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26.5 Uncharged Acts To Prove Issues Other Than Propensity

    26.5.3 Uncharged Acts: Limiting Instructions

    26.5.3.1 Uncharged Acts: Specification Of Limited Purpose
    26.5.3.2 Ineffectiveness Of Limiting Instruction As To Uncharged Acts Or Crimes
    26.5.3.3 Uncharged Acts: Clarifying Instruction When Lesser Standard Applies To Uncharged Offense
    26.5.3.4 Instruction Limiting Use Of Gang Evidence
    26.5.3.5 Uncharged Acts May Not Be Used To Show Criminal Propensity
    26.5.3.6 Issues Other Than Identity: Jury Not To Consider Uncharged Act As To Whether Defendant Is Guilty Of Charged Acts
    26.5.3.7 Uncharged Acts: “Shotgun” Limiting Instruction Improper
    26.5.3.8 Limiting Instruction As To Specific Elements To Which Uncharged Acts Apply
    26.5.3.9 Uncharged Acts As Element Of Charged Crime: Limiting Instruction As To Applicable Charges
    26.5.3.10 Uncharged Acts As To Associate Of The Defendant: Limiting Instruction
    26.5.3.11 Need For Uncharged Acts Limiting Instruction Based On Other Charged Offenses
    26.5.3.12 Uncharged Acts: Does Court Have A Sua Sponte Duty To Give A Limiting Instruction?
    26.5.3.13 Uncharged Crimes: Instruction Both At The Time The Evidence Is Received And In The Final Charge
    26.5.3.14 Uncharged Acts: Limiting Instructions -- Federal Models

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RATIONALE: A limited purpose instruction may be necessary so that the jury knows for what purposes it may consider evidence of prior bad acts or crimes.

POINTS AND AUTHORITIES: Prior crimes or bad acts may be admissible to prove issues other than propensity (e.g., intent, knowledge, preparation, plan etc.). (See e.g., FRE 404(b).) However, if not properly instructed, jurors may use such evidence in their determination of guilt which would implicate the defendant’s constitutional rights. (See e.g., Huddleston v. U.S. (1988) 485 US 681, 691-92 [108 SCt 1496; 99 LEd2d 771]; see also FORECITE National™ 25.20.5 [Uncharged Acts Offered To Prove Propensity: Constitutional Challenge To Proof Of Propensity By Uncharged Acts].) Therefore, when prior bad acts or other crimes evidence is introduced, a limited purpose instruction may be necessary. (See e.g., U.S. v. Bourgeois (8th Cir. 1984) 746 F2d 401, 405; U.S. v. Ramirez-Calderone (M.D. Pa. 1992) 810 FSupp 136, 138; see also Wharton’s Criminal Evidence (West, 15th ed. 1986) § 4:39, PP. 429-31.)

    See also FORECITE National™ 26.5.3.1 [Uncharged Acts: Specification Of Limited Purpose].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.1; 7.3].

See Manual On Recurring Problems In Criminal Trials ["Other Crimes" Evidence: General Principles].

See also generally, FORECITE National™ 305.21.2 [Uncharged Acts].

See generally, FORECITE National™ 26.5.1.4 [Uncharged Acts: Federal Circuit Model Instructions And Notes].

    You [are about to hear] [have heard] evidence that the defendant (describe evidence the jury is about to hear). You may not use this evidence to decide whether the defendant carried out the acts involved in the crime charged in the indictment. However, if you are convinced beyond a reasonable doubt, based on other evidence introduced, that the defendant did carry out the acts involved in the crime charged in the indictment, then you may use this evidence to decide (describe purpose under 404(b) for which evidence has been admitted.) [Remember, even if you find that the defendant may have committed [a] similar [act][acts] in the past, this is not evidence that [he] [she] committed such an act in this case. You may not convict a person simply because you believe [he] [she] may have committed similar acts in the past. The defendant is on trial only for the crime[s] charged, and you may consider the evidence of prior acts only on the issue of (state proper purpose under 404(b), e.g., intent, knowledge, motive.)].

