SERIES 300 EVIDENCE
F 303 NOTES
TABLE OF CONTENTS
F 303 Note 1 Limiting Instruction May Be Given Both During And After Trial
F 303 Note 2 Specification Of Limited Evidence
F 303 Note 3 Timing Of Limiting Instruction
F 303 Note 4 Consideration Of LimitedC Purpose Evidence For Mitigation At Penalty Trial
F 303 Note 5 Mental State Evidence Limited To Mitigation
F 303 Note 6 Limiting Instruction When Mental State Evidence Admissible As To Aggravation
F 303 Note 7 Final Instructions Should Repeat The Cautionary Instructions Regarding Juror Questions To Witnesses
F 303 Note 8 Subsequent Change In Ruling Regarding Cautionary/Limiting Instruction May Constitute Unfair Surprise
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F 303 Note 1 Limiting Instruction May Be Given Both During And After Trial
The Related Issues notes to CC 303 state that: “The court has discretion to give limiting instructions at the time the evidence is admitted or at the close of evidence.” However, “a limiting instruction [should] be given both at the time extrinsic evidence is introduced and again in the final instructions to guard against undue prejudice to the accused and to limit such evidence to its proper purpose. [Citations.]” (McSorley, Portable Guide to Federal Conspiracy Law – Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 6, §D(6) [Limiting Instruction on Extrinsic Evidence]; see also Wisconsin Jury Instructions—Criminal, WIS-JI-Criminal 275 [Cautionary Instruction: Evidence Of Other Crimes, Wrongs, Acts [Required If Requested]] & 5 (University of Wisconsin Law School, 2000) [“the trial judge may also wish to consider giving the instruction, or a variation thereof, at the time the other-crimes evidence is admitted in addition to the instruction given at the close of the case” ].)
F 303 Note 2 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.
CALJIC NOTE: See FORECITE F 2.09 n1.
F 303 Note 3 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).)
CALJIC NOTE: See FORECITE F 2.09 n2.
F 303 Note 4 Consideration Of Limited-Purpose Evidence For Mitigation At Penalty Trial
See FORECITE F 8.85 Inst 11.
F 303 Note 5 Mental State Evidence Limited To Mitigation
See FORECITE F 8.85 Inst 20.
F 303 Note 6 Limiting Instruction When Mental State Evidence Admissible As To Aggravation
See FORECITE F 8.85 Inst 21.
F 303 Note 7 Final Instructions Should Repeat The Cautionary Instructions Regarding Juror Questions To Witnesses
If juror questions have been submitted, a detailed cautionary admonition is needed in the final charge to the jury, because jurors may lose track of instructions given during the course of the trial, or may misinterpret the omission of such cautionary instructions from the final charge as indicating the issues addressed by the omitted instructions are comparatively unimportant or even no longer a concern. (See U.S. v. Cassiere (1st Cir. 1993) 4 F3d 1006, 1018; U.S. v. Sutton (1st Cir. 1992) 970 F2d 1001, 1005.)
See generally California Rules of Court, Rule 2.1033.
F 303 Note 8 Subsequent Change In Ruling Regarding Cautionary/Limiting Instruction May Constitute Unfair Surprise
See People v. Dennis (1988) 17 C4th 468, 532-35; see also FORECITE PG VII(C)(27.1) [Changing The Rules In The Middle Of The Game].
CAVEAT: Even if a changed ruling does unfairly surprise counsel, a failure to object may waive any error. (Dennis, 17 C4th at 534.)
