F 303 Limited Purpose Evidence In General

Horizontal Rule
SERIES 300 EVIDENCE

F 303 Limited Purpose Evidence in General

TABLE OF CONTENTS
F 303 Inst 1 (a-e) Evidence Limited As to Purpose: Generally
F 303 Inst 2 (a & b) Evidence Limited To One Or More Defendants
F 303 Inst 3 Consideration Of One Defendant’s Statement As Evidence Against That Defendant OnlyC Criminal Prosecution
F 303 Inst 4 Transcript Is Not Evidence: Instruction Should Be Repeated Whenever Recording Is Played
F 303 Inst 5 Exhibits Admitted For Limited PurposeC Repeating Limiting Instruction When Exhibits Given To Jury
F 303 Inst 6 Expert Opinion: Availability Of Limiting Instruction To Counter EC 352 Objection To Admission Of Expert Testimony
F 303 Inst 7 Questions Posed By Police Officers Are Not Evidence

Return to Series 300 Table of Contents.

F 303 Inst 1 (a-e) Evidence Limited As to Purpose: Generally

*Add to CC 303:

Alternative a:

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

At the time this evidence was admitted, you were admonished that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. You are again instructed that you must not consider such evidence for any purpose except the limited purpose for which it was admitted.

[Source: Deerings EC 356, “Suggested Form.” ]

Alternative b:

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 you should not consider it as evidence for any other purpose.

[Source: Deerings EC 356, “Suggested Form.” ]

Points and Authorities

When evidence is admitted for a limited purpose, the jurors should be instructed on such limitations if requested. (See EC 355.) However, the general provisions of CC 303 are insufficient to assure that the jury fully understands the limitations of the evidence during its deliberations.

Identification Of Parties—See FORECITE F 100.2 Note 1.

WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 7.4 [Juror Consideration Of Evidence For An Improper Purpose]

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 303 Inst 2 (a & b) Evidence Limited To One Or More Defendants

*Add to CC 303:

Alternative a:

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.

[Source: Deerings EC 355, “Suggested Form.” ]

Alternative b:

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 __________.

[Source: Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. # 19, p. 26.]

Points and Authorities

See FORECITE F 103.4 Inst 2.

F 303 Inst 3 Consideration Of One Defendants‘ 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.

[Source: Deerings EC 356, “Suggested Form.” ]

Points and Authorities

See FORECITE F 103.4 Inst 2.

CALJIC NOTE: See FORECITE F 2.09a.

F 303 Inst 4 Transcript Is Not Evidence: Instruction Should Be Repeated Whenever Recording Is Played

I will remind the jury that what you hear on the tapes, which tape has now been admitted into evidence, is the evidence, and not what you may see on the transcript of the tape. So that if there is anything that is not audible on the tape or that is at variance with the transcript, you will be governed by what you hear, not what you read. We will follow the same procedure as we did previously. That is that you may look at the transcript once the tape starts to play, and dont turn a page until I indicate that you may. In other words, dont try to read to the end of the story before we get through it.

[Source: U.S. v. Singleton (7th Cir. 1997) 125 F3d 1097, 1105.]

Points and Authorities

Without a cautionary instruction, such as the one above, there is a danger the jury will rely on the transcript rather than the tape. (See U.S. v. Singleton (7th Cir. 1997) 125 F3d 1097, 1105.)

Identification Of Parties—See FORECITE F 100.2 Note 1.

FORECITE CG 7.4 [Juror Consideration Of Evidence For An Improper Purpose]

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 303 Inst 5 Exhibits Admitted For Limited Purpose—Repeating Limiting Instruction When Exhibits Given To Jury

Alternative a [Limited Purpose Generally]:

The exhibit which is now being given to you to examine in the juryroom can be considered only for the purpose of _______________. You must not consider that exhibit for any other purpose.

Alternative b [Limited To One Or More Defendants]:

The exhibit which is now being given to you to examine in the juryroom can be considered only in the case against defendant _______________<name of defendant against whom exhibit is admissible>. You must not consider that exhibit as to

Points and Authorities

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. (See FORECITE PG X(E)(19).) 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. (See Herr, Annotated Manual for Complex Litigation (West, 3rd ed, 1999) §22.434, p. 164; see also 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]; 8th Circuit Model Jury Instructions—Criminal 2.14 [Evidence Admitted Against Only One Defendant] (2000).)