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26.1 Limited Purpose Evidence: General Rules

    26.1.1 Whether Limited Evidence Should Be Specified
    26.1.2 Timing Of Limiting Instruction: Should Be Given When Evidence Is Admitted And In Final Instructions
    26.1.3 Cautionary Instruction Should Be Given When Prejudicial Event Happens
    26.1.4 Exhibits Admitted For Limited Purpose -- Repeating Limiting Instruction When Exhibits Given To Jury
    26.1.5 Situations Where Limiting Instructions May Not Work
    26.1.6 Limited Purpose Evidence: Scope And Purpose Of Instruction
    26.1.7 Limited Purpose Evidence: Federal Circuit Model Instructions And Notes

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RATIONALE: While the court should normally admonish the jury regarding the limited purpose of particular evidence at the time that evidence is admitted, it may be difficult for the jury to retain these admonitions throughout trial and remember them when evaluating the evidence during deliberations.

    Given this reality and given the right -- upon request -- to instructions which restrict the evidence to its proper scope, the limiting instruction may be modified, when appropriate, to provide an itemization of the limited evidence.

POINTS AND AUTHORITIES: One of the crucial admonitions a trial court will be called upon to give is a direction to the jury to disregard inadmissible evidence or to utilize certain evidence for a limited purpose. In giving such limiting instructions, it will be most effective if  the court specifies the evidence in detail and names the witnesses who have given it. (See Miller v. Commonwealth (KY 1930) 30 SW2d 484, 485; Bess v. Commonwealth (KY 1903) 77 SW 349, 353.; see also 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.14 [Evidence Admitted Against Only One Defendant] (2000) ["In particularly complex cases, the judge might consider marshaling evidence at the end of the trial, thereby identifying the limited evidence available against a particular defendant. [Citation.]"].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3].

PRACTICE NOTE: Counsel may wish to keep a log of all items of evidence which were admitted for a limited purpose so a specific instruction may be requested.

CAVEAT: The itemization of limited evidence may highlight prejudicial evidence. Careful consideration should be given as to whether the proposed itemization instruction may have this effect and whether it should be requested.

See Manual On Recurring Problems In Criminal Trials [7b. Receipt Of Expert Testimony: Evidence Admissible For One Purpose But Not For Another].

See generally, NCJIC 26.1.7 [Limited Purpose Evidence: Federal Circuit Instructions And Notes].

    Several times during the trial I told you that certain evidence was allowed into this trial for a particular and limited purpose. [Describe evidence.] When you consider that evidence, you must limit your consideration to that purpose.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 18 [Evidence Admitted For A Limited Purpose: Jury To Limit Its Consideration] (1988).]

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RATIONALE: Logic demands that an instruction limiting the jury's consideration of evidence be given at the first opportunity. Since limiting instructions are intended to prevent improper use of evidence, then the instruction should be given when the evidence is admitted.

POINTS AND AUTHORITIES: It is suggested that "a limiting instruction be given both at the time extrinsic evidence is introduced and again in the final instructions to guard against undue prejudice to the accused and to limit such evidence to its proper purpose. [Citations.]" (McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 6, § D(6)  [Limiting Instruction on Extrinsic Evidence].)

    "The better practice favors giving a limiting instruction when requested."  (Alexander, MAINE JURY INSTRUCTIONS MANUAL 4-14 [Limited Purpose Evidence-Limiting Instructions] ¶ 3 (Lexis, 1999); see also WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 275 [Cautionary Instruction: Evidence Of Other Crimes, Wrongs, Acts [Required If Requested]] ¶ 5 (University of Wisconsin Law School, 2000) ["the trial judge may also wish to consider giving the instruction, or a variation thereof, at the time the other-crimes evidence is admitted in addition to the instruction given at the close of the case"]; WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 4.64.01 [Evidence Of Prior Conviction] (West, 2nd ed. 1994).)

    Hence, if a timely request is made, the limiting instruction should be given at the time the evidence is admitted. (See United States v. Chance (6th Cir. 2002) 306 F3d 356, 387-88 [court acknowledged some concern about the trial judge’s refusal to give a contemporaneous limiting instruction on the use of the testimony]; U.S. v. Brawner (DC Cir. 1994) 32 F3d 602, 605 [limiting instruction must be given immediately after evidence of defendant's prior conviction is admitted for purposes of impeachment]; Everitt v. U.S. (5th Cir. 1960) 281 F2d 429, 434-35 [reversible error found where one defendant’s confession was admitted without a contemporaneous limiting instruction as to its nonapplicability to the other defendants]; People v. Garner (CO 1991) 806 P2d 366, 373-74 [error to deny defendant’s request for a limiting instruction at the time evidence of other similar acts was admitted]; People v. Segoviano (IL 1988) 697 NE2d 792, 799 [due process and fair trial violated by imposter witness where trial court’s instruction to disregard the testimony was significantly delayed].) "Otherwise, the jury may react so negatively to the evidence that no closing instruction will be able to remedy the period of the jury’s thinking about what a bad person the defendant is. Therefore, mid-trial instruction is recommended in most cases at the time the evidence is introduced." (See Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 2.10 [Other Crimes And Prior Bad Acts Of Defendant] p. 97 (Lexis, 2nd ed. 1988).)

