Federal Jury Instructions

Importance Of Proper Limiting Instructions In Admitting Evidence

Jury instructions serve an important role on evidence issues. A central premise of our trial system is that jurors follow the law (or instructions) given by the court to decide the facts in the case. As the Supreme Court has noted on this point:

“The Court presumes that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court’s instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them. Cases may arise in which the risk of prejudice inhering in material put before the jury may be so great that even a limiting instruction will not adequately protect a criminal defendant’s constitutional rights. Absent such extraordinary situations, however, we adhere to the crucial assumption underlying our constitutional system of trial by jury that jurors carefully follow instructions.”

Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985) (citations omitted); see also Greer v. Miller, 483 U.S. 756, 766 26 n.8 (1987) (Where an inadmissible statement is followed by a curative instruction, the court must assume “that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an overwhelming probability that the jury will be unable to follow the court’s instructions, . . . and a strong likelihood that the effect of the evidence would be devastating to the defendant.”) (internal quotation marks omitted); United States v. Rutherford, 371 F.3d 634, 640 (9th Cir. 2004) (FRE 606(b) “bars consideration of jurors’ statements that they ignored the court’s instructions and discussed a defendant’s failure to testify during deliberations” because it did not concern any facts relevant to extraneous influences on jury deliberations).

Guiding Jury’s Consideration

Once the trial court decides that particular evidence is legally admissible, the jury may need guidance on how to consider the particular evidence. Some examples include:

• Limiting instructions to ensure the jury considers some particular evidence for relevant purposes but not for impermissible reasons. See, e.g., FRE 105 (“When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.”). For other examples:

o Prior Act Evidence: Estelle v. McGuire, 502 U.S. 62, 69 & n.1 (1991) (noting “the trial court guarded against possible misuse of the instruction by specifically advising the jury that the ‘[prior injury] evidence, if believed, was not received, and may not be considered by you[,] to prove that [McGuire] is a person of bad character or that he has a disposition to commit crimes’”); Huddleston v. United States, 485 U.S. 681, 691-92 (1988) (limiting instruction reduces danger of conviction based on prior acts) o Flight: United States v. Kennard, 472 F.3d 851, 855 (11th Cir. 2006) (in criminal fraud trial, evidence of post-indictment flight was not unfairly prejudicial and jury instruction guided the jury’s consideration) o Summary Evidence: United States v. Johnson, 594 F.2d 1253 (9th Cir.) (discussing role of jury instruction in considering summary evidence), cert. denied, 444 U.S. 964 (1979) o Impeachment (for the “purpose of attacking the credibility of a witness.”): United States v. Nururdin, 8 F.3d 1187, 1192 (7th Cir. 1993) (no abuse of discretion in impeaching defendant in a felon-in-possession case with four prior felony convictions in light of “the importance of the defendant’s testimony, and the centrality of the credibility issue” and the trial court’s limiting instruction “which directed that this evidence could not be used to demonstrate a propensity to commit crime, but could only be used to impeach the defendant’s testimony”); United States v. Browne, 829 F.2d 760, 764 (9th Cir. 1987) (noting “the district court gave the jury a limiting instruction, informing them that they should only consider Browne’s prior [bank robbery] conviction for impeachment purposes”), cert. denied, 485 U.S. 991 (1988)

• Limiting instructions to inform the jury how particular evidence may be considered.

o Recorded Tapes: United States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998) (“When tapes are in English, they normally constitute the actual evidence and transcripts are used only as aids to understanding the tapes; the jury is instructed that if the tape and the transcript vary, the tape is controlling.”) o Violation Of Witness Sequestