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27.4 Impeachment Of Witness (Nondefendant) By Prior Conviction: Limiting Instruction

    27.4.1 Impeachment Of Codefendant With Prior Conviction
    27.4.2 Prior Conviction Of Witness: Cautionary Instruction Should Be Given Before The Witness Answers The Question
    27.4.3 Impeachment Of Witness With Felony Conviction: Reversible Error To Refuse Limiting Instruction
    27.4.4 Cautionary/Limiting Instruction As To Testimony From Witness Who Is Prisoner
    27.4.5 Impeachment Of Codefendant With Prior Conviction: Limiting Instruction
    27.4.6 Impeachment Of Witness With Prior Conviction: Federal Circuit Model Instructions And Notes
    27.4.7 Prior Conviction To Impeach Prosecution Witness: Felonies Which Have Been Reduced To Misdemeanors
    27.4.8 Prior Conviction To Impeach Prosecution Witness: Pending Misdemeanors

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     27.4.1    Impeachment Of Witness (Nondefendant) By Prior Conviction: Limiting Instruction

RATIONALE: Without a limiting instruction the jury may improperly consider a prior conviction for purposes other than impeachment of the witness.

POINTS AND AUTHORITIES: U.S. v. West (5th Cir. 1994) 22 F3d 586, 593-94; see also Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 30 [Impeachment By Prior Conviction (Witness Other Than Defendant)] commentary (1988); 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.12 [Impeachment By Prior Conviction (Witness Other Than Defendant) Reverse] sent. 4 (2001).

PRACTICE NOTE: Instruction Also Applicable To Out Of Court Statements. If appropriate, the instruction should be modified to apply to out of court statements as well as testimony. (See FORECITE National™ 27.5 [Witness Credibility: Out Of Court Statements].)

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

See generally, FORECITE National™ 305.23.5 [Witness Prior Conviction].

See generally, FORECITE National™ 27.4.6 [Impeachment Of Witness With Prior Conviction:  Federal Circuit Model Instructions And Notes].

    You have been told that the witness _____ was convicted in _____[year] of [e.g.: armed robbery]. This conviction has been brought to your attention only because you may wish to consider it when you decide as with any witness, whether you believe [his] [her] testimony.

[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 30 [Impeachment By Prior Conviction (Witness Other Than Defendant)] (1988).]

    You have heard evidence that witness (name) was once convicted of a crime. You may use that evidence only to help you decide whether to believe the witness and how much weight to give [his] [her] testimony.

[Source: 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.18 [Impeachment Of Witness: Prior Conviction] (2000); see also 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.03 [Impeachment Of Witness Testimony By Prior Conviction] (1998).]

    (1) You have heard the testimony of ______________________. You have also heard that before this trial he was convicted of a crime.

    (2) This earlier conviction was brought to your attention only as one way of helping you decide how believable his testimony was. Do not use it for any other purpose. It is not evidence of anything else.

[Source: 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 7.05B [Impeachment of a Witness Other Than Defendant by Prior Conviction] (1991).]

    You have heard evidence that __________ has been convicted of a crime. You may consider this evidence only in deciding whether ___________’s testimony is truthful in whole, in part, or not at all. You may not consider this evidence for any other purpose.

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.11 [Impeachment of Witness - Convictions] (1999).]

    (1) You have heard that before this trial the defendant was convicted of a crime.

    (2) This earlier conviction was brought to your attention only as one way of helping you decide how believable his testimony was. You cannot use it for any other purpose. It is not evidence that he is guilty of the crime that he is on trial for now.

[Source: 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 7.05A [Impeachment of Defendant by Prior Conviction] (1991).]

    You may only consider evidence that a witness has been convicted of an offense as to the believability of the witness.

[Source: FORECITE National™.]

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RATIONALE: By giving a cautionary/limiting instruction before the witness has answered the question, the court reduces the chance that the jury may improperly consider the prior conviction during the hiatus between hearing about the prior conviction and hearing a belated limiting instruction.

POINTS AND AUTHORITIES: See generally FORECITE National™ 26.1.2 [Timing Of Limiting Instruction: Should Be Given When Evidence Is Admitted And In Final Instructions]; FORECITE National™ 2.3.1 [Timing Of Instructions: Miscellaneous Issues].

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

See generally, FORECITE National™ 305.23.5 [Witness Prior Conviction].

See generally, FORECITE National™ 27.4.6 [Impeachment Of Witness With Prior Conviction:  Federal Circuit Model Instructions And Notes].

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APPELLATE PRACTICE NOTE: It has been held that refusal of a limiting instruction on the impeachment of a witness with a felony conviction constitutes reversible error. (See e.g., U.S. v. Ragghianti (9th Cir. 1977) 560 F2d 1376, 1381.

See generally, FORECITE National™ 305.23.5 [Witness Prior Conviction].

See generally, FORECITE National™ 27.4.6 [Impeachment Of Witness With Prior Conviction:  Federal Circuit Model Instructions And Notes].

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RATIONALE: In a prison related offense such as escape, there may be testimony from witnesses who are prisoners. Without a cautionary instruction the jury may tend to discredit such testimony simply because the witness is a prisoner.

POINTS AND AUTHORITIES: Unless a prior conviction has been admitted for the purposes of impeachment (see FORECITE National™ 27.3.2 [Prior Conviction Of Defendant]) the jury should not be permitted to consider the prior conviction which can be highly prejudicial. (See FORECITE National™ 27.3.2.1 [Impeachment Of Defendant By Prior Conviction -- Cautionary/Limiting Instruction].)