    See e.g., NCJIC 16.9.2.10 [Final Instructions Should Repeat The Cautionary Instructions Regarding Juror Questions To Witnesses]; see also NCJIC 25.9.2.2 [Transcript Is Not Evidence: Instruction Should Be Repeated Whenever Recording Is Played]; see also NCJIC 26.1.4 [Exhibits Admitted For Limited Purpose -- Repeating Limiting Instruction When Exhibits Given To Jury].

    See also NCJIC 4.3.2.5 [Subsequent Change In Ruling Regarding Cautionary/Limiting Instruction May Constitute Unfair Surprise].

    See also NCJIC 16.2.4.4 [Repetition Of Adjournment/Separation Admonition].

    See also NCJIC 25.2.10 [Exhibits Admitted For Limited Purpose -- Repeating Limiting Instruction When Exhibits Given To Jury].

    See also NCJIC 26.1.4 [Exhibits Admitted For Limited Purpose -- Repeating Limiting Instruction When Exhibits Given To Jury].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3].

See also Manual On Recurring Problems In Criminal Trials [7b. Receipt Of Expert Testimony: Evidence Admissible For One Purpose But Not For Another].

See generally, NCJIC 26.1.7 [Limited Purpose Evidence: Federal Circuit Instructions And Notes].

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PRACTICE NOTE: As with lifting instructions, to be most effective a cautionary instruction normally should be given at the time of the prejudicial event or testimony and repeated in the final instructions. (See NCJIC 26.1.2 [Timing Of Limiting Instruction: Should Be Given When Evidence Is Admitted And In Final Instructions].)

    See also NCJIC 16.9.2.10 [Final Instructions Should Repeat The Cautionary Instructions Regarding Juror Questions To Witnesses].

    See also NCJIC 26.1.4 [Exhibits Admitted For Limited Purpose -- Repeating Limiting Instruction When Exhibits Given To Jury].

    See also NCJIC 25.9.2.2 [Transcript Is Not Evidence: Instruction Should Be Repeated Whenever Recording Is Played].

See generally, NCJIC 26.1.7 [ Limited Purpose Evidence: Federal Circuit Instructions And Notes].

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RATIONALE: When an exhibit has been admitted for a limited purpose, an instruction as to that limited purpose should be given at the time the exhibit was admitted. However, due to the passage of time, the jury may not remember the limited purpose of the exhibit at the time of deliberations. Hence, whenever such an exhibit is sent into the juryroom during deliberations, any limiting or cautionary instruction regarding that particular exhibit should be repeated when the exhibit is given to the jury.

POINTS AND AUTHORITIES: See U.S. v. Martinez (6th Cir. 1970) 428 F2d 86, 89-90 [exhibit admissible against only one defendant may go to the juryroom if adequate cautionary instructions are given]; see also Herr, Annotated Manual for Complex Litigation (West, 3rd ed, 1999) § 22.434, p. 164.

    See also NCJIC 25.2 [Exhibits].

    See also NCJIC 26.1 [Limited Purpose Evidence: General Rules].

    See also NCJIC 284.2.2 [Readback Of Testimony: Necessity Of Cautionary Instruction To Avoid Undue Emphasis].

    See also NCJIC 276.4.2 [Recordings In Juryroom: No Undue Emphasis].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3].

See Manual On Recurring Problems In Criminal Trials [7b. Receipt Of Expert Testimony: Evidence Admissible For One Purpose But Not For Another].

See generally, NCJIC 26.1.7 [ Limited Purpose Evidence: Federal Circuit Instructions And Notes].

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    26.1.5    Situations Where Limiting Instructions May Not Work 

    See NCJIC 26.5.3.2 [Ineffectiveness Of Limiting Instruction As To Uncharged Acts Or Crimes].

    See also NCJIC 272.5.4 [Inability Of Limiting Instruction To Cure Highly Prejudicial Misconduct During Summation/Closing Argument].

    See also NCJIC 297.3.2 [Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter].

See generally, NCJIC 26.1.7 [ Limited Purpose Evidence: Federal Circuit Instructions And Notes].

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    26.1.6    Limited Purpose Evidence: Scope And Purpose Of Instruction

RATIONALE: An instruction limiting the jury’s consideration of evidence to the scope and purpose for which it was admitted is intended to prevent the jury from considering evidence for an improper purpose.

