Return to Return to Non-CALJIC Evidentiary – Contents
F 2.002a
Sample Cautionary Instruction
There is proper concern about the witness’ reference to the “mugshots” of the defendant. The police have many pictures of people. Simply because the police have a person’s picture does not mean that [he] [she] has ever committed a crime, before or since. So please understand that there is no connotation of guilt of any kind simply because some pictures of the defendant were in possession of the police.
Points and Authorities
The above instruction was adapted by Devitt, et al., Fed. Jury Prac. & Inst. (1992), § 10.15, from U.S. v. Robinson (7th Cir. 1969) 406 F2d 64, 66-67, as an example of a satisfactory cautionary instruction. (See also Fed. Jud. Ctr.,Pattern Crim. Jury Instructions (1988), Instr. #15, p. 22.) Of course, cautionary instructions cannot be specifically fashioned for the myriad of situations in which they may be appropriate. However, the above instruction provides an example of how a cautionary instruction must be concise, yet definitive, in order to accomplish its purpose.
By seeking to assure that the jurors fairly evaluate the evidence this instruction protects the defendant’s 6th and 14th Amendment federal constitutional rights to trial by jury and due process. (See generally, FORECITE PG VII(C).)
CAVEAT: With regard to most cautionary or limiting instructions, counsel will have to determine whether the benefits of the instruction outweigh the danger that it might unduly emphasize the prejudicial matter. (See FORECITEPG X(E)(19) discussing whether jurors are capable of following cautionary and limiting instructions; see also FORECITE BIBLIO “Empirical Research” (BIBLIO E) and FORECITE BIBLIO 17.30 “Cautionary/Limiting Instructions”.)
