative Instructions: In General].

See also generally, NCJIC 305.3.2 [Cautionary/Limiting Instructions].

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    See NCJIC 26.1.2 [Timing Of Limiting Instruction: Should Be Given When Evidence Is Admitted And In Final Instructions].

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PRACTICE NOTE: "Usually, the most effective limiting instruction is one that specifies and prohibits the impermissible use of the evidence; indeed, some courts have required a "prohibited use" instruction. (See, e.g., Government of the Virgin Islands v. Mujahid, 990 F.2d 111 (3d Cir. 1993) ["The instruction to the jury must deal precisely with the issue of how the . . . evidence can and cannot be used"].) On the other hand, the language of Rule 105 does not specifically require that a limiting instruction actually articulate and prohibit the impermissible use of the evidence. Indeed, it may be appropriate in some cases to craft an instruction that specifies only a permissible use, and says nothing about forbidden uses, so as not to give the jury any ideas. (See Federal Judicial Center Pattern Jury Instruction No. 18 [limiting the jury's consideration to one purpose without disclosing impermissible purposes].) Most courts have held that while a prohibited use instruction is ordinarily preferable, the trial judge has discretion in crafting an appropriate limiting instruction. (See, e.g., Hale v. Firestone Tire & Rubber Co., 820 F.2d 928 (8th Cir. 1987) [in product liability suit, Trial Judge instructed jury that certain evidence was offered for the purpose of notice of allegations of claims of defect; although it "would have been better had the trial court specifically directed the jury not to consider the evidence as proof of defect," there was no abuse of discretion; Rule 105 "does not require all limiting instructions to contain prohibited use language"]." (Commentary, USCS Fed. Rules Evid. R. 105, Stephen A. Saltzburg, Daniel J Capra, and Michael M. Martin (Lexis 2004).)