POINTS AND AUTHORITIES: The defense generally should have a right to an instruction limiting the jury’s consideration of evidence to the scope and purpose for which it was admitted. (See e.g., FRE 404(b); see also NCJIC 26.1.3 [Cautionary Instruction Should Be Given When Prejudicial Event Happens].) A limiting instruction may be helpful when evidence is not applicable to all codefendants, when evidence has been admitted under FRE 404(b), or when seeking to limit the effect of evidence produced by experts. (See generally Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) p. 3-4.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3].

CAVEAT I: Because the decision whether to request a limited purpose instruction involves strategic considerations (see CAVEAT II, below), normally the instruction must be requested and the failure to do so will likely be considered a waiver. (See NCJIC 4.3.2.1 [Cautionary/Limiting Instructions Must Be Requested]; see also NCJIC 4.3.2.3 [Cautionary/Limiting Instruction Should Not Be Given Over Defendant's Objection: Defendant May Waive Benefits].)

CAVEAT II: In some situations a limited purpose instruction may be not requested if, from a strategic perspective, it is viewed as heightening the prejudice. (See  NCJIC 4.3.2.4 [Strategic Concerns Regarding Whether Or Not To Request Cautionary Or Limiting Instructions].) If the instruction is requested, care should be taken that the limiting instruction does not over-emphasize or single out specific prejudicial details of the evidence to be limited. (See NCJIC 297.3 [Analysis Of Prejudice]; NCJIC 297.3.1 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice]; see also NCJIC 297.3.2 [Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter].)

CAVEAT III: A generic limiting instruction may not be sufficient to assure that the jury fully understands and follows the limitations of the evidence during its deliberations. (See NCJIC 16.1.6 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice].) The instruction may need to be adapted to the specific circumstances to achieve its intended effect on the jury.

See  Manual On Recurring Problems In Criminal Trials [7b. Receipt Of Expert Testimony: Evidence Admissible For One Purpose But Not For Another].

See generally, NCJIC 26.1.7 [Limited Purpose Evidence: Scope And Purpose Of Instruction].

SAMPLE INSTRUCTION # 1: [Limitation Of Evidence To One Defendant Only -- Criminal Prosecution]:

    Evidence of __________ [description of evidence and/or name of witness] has been admitted against the defendant __________ [name], and not admitted as against the other defendants.

    At the time this evidence was admitted, you were admonished that it could not be considered by you against the other defendants.

    You are again instructed that you must not consider such evidence against the other defendants.

SAMPLE INSTRUCTION # 2: [Evidence Applicable To Only One Defendant -- Jury To Limit Its Consideration]:

    As you know, there are _____ defendants on trial here: __________ [give names]. They are being tried together because the prosecution has charged them together. Nevertheless, each defendant is entitled to have [his] [her] case decided just on the evidence which applies to [him] [her]. Some of the evidence in this case was limited to one of the defendant's and cannot be considered in the cases of the other[s]. That was a legal decision made by me. The testimony you heard that __________ [brief description] should be considered only in the case of the defendant[s] __________, and not in the case[s] of the other[s]. You may consider the evidence in the case of __________, but you may not consider it in any way when you are deciding whether the prosecution has proved, beyond a reasonable doubt, that the other defendant[s] __________ [give names], committed the crime of __________.

[Adapted from Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 19 [Evidence Applicable To Only This Defendant: Jury To Limit Its Consideration] (1988) p. 26.]

SAMPLE INSTRUCTION # 3: [Limitation Of Purpose of Evidence]:

    Evidence of __________ [description of evidence and/or name of witness] was admitted for the limited purpose of __________.

    At the time this evidence was admitted, I instructed you that it could not be considered for any other purpose. Do not consider such evidence for any purpose except the limited purpose for which it was admitted.

SAMPLE INSTRUCTION # 4: [Consideration Of One Defendant's Statement As Evidence Against That Defendant Only -- Criminal Prosecution]:

    Evidence has been received of a statement made after [his] [her] arrest by defendant __________ [name] to __________ [name of witness].

    At the time the evidence of this statement was received, you were told that it could not be considered by you as evidence against the other defendants.

    You are again instructed that you must not consider the evidence of such statement against the other defendants.

SAMPLE INSTRUCTION # 5: [Consideration Of Evidence Admitted For Limited Purpose]:

    In certain instances, evidence may be admitted for a limited purpose only. __________ [Exhibit _____ [insert identification] or Witness __________'s [name] testimony __________ (you are about to hear or you have just heard) is such an instance.] It may be used as evidence for the purpose of showing __________ [insert description], but do not consider it  for any other purpose.

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     26.1.7    Limited Purpose Evidence: Federal Circuit Model Instructions And Notes

See 1st Circuit Pattern Jury Instructions - Criminal 3.07.

See also 6th Circuit Pattern Jury Instructions - Criminal 7.18.

See also 8th Circuit Model Jury Instructions - Criminal 1.03.

See also 8th Circuit Model Jury Instructions - Criminal 2.14.

See also 8th Circuit Model Jury Instructions - Criminal 3.03.

See also 9th Circuit Model Jury Instructions - Criminal 1.5.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 18.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 19.