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

See generally, FORECITE National™ 305.23.5 [Witness Prior Conviction].

See generally, FORECITE National™ 27.4.6 [Impeachment Of Witness With Prior Conviction:  Federal Circuit Model Instructions And Notes].

    Evidence was received that witness ________________ (name of witness) was a prisoner and hence, had been convicted of a crime. You must not consider _____________'s status as a prisoner or conviction of a prior crime for any purpose whatsoever. You must completely eliminate this fact from your mind when considering the testimony of _______________.

[Source: FORECITE National™.]

    You have heard evidence that witness (name) is a prisoner and, hence, was once convicted of a crime. You may use that evidence only to help you decide whether to believe the witness and how much weight to give [his] [her] testimony.

[Source: Adapted from 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.18 [Impeachment Of Witness: Prior Conviction] (2000); see also 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.03 [Impeachment Of Witness Testimony By Prior Conviction] (1998).]

    (1) You have heard the testimony of ______________________. You have also heard that [he] [she] is a prisoner and, hence, was previously convicted of a crime.

    (2) You may consider this earlier conviction only as one way of helping you decide how believable [his] [her] testimony was. Do not use it for any other purpose. It is not evidence of anything else.

[Source: Adapted from 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 7.05B [Impeachment of a Witness Other Than Defendant by Prior Conviction] (1991).]

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RATIONALE: In a multi-defendant trial there may be a tendency for the jury to consider a prior conviction admitted against one defendant as to other defendants.

POINTS AND AUTHORITIES: See HORN’S FEDERAL JURY INSTRUCTIONS, FOURTH CIRCUIT EDITION 3.10 [Defendant’s Testimony: Impeachment by Prior Conviction] (TRCC 1999).

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

CAVEAT: In a situation where the defense theory is to place the blame on the other defendant, the instruction below may not be appropriate. That is, the guilt of the codefendant should be considered by the jury as evidence that the defendant is not guilty. (See FORECITE National™ 270.2.16 [Clarification Of Burden Of Proof When One Defendant Points The Finger At Another].)

See generally, FORECITE National™ 305.23.5 [Witness Prior Conviction].

See generally, FORECITE National™ 27.4.6  [Impeachment Of Witness With Prior Conviction:  Federal Circuit Model Instructions And Notes].

    Evidence has been offered to show that defendant ___________ was previously convicted of a crime. This evidence was offered only against defendant ___________ and you must not consider it for any purpose in reaching your verdict as to any other defendant.

[Source: FORECITE National™.]

*But see FORECITE National™ 48.2.3 [Victim's Prior Bad Acts Or Character].

[Source: HORN’S FEDERAL JURY INSTRUCTIONS, FOURTH CIRCUIT EDITION 3.10 [Defendant’s Testimony: Impeachment by Prior Conviction] (TRCC 1999).]

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See 1st Circuit Pattern Jury Instructions - Criminal 1.06.

See also 1st Circuit Pattern Jury Instructions - Criminal 2.03.

See also 1st Circuit Pattern Jury Instructions - Criminal 3.06.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.08.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.11.

See also 6th Circuit Pattern Jury Instructions - Criminal 7.05A.

See also 7th Circuit Federal Jury Instructions - Criminal 1.03.

See also 8th Circuit Model Jury Instructions - Criminal 1.05.

See also 8th Circuit Model Jury Instructions - Criminal 2.18.

See also 8th Circuit Model Jury Instructions - Criminal 3.04.

See also 9th Circuit Model Jury Instructions - Criminal 1.8.

See also 9th Circuit Model Jury Instructions - Criminal 3.9.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 5.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 23.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 30.

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PRACTICE NOTE: Under Brady/Kyles principles (Brady v. Maryland (63) 373 US 83 [10 LEd2d 215; 83 SCt 1194]/Kyles v. Whitley (95) 514 US 419 [131 LEd2d 490; 115 SCt 1555]) the prosecution should bear "the burden of investigating and divulging the existence" of a prosecution witness’s prior felony convictions, regardless of the fact that the convictions were reduced to misdemeanors after the witness completed probation. (People v. Martinez (CA 2002) 103 CA4th 1071, 1079 [127 CR2d 305].)

See generally, FORECITE National™ 305.23.5 [Witness Prior Conviction].

See generally, FORECITE National™ 27.4.6 [Impeachment Of Witness With Prior Conviction:  Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Under Brady/Kyles principles (Brady v. Maryland (63) 373 US 83 [10 LEd2d 215; 83 SCt 1194]/Kyles v. Whitley (95) 514 US 419 [131 LEd2d 490; 115 SCt 1555]) the prosecution should bear the burden of investigating and disclosing misdemeanor charges which are pending against prosecution witnesses. (People v. Martinez (CA 2002) 103 CA4th 1071, 1079 [127 CR2d 305] [prosecution failed in its duty to conduct basic investigation regarding its witnesses and thus failed to divulge to defendant a pending misdemeanor charge of spousal abuse that was admissible to impeach even thought the witness had not yet been convicted].)

See generally, FORECITE National™ 305.23.5 [Witness Prior Conviction].

See generally, FORECITE National™ 27.4.6 [Impeachment Of Witness With Prior Conviction:  Federal Circuit Model Instructions And Notes].