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 VOLUME 7 - CHAPTER 96
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96.2 Prison Crimes: Miscellaneous Issues

    96.2.1 Cautionary/Limiting Instruction As To Defendant's Prisoner Status And Prior Conviction
    96.2.2 Cautionary/Limiting Instruction As To Testimony From Witness Who Is Prisoner

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 VOLUME 7 - CHAPTER 96

RATIONALE: Without instruction there is a danger that the jury will consider the fact that the defendant was already in prison as proof that he or she guilty of escape.

POINTS AND AUTHORITIES: When the defendant’s status as a prisoner is at issue such as escape or assault or battery by a prisoner, the situation is analogous to a charge of being an exfelon in possession of a firearm in that the defendant's prior conviction will necessarily be revealed to the jury because it is an element of the charge.

    Hence, many of the same cautionary and strategic issues applicable to the defendant's prior conviction or arrest may also apply to in-prison crime cases. (See e.g., FORECITE National™ 27.3.2 [Prior Conviction Of Defendant]; and FORECITE National™ 50.1.6 [Escape: Cautionary/Limiting Instruction As To Defendant's Prisoner Status And Prior Conviction]; and  FORECITE National™ 91.2.2 [Escape: Cautionary Instruction Regarding Defendant’s Prior Criminal Arrest].) However, in escape and in-prison crime cases it will be virtually impossible to keep the fact of the prior conviction from the jury by stipulation or bifurcation because the defendant's prisoner status will be inseparable from the evidence presented to prove the offense. For this reason it will be especially important to consider a cautionary instruction to limit the highly prejudicial fact of the defendant's prior conviction.

    See also FORECITE National™ 27.4.1 [Impeachment Of Codefendant With Prior Conviction: Limiting Instruction].

    See also FORECITE National™ 39.2.1 [Drunk Driving Prior Convictions: Bifurcation].

    See also FORECITE National™ 107.2.5 [Exfelon In Possession Of Firearm: No Speculation About Nature Of Prior Felony Where Stipulated].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 5.1; 7.3].~ 

CAVEAT: Consideration should be given to whether or not it is prejudicial for the jury to learn that the defendant was convicted of an unspecified prior crime. In some circumstances, it may be less prejudicial to inform the jury as to the nature of the prior conviction to preclude undue speculation. (See FORECITE National™ 50.1.1 [Exfelon In Possession Of Firearm: No Speculation About Nature Of Prior Felony Where Stipulated].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.9.5 [In Prison Crimes].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 96.1.2 [Prison Crimes: Federal Circuit Model Instructions And Notes].

    Evidence has been received that the defendant was a prisoner at ___________ (name of institution) and therefore had previously been convicted of a crime. This evidence was received as relevant to the defendant’s status as a prisoner, which is an issue in this case. Except for showing that status, the evidence must not be used for any other purpose.  You are not to consider the fact that defendant was in custody to prove that [he] [she] is a person of bad character, has a disposition to violate the law, or for any other purpose. Particularly, you must remember that conviction of the defendant at a previous time is not evidence of guilt of the offense now charged.

[Cf. WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 312 [Prisoner As Witness Or Defendant Prisoner Status An Issue] (University of Wisconsin Law School, 1999).]

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 VOLUME 7 - CHAPTER 96

    See FORECITE National™ 27.4.4 [Cautionary/Limiting Instruction As To Testimony From Witness Who Is Prisoner].