[Source: 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.08 [Defendant’s Prior Similar Acts (Where Introduced To Prove Identity) (FRE 404(B)] (2000).]

    You are about to hear testimony that the defendant previously committed other [crimes] [wrong] [acts] not charged here. I instruct you that the testimony is being admitted only for the limited purpose of being considered by you on the question of defendant's [intent] [motive] [opportunity] [preparation] [plan] [knowledge] [identity] [absence of mistake] [absence of accident] and for no other purpose.

[Source: 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.10 [Other Crimes, Wrongs Or Acts Of Defendant] (2000).]

    You have heard evidence of acts of the defendant which may be similar to those charged in the indictment, but which were committed on other occasions. You must not consider any of this evidence in deciding if the defendant committed the acts charged in the indictment. However, you may consider this evidence for other, very limited, purposes. If you find beyond a reasonable doubt from other evidence in this case that the defendant did commit the acts charged in the indictment, then you may consider evidence of the similar acts allegedly committed on other occasions to determine:

    Whether the defendant had the state of mind or intent necessary to commit the crime charged in the indictment; or whether the defendant had a motive or the opportunity to commit the acts charged in the indictment; or whether the defendant acted according to a plan or in preparation for commission of a crime; or whether the defendant committed the acts for which he is on trial by accident or mistake. These are the limited purposes for which any evidence of other similar acts may be considered.

[Source: 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.30 [Similar Acts] (2001).]

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PRACTICE NOTE: In People v. Felix (CA 1993) 14 CA4th 997 [18 CR2d 113], a robbery trial, evidence that both codefendants had committed a robbery together on a prior occasion was erroneously admitted to prove identity. In evaluating the prejudicial effect of this error, the court concluded that the limiting instruction was "likely to be of little value" because the instruction did not explain how the evidence might tend to show identity and because a proper use of the evidence to show identity "tends to elude reason." (Felix, 14 CA4th at 1009.)

    See also FORECITE National™ 297.3.1 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice].

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

    See FORECITE National™ 16.1.6 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice].

See also Manual On Recurring Problems In Criminal Trials ["Other Crimes" Evidence: General Principles].

See also generally, FORECITE National™ 305.21.2 [Uncharged Acts].

See generally, FORECITE National™ 26.5.1.4 [Uncharged Acts: Federal Circuit Model Instructions And Notes].

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RATIONALE: Without special explanation, the jury may improperly apply the lower uncharged act standard of proof to facts or elements which are essential to the charged offense.

POINTS AND AUTHORITIES: Due process "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." [Emphasis added.] (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368].) It requires the state to prove "'every ingredient of the offense beyond a reasonable doubt ....'" (Sandstrom v. Montana (1979) 442 US 510, 524 [99 SCt 2450; 61 LEd2d 39], quoting Patterson v. New York (1977) 432 US 197 [97 SCt 2319; 53 LEd2d 281].) Not only does this requirement apply to the evidence as a whole, but also to each fact from which the defendant's guilt is inferred. The California Supreme Court explained this principle in People v. Watson (CA 1956) 46 C2d 818, 831 [299 P2d 243]: "properly interpreted, CALJIC 28 [now CALJIC 2.01 and CALJIC 2.02] applies the doctrine of reasonable doubt not to proof of miscellaneous collateral or incidental facts, but only to proof of 'each fact which is essential to complete a chain of circumstances that will establish the defendant's guilt.'" Accordingly, the Watson court held that in any case which rests essentially on circumstantial evidence, it would be error to refuse to instruct the jury on this basic principle. Further, in any such case, it would be error for the trial court to in any way mislead the jury into thinking that it was not necessary that each fact essential to complete a chain of circumstances establishing guilt be proved beyond a reasonable doubt. (People v. Carter (CA 1957) 48 C2d 737, 758-59, 760-61 [312 P2d 665].) A conviction violates due process if it is based upon an amalgamation of facts none of which have been proven beyond a reasonable doubt. (See People v. Deletto (CA 1983) 147 CA3d 458, 472 [195 CR 233]; People v. Hefner (CA 1981) 127 CA3d 88, 96-7 [179 CR 336]; see also FORECITE National™ 270.2.13 [Presumption Of Innocence Applies To Each Material Allegation Of The Charge]; FORECITE National™ 270.4.1 [Reasonable Doubt As To Any Element Or Essential Fact By Any Juror Precludes Conviction]; FORECITE National™ 270.4.2 [Proof Beyond A Reasonable Doubt: Applicable To Subordinate Facts Essential To Proof Of An Element Of A Crime].)

    In most jurisdictions neither the defendant's guilt of the uncharged crime nor its relevance need be proven beyond a reasonable doubt as a prerequisite to the admissibility of the uncharged offense. (See e.g., People v. Simon (CA 1986) 184 CA3d 125, 134, fn 6 [228 CR 855] [admissibility of other crimes evidence governed by preponderance standard]; see also People v. Albertson (CA 1944) 23 C2d 550, 557 [145 P2d 7].) However, this rule should not permit the jury to utilize the prior act or crime to convict the defendant without finding that the charged crime has been proven beyond a reasonable doubt. Such a result would violate due process by allowing an "ingredient of the offense" to be proven under a lesser standard. (See generally People v. Vichroy (CA 1999) 76 CA4th 92 [90 CR2d 105] and People v. Guzman UNPUBLISHED (CA 1999) 73 CA4th 103 [86 CR2d 164].)

    For example, where identity is an essential fact in a case it would be improper for the jury to convict based on a finding, by a lesser standard, that the defendant had committed prior similar crimes. "An essential element of any crime is, of course, that the defendant is the person who committed the offense. Identity as the perpetrator must be proved beyond a reasonable doubt." (People v. Hogue (CA 1991) 228 CA3d 1500, 1505 [279 CR 647].)

    Hence, the jury is actually faced with a two-step process regarding other crimes evidence. First, before the evidence may even be considered, it must be proven under the lesser standard. (E.g., preponderance of the evidence.) Second, before the other crime may be utilized to convict, it must be proven beyond a reasonable doubt. (In a court trial, the judge performs a similar two-step process.)

    Accordingly, to avoid unconstitutional use of uncharged acts or crimes, the instructions regarding the standard of proof as to uncharged matters should be modified to make it clear to the jury that: (1) the evidence may not even be considered unless its relevance and the defendant's commission of the act or crime is established by a preponderance of the evidence; and (2) the evidence may not be utilized to convict the defendant unless the defendant's commission of the offense is proven beyond a reasonable doubt. Without such an instruction, there is a danger that the defendant's constitutional rights to trial by jury and due process (6th and 14th Amendments) rights will be undermined by allowing the jury to convict with facts which have not been proven beyond a reasonable doubt.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.1; 2.2; 2.3].

BRIEFING AVAILABLE: Click here [Brief Bank # B-916].

See also Manual On Recurring Problems In Criminal Trials ["Other Crimes" Evidence: General Principles].

See also generally, FORECITE National™ 305.21.2 [Uncharged Acts].

See generally, FORECITE National™ 26.5.1.4 [Uncharged Acts: Federal Circuit Model Instructions And Notes].

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RATIONALE: Given the high probability of prejudice which may result from evidence of gang membership, an instruction clearly limiting the use of such evidence may be appropriate.

POINTS AND AUTHORITIES: The highly prejudicial nature of gang evidence is self evident. "Evidence of gang membership can taint a defendant in the eyes of the jury. This circuit is cognizant of the insidious quality of such evidence and the damage it can do." (U.S. v. Sargent (7th Cir. 1996) 98 F3d 325, 328; see also Annotation, Admission of Evidence of Accused's Membership in Gang, 39 ALR4th 775.)

