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26.2 Miscellaneous Limiting Instructions

    26.2.1 Failure Of Witness To Answer: Limited To Issue Of Credibility Of Witness
    26.2.2 Witness Afraid To Testify: Limiting Instruction
    26.2.3 Witness Who Has Entered Guilty Plea: Limited Purpose Instruction
    26.2.4 Photograph, Map, Models As Illustrative Evidence: Limiting Instruction
    26.2.5 Fresh Complaint: Limiting Instruction
    26.2.6 Limited Purpose Instruction As To Statements Made By Defendant During Psychiatric Examination Or Treatment
    26.2.7 Threats Or Intimidation Of Witness As Uncharged Offenses: Limiting Instruction

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RATIONALE: Without a limiting instruction the jury may improperly consider a witness' unprivileged refusal to answer a question for purposes other than judging the credibility of the witness.

POINTS AND AUTHORITIES: See People v. Hall (NY 1997) 654 NYS2d 492 [trial court properly instructed jury that it could consider refusal of defense witness to answer only on issue of credibility of the witness].

    See also FORECITE National™ 25.16.7 [Unprivileged Refusal Of Witness To Answer Questions: Consideration As To Credibility].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

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, FORECITE National™ 26.1.7 [ Limited Purpose Evidence: Federal Circuit Instructions And Notes].

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RATIONALE: Without instruction, the jury may fail to properly limit its consideration of the evidence that a witness was afraid to testify.

POINTS AND AUTHORITIES: An allegation that the defendant threatened a witness is highly prejudicial and admissible only if adequately substantiated. (People v. Hannon (CA 1977) 19 C3d 588, 600 [138 CR 885].)

    However, even if no connection between the fear of the witness and the defendant is shown the fear may still be admitted on the issue of credibility. For example, in People v. Warren (CA 1988) 45 C3d 471, 481 [247 CR 172], the court concluded that even though the defendant was not responsible for the witness' fear, such fear was nonetheless relevant and admissible upon the issue of the witness' credibility.

    Accordingly, in such a case evidence is admitted for a limited purpose and a limiting instruction may be appropriate.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.1; 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, FORECITE National™ 26.1.7 [ Limited Purpose Evidence: Federal Circuit Instructions And Notes].

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RATIONALE: If the jury learns that a witness has pled guilty to a crime arising from the same events for which the defendant is on trial, the defendant may be prejudiced. A guilty plea by an accomplice may give rise to an inference that one or all of the remaining defendants are also guilty. Without instruction to prevent such an inference, the jury may impermissibly consider this plea as evidence against the codefendants.

POINTS AND AUTHORITIES: The fact that a witness pled guilty to a crime based on the same events for which the defendant is on trial may improperly suggest that the defendant is also guilty. (See generally  FORECITE National™ 19.3.17 [No Reference To The Term "Accomplice"]; see also FORECITE National™ 26.10.2 [Inculpatory Statement Of One Codefendant In Multi-Defendant Trial (Bruton)].)

    Accordingly, when a witness is impeached by such a plea, the jury should be cautioned that the plea is only admissible for purposes of determining witness credibility and the failure to give such an instruction may be prejudicial error. (See U.S. v. Smith (9th Cir. 1986)790 F2d 789; U.S. v. Halbert (9th Cir. 1981) 640 F2d 1000, 1006-07; see also State v. Caudill (WV 1982) 289 SE2d 748, 755-56 [failure to give instruction limiting consideration of guilty pleas of accomplices was reversible error].) "It is probably not error, however, for the court not to give the instructions sua sponte, unless perhaps if the prosecution has emphasized the plea for an improper purpose...." (640 F2d at 1005; see also U.S. v. Binger (9th Cir. 1972) 469 F2d 275, 276; SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 4-1-11 [Witness Who Has Pleaded Guilty] (State Bar of South Dakota, 2000); 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.19 [Witness Who Has Pleaded Guilty] (2000).)

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

CAVEAT:  FORECITE National™ 297.3.2 [Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter].

PRACTICE NOTE: The defense may seek to impeach the testimony of an accomplice by showing that the accomplice was allowed to make a favorable plea bargain. In such a situation, the jury should not be permitted to use the accomplice's plea against the defendant. (See People v. Young (CA 1978) 85 CA3d 594, 602 [149 CR 524].)

RELATED FEDERAL MODEL INSTRUCTIONS:

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

See also 6th Circuit Pattern Jury Instructions - Criminal 7.07.

