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F 2.09 n1 Specification Of Limited Evidence.
While the court normally admonishes the jury regarding the limited purpose of particular evidence at the time that evidence is admitted, it may be difficult for the jury to retain these admonitions throughout trial and remember them when evaluating the evidence during deliberations. In fact, the FORECITE editors are aware of cases in which the jury has, during deliberations, requested an itemization of the evidence which was presented for a limited purpose.
Given this reality and given the right — upon request — to instructions which restrict the evidence to its proper scope (EC 355), CJ 2.09 should be modified to provide an itemization of the limited evidence.
PRACTICE NOTE: For purposes of this modification to CJ 2.09, counsel may wish to keep a log of all items of evidence which were admitted for a limited purpose so a specific instruction may be requested.
CAVEAT: The itemization of limited evidence may actually highlight prejudicial evidence. Careful consideration should be given as to whether the proposed itemization instruction may have this effect and whether it should be given.
F 2.09 n2 Timing Of Limiting Instruction.
Logic demands that an instruction limiting the jury’s consideration of evidence be given at the first opportunity. If limiting instructions impede the improper use of evidence, then an instruction given when the evidence is admitted limits that evidence to its proper scope immediately. (See U.S. v. Copelin (DC Cir. 1993) 996 F2d 379, 385-86 [limiting instruction must be given immediately after evidence of defendant’s prior conviction is admitted for purposes of impeachment]; see also FORECITE PG X(E)(19).)
F 2.09a
Evidence Limited As to Purpose
*Add to CJ 2.09:
ALTERNATIVE FORMS
Alternative Form 1:
Limitation Of Evidence To One Defendant
Only — Criminal Prosecution
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.
Points and Authorities
Deerings EC 355, “Suggested Form.”
Alternative Form 2:
Evidence Applicable To Only One Defendant — Jury To Limit Its Consideration
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 __________.
Points and Authorities
Adapted from Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. # 19, p. 26. The general provisions of CJ 2.09 are insufficient to assure that the jury fully understands the limitations of the evidence during its deliberations.
Alternative Form 3:
Limitation Of Purpose of Evidence
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.
Points and Authorities
Deerings EC 356, “Suggested Form.”
Alternative Form 4:
Consideration Of One Defendant’s 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.
Points and Authorities
Deerings EC 356, “Suggested Form.”
Alternative Form 5:
Consideration Of Evidence Admitted For Limited Purpose
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.
Points and Authorities
Deerings EC 356, “Suggested Form.”