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

RESEARCH NOTES:

See also Manual On Recurring Problems In Criminal Trials ["Other Crimes" Evidence: General Principles].

See also generally, FORECITE National™ 305.3.15 [Criminal Street Gangs].

See also generally, FORECITE National™ 305.21.2 [Uncharged Acts].

See generally, FORECITE National™ 26.5.1.4 [Uncharged Acts: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: While there may be no sua sponte obligation to give such a limiting instruction (see e.g., People v. Collie (CA 1981) 30 C3d 43, 63-4 [177 CR 458]), "when a trial court does undertake to give a limiting instruction specifically calling attention to the significance of the substantially prejudicial evidence of prior bad acts, it should do so accurately." (People v. Nottingham (CA 1985) 172 CA3d 484, 497 [221 CR 1]; see also People v. Hayes (CA 1990) 52 C3d 577, 624-25 [276 CR 874]; People v. Edelbacher (CA 1989) 47 C3d 983, 1010 [254 CR 586].)

    For example, the failure of an instruction to limit the use of the "uncharged crimes" evidence to issues other than defendant’s propensity for criminal conduct may be reversible error. (People v. Connors (IL 1980) 402 NE2d 773, 777-78.)

See also Manual On Recurring Problems In Criminal Trials ["Other Crimes" Evidence: General Principles].

See also generally, FORECITE National™ 305.21.2 [Uncharged Acts].

See generally, FORECITE National™ 26.5.1.4 [Uncharged Acts: Federal Circuit Model Instructions And Notes].

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RATIONALE: When uncharged acts are admitted to prove mental state issues such as knowledge or intent, the instructions should make it clear that the uncharged act cannot even be considered unless and until it finds beyond a reasonable doubt that charged act has been committed.

POINTS AND AUTHORITIES: It is widely recognized that the inherent prejudice of prior similar acts or uncharged offenses is that the jury will use the evidence to decide that the defendant is a person with a criminal propensity and, hence, because the defendant committed the prior acts or offenses he or she also committed the charged acts. (See FORECITE National™ 26.5.3.5 [Uncharged Acts May Not Be Used To Show Criminal Propensity]; see also FORECITE National™ 25.13.7 [Uncharged Acts: Not Relevant To Show Bad Character Or Criminal Propensity Or That Defendant Committed The Charged Act].) Accordingly, it is universally recognized that the jury should be given a limiting instruction precluding such use of the prior similar acts or offenses. (See FORECITE National™ 26.5.3.1 [Uncharged Acts: Specification Of Limited Purpose].) One method of so instructing the jury is to expressly preclude the jury from utilizing the uncharged acts or offenses in deciding whether the defendant committed the charged acts and to permit consideration of the uncharged acts and offenses only if the jury decides, based on independent evidence, that the defendant committed the charged acts. (See U.S. v. West (5th Cir. 1994) 22 F3d 586, 595; 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.30 [Similar Acts] (2001).)

    A variation of this approach is to instruct that the elements to which the uncharged act is not relevant must be found before considering the uncharged act.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.1; 7.3].

See also Manual On Recurring Problems In Criminal Trials ["Other Crimes" Evidence: General Principles].

See also generally, FORECITE National™ 305.21.2 [Uncharged Acts].

See generally, FORECITE National™ 26.5.1.4 [Uncharged Acts: Federal Circuit Model Instructions And Notes].

    You have heard evidence of acts of the defendant which may be similar to those charged in the indictment, but which were committed on other occasions. You must not consider any of this evidence in deciding if the defendant committed the acts charged in the indictment. However, you may consider this evidence for other, very limited purposes. If you find beyond a reasonable doubt from other evidence in this case that the defendant did commit the acts charged in the indictment, then you may consider evidence of the similar acts allegedly committed on other occasions to decide: [insert appropriate purpose].

    These are the limited purposes for which any evidence of other similar acts may be considered.

[Source: 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.30 [Similar Acts] (2001).]