See also 7th Circuit Pattern Jury Instructions - Criminal 3.13.

See also 8th Circuit Pattern Jury Instructions - Criminal 2.19.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 1.2.

    You have heard evidence that witness __________ has pleaded guilty to a crime which arose out of the same events for which the defendant is on trial here.  You may only consider this plea in deciding how much, if at all, to rely upon the witness’ testimony.

    I want to tell you again that the fact that such [guilty] pleas were entered [by the accomplices] does not mean that the remaining three defendants on trial are guilty with them. The pleas are not evidence to the defendants remaining on trial that they are guilty, or the crime charged in the indictment was committed. These pleas do not give rise to any inference as to the guilt of the remaining defendants here on trial. The guilt or innocence of the defendants still on trial must be determined solely by you, solely by the evidence introduced in the trial of this case.

[State v. Caudill (WV 1982) 289 SE2d 748, 756.]

    You have heard evidence that a witness pleaded guilty to a crime which arose out of the same events for which the defendant is on trial here. You must not consider that guilty plea as any evidence of this defendant's guilt. You may consider that witness's guilty plea only for the purpose of determining how much, if at all, to rely upon that witness's testimony.

[U.S. v. Smith (9th Cir. 1986) 790 F2d 789; U.S. v. Halbert (9th Cir. 1981) 640 F2d 1000.]

    [Witness] has pleaded guilty to a crime arising out of the same events for which the defendant is on trial. This guilty plea is not evidence against the defendant, and you may consider it only in determining this witness' believability. You should consider this witness' testimony with great caution, giving it the weight you feel it deserves.

[9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL (2000) 4.12 [Witness Who Has Pleaded Guilty].

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    26.2.4    Photograph, Map, Models As Illustrative Evidence: Limiting Instruction

RATIONALE: Without a limiting instruction jurors may consider exhibits such as photographs, maps or models for impermissible purposes beyond those for which the evidence was were admitted.

POINTS AND AUTHORITIES: NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 104.50 [Photographs, Maps, Models- As Illustrative Evidence] (TRCC, 1999).

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, FORECITE National™ 26.1.7 [ Limited Purpose Evidence: Federal Circuit Instructions And Notes].

SAMPLE INSTRUCTION:

    The ________________ (type of exhibit e.g., photograph, map, model) which was [just]* admitted into evidence to illustrate and/or explain the testimony of witness ___________.  You may not consider this exhibit for another other purpose.

* A limiting instruction such as this one should be given both when the evidence is admitted and before deliberations.  (See FORECITE National™ 26.1.2 [Timing Of Limiting Instruction: Should Be Given When Evidence Is Admitted And In Final Instructions].)

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PRACTICE NOTE: Where appropriate, the jury should be instructed that fresh complaint evidence is not of itself substantive evidence that the crime in fact occurred. (See Commonwealth v. Licata (MA 1992) 591 NE2d 672, 675; see also Commonwealth v. Goss (MA 1996) 673 NE2d 80, 81 ["The trial judge should [have] instruct[ed] the jury as the evidence [was] admitted and again during the jury instructions that fresh complaint testimony does not serve as substantive evidence of the crime in fact occurred"].)

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, FORECITE National™ 26.1.7 [ Limited Purpose Evidence: Federal Circuit Instructions And Notes].

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    26.2.6    Limited Purpose Instruction As To Statements Made By Defendant During Psychiatric Examination Or Treatment

RATIONALE: Without a limiting instruction the jury may not understand that statements offered to show the basis of an expert's opinion may not be considered for any other purpose.

POINTS AND AUTHORITIES: When evidence is offered solely to show the basis of an expert opinion, an appropriate limiting instruction should be given. (See U.S. v. Julian (10th Cir. 1972) 469 F2d 371, 376 ["district judge must ...be careful in instructing the jury as to the significance of the testimony"]; U.S. v. Bennett (DC Cir. 1972) 460 F2d 872, 879]; State v. Roberts (MO 1997) 948 SW2d 577, 587.)

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, FORECITE National™ 26.1.7 [ Limited Purpose Evidence: Federal Circuit Instructions And Notes].

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    See FORECITE National™ 34.8.1 [Threats Or Intimidation Of Witness As Uncharged Offenses: Limiting Instruction].

    See also FORECITE National™ 26.2.2 [Witness Afraid To Testify: Limiting Instruction].