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PRACTICE NOTE: Several courts have rejected "laundry list" or "shotgun" instructions which list all or most of the possible grounds for admission permitted by the rule "because they do not prove adequate advice to the jury on the grounds for admission of the evidence." (Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 5-25, Comment, p. 5-74; see also United States v. Hardwell, 80 F3d 1471, 1491 (10th Cir. 1996); United States v. Merriweather, 78 F3d 1070, 1076 (6th Cir. 1996) [the trial court’s "recitation of seven of the nine purposes named in Rule 404(b) . . . suggests strongly that the court did not have a clear idea what theory may have justified receiving the evidence"]; see United States v. Spikes, 158 F3d 913, 929-30 (6th Cir. 1998) [failure to specify grounds for admission was erroneous, but was harmless in light of other overwhelming evidence]; but see United States v. Curry, 79 F3d 1489, 1497 (7th Cir. 1996) [allowing similar instruction]; cf. United States v. Wilson, 107 F3d 774, 783 (10th Cir. 1997) [misidentification of grounds for admission in limiting instruction was harmless where the basis for admission was clear].) "...[I]n several states trial judges are no longer permitted to give 'shotgun' instructions that mention all recognized theories for admitting uncharged-misconduct evidence, including motive, opportunity, intent, identity, and knowledge. Instead, appellate court are beginning to insist that trial judges single out the very purpose for which the evidence is admitted." (Imwinkelried, Giannelli, Gillian, Lederer, Courtroom Criminal Evidence (Lexis, 3rd ed, 1998) § 911, p. 327; see also State v. Marquez (KS 1977) 565 P2d 245, 251; State v. Donnelson (KS 1976) 549 P2d 964, 969; PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 52.06 [Evidence And Guides For Its Consideration-Proof Of Other Crimes-Limited Admissibility Of Evidence] comment p. 75 (Kansas Judicial Council, 3rd ed. 1999) PIK3d (1995 Supp.).)

    See also FORECITE National™ 26.5.2.3 [Uncharged Acts: Admissible Only To Prove Contested Issues].

See also Manual On Recurring Problems In Criminal Trials ["Other Crimes" Evidence: General Principles].

See also generally, FORECITE National™ 305.21.2 [Uncharged Acts].

See generally, FORECITE National™ 26.5.1.4 [Uncharged Acts: Federal Circuit Model Instructions And Notes].

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RATIONALE: Without a limiting instruction the jury may improperly rely on evidence of uncharged acts to prove elements as to which it was inadmissible.

POINTS AND AUTHORITIES: Evidence of a uncharged offense need not be admissible as to every element of the charge. The trial court should instruct the jury as to the specific element for which the evidence of an uncharged bad act is being admitted. (See e.g., PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 52.06 [Evidence And Guides For Its Consideration-Proof Of Other Crime-Limited Admissibility Of Evidence] comment p. 76 (Kansas Judicial Council, 3rd ed. 1999).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.1; 7.3].

See also Manual On Recurring Problems In Criminal Trials ["Other Crimes" Evidence: General Principles].

See also generally, FORECITE National™ 305.21.2 [Uncharged Acts].

See generally, FORECITE National™ 26.5.1.4 [Uncharged Acts: Federal Circuit Model Instructions And Notes].

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RATIONALE: Without a limiting instruction the jury may not understand to limit its consideration of the uncharged act evidence to the specific charge to which it is applicable.

POINTS AND AUTHORITIES: "Where evidence of a prior conviction is admitted for [the purpose of establishing an essential element of the crime], the trial court should give a limiting instruction on its use by the jury. [Citation.] If the defendant is charged with several crimes, the trial court should instruct the jury regarding its specific application to the particular crime."  (PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 52.06 [Evidence And Guides For Its Consideration-Proof Of Other Crime-Limited Admissibility Of Evidence] comment p. 78 (Kansas Judicial Council, 3rd ed. 1999); see also People v. Tufunga (CA 1999) 21 C4th 935 [90 CR2d 143] [trial court erroneously failed to limit introduction of evidence regarding a prior uncharged act to the count to which the uncharged act was relevant]; FORECITE National™ 34.1.7 [Consciousness Of Guilt: Limiting Instruction When Not Applicable To All Charged Offenses].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.1; 7.3].

See also Manual On Recurring Problems In Criminal Trials ["Other Crimes" Evidence: General Principles].

See also generally, FORECITE National™ 305.21.2 [Uncharged Acts].

See generally, FORECITE National™ 26.5.1.4 [Uncharged Acts: Federal Circuit Model Instructions And Notes].

    The prosecution has alleged that the defendant committed the following uncharged act[s]: __________________________. If you find that the uncharged act[s] [was] [were] proven that evidence may only be considered on the issue of _______________________ as to Count ___________________.

    The evidence regarding the defendant’s prior conviction for [insert prior conviction] is admissible only for the purpose of the prior conviction element of _________________ as alleged in Count ____. You must not consider it for any other purpose or for any other count.

[Source: FORECITE National™.]

SAMPLE INSTRUCTION # 2: [Add to existing instruction]:

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    26.5.3.10    Uncharged Acts As To Associate Of The Defendant: Limiting Instruction

RATIONALE: When bad character or reputation evidence is admitted as to an associate of the defendant, the jury may improperly assume that this reflects adversely upon the defendant as well. Therefore, a limiting instruction may be appropriate.

POINTS AND AUTHORITIES: People v. Garceau (CA 1993) 6 C4th 140, 194-5 [24 CR2d 664].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.1; 7.3].

See Manual On Recurring Problems In Criminal Trials [Receipt Of Expert Testimony: General Principles].

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

See also Manual On Recurring Problems In Criminal Trials ["Other Crimes" Evidence: General Principles].

See also generally, FORECITE National™ 305.21.2 [Uncharged Acts].

See generally, FORECITE National™ 26.5.1.4 [Uncharged Acts: Federal Circuit Model Instructions And Notes].

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RATIONALE: Without a cautionary instruction the jury may not properly limit its consideration of other charged misconduct.

POINTS AND AUTHORITIES: Typically, the cautionary and limiting instructions regarding other acts relates to uncharged misconduct. However, there may also be a need for such instruction when the other acts or misconduct are charged. For example, if misconduct in one charged offense is relied on to prove issues such as intent, motive or identity as to another charged count a limiting instruction may be appropriate precluding the jury from using the other charged misconduct to prove criminal disposition. (See People v. Ruiz (CA 1988) 44 C3d 589, 607 [244 CR 200]; compare People v. Arias (CA 1996) 13 C4th 92, 140-41 [51 CR2d 770] [jury need not be cautioned against considering other charged offenses as proof that the defendant is a person of bad character or of criminal disposition when evidence is not otherwise cross-admissible and jury is instructed to consider each charged crime separately].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.1; 7.3].

See Manual On Recurring Problems In Criminal Trials ["Other Crimes" Evidence: General Principles].

See also generally, FORECITE National™ 305.21.2 [Uncharged Acts].

See generally, FORECITE National™ 26.5.1.4 [Uncharged Acts: Federal Circuit Model Instructions And Notes].

    With respect to Count ____, you have heard [will hear] evidence that [defendant] previously committed acts similar to those charged in Count ____. You may not use this evidence to infer that, because of his/her character, [defendant] carried out the acts charged in Count ____. You may consider this evidence only for the limited purpose of deciding:

    (1) Whether [defendant] had the state of mind or intent necessary to commit the crime charged in Count ____;

    or

    (2) Whether [defendant] had a motive or the opportunity to commit the acts charged in Count ____;

    or

    (3) Whether [defendant] acted according to a plan or in preparation for commission of a crime;

    or

    (4) Whether [defendant] committed the acts he/she is on trial for by accident or mistake.

    Remember, this is the only purpose for which you may consider evidence of [defendant’s] prior similar acts. Even if you find that [defendant] may have committed similar acts with respect to Count ____, this is not to be considered as evidence of character to support an inference that [defendant] committed the acts charged in Count ____.

[Source: Adapted from 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.05 [Evidence of Defendant’s Prior Similar Acts] (2002).]

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APPELLATE PRACTICE NOTE: Generally, limiting instructions need not be given unless requested. (See FORECITE National™ 4.3.2.1 [Cautionary/Limiting Instructions Must Be Requested].) And, many courts apply this rule to limiting instructions on uncharged acts or crimes. (See e.g., People v. Hawkins (CA 1995) 10 C4th 920, 942 [42 CR2d 636]; State v. Love (LA 1992) 602 So2d 1014, 1023; People v. Demartzex (MI 1973) 213 NW2d 97, 100-101; State v. McMillian (MO 1960) 338 SW2d 838, 843; State v. Everette (NC 1993) 433 SE2d 802, 804.)

    However, due to the highly prejudicial impact of uncharged offenses and the danger that the jury will consider them beyond their limited purpose, it has been held that "when prior act or other crimes evidence is admitted for a limited purpose, the trial court has a general, sua sponte duty to instruct the jury on the limited purpose for which such evidence is admitted." (Johnson v. U.S. (DC App. 1991) 596 A2d 980, 984, n 8; see also Jones v. U.S. (DC App. 1984) 477 A2d 231, 242; and see State v. Cooper (RI 1992) 608 A2d 1140, 1141 [failure to give a limiting instruction sua sponte, after objection to admission of other crimes evidence, was reversible error].)

    Another approach suggests that it "may be desirable...for the trial judge to inquire of the defense whether a cautionary instruction is requested and, if the defendant’s tactical decision is not to request the instruction, to make a record of that decision."  (WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 275 [Cautionary Instruction: Evidence Of Other Crimes, Wrongs, Acts [Required If Requested]] comment p. 3 (University of Wisconsin Law School, 2000).)

    However, even if the court has a duty to act in the absence of a request, if the defendant expressly objects to such an instruction on other crimes evidence it should not be error to omit the instruction. (Tabron v. U.S. (DC App. 1979) 410 A2d 209, 214 n 6.)

CAVEAT: Even a limiting instruction may not cure the prejudice created by extensive inquiry at trial about an uncharged act. (See People v. Butler (IL 1975) 334 NE2d 448, 451; see also FORECITE National™ 297.3.1 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice].)

See Manual On Recurring Problems In Criminal Trials ["Other Crimes" Evidence: General Principles].

See also generally, FORECITE National™ 305.21.2 [Uncharged Acts].

See generally, FORECITE National™ 26.5.1.4 [Uncharged Acts: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: "Because of the significant prejudice to a defendant’s case that the admission of other crimes evidence usually risks, [the] trial courts should not only instruct the jury [on the limited admissibility of such evidence] at the close of the case, but also orally from the bench, unless defendant objects, at the time the evidence is first presented to the jury." (People v. Denny (IL 1993) 608 NE2d 1313, 1324; see also People v. Celestino (NY 1994) 615 NYS2d 346, 349; People v. Williams (NY 1980) 409 NE2d 949 [431 NYS2d 477].)

    If the jury is not cautioned until the final instructions the damage may already have been done. If the jury is instructed only when the evidence is admitted they may not remember the limitations during deliberation.

    See also FORECITE National™ 26.1.2 [Timing Of Limiting Instruction: Should Be Given At Time When Evidence Is Admitted And In Final Instructions].

See Manual On Recurring Problems In Criminal Trials ["Other Crimes" Evidence: General Principles].

See also generally, FORECITE National™ 305.21.2 [Uncharged Acts].

See generally, FORECITE National™ 26.5.1.4 [Uncharged Acts: Federal Circuit Model Instructions And Notes].

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    See generally, FORECITE National™ 26.5.1.4 [Uncharged Acts: Federal Circuit Model Instructions And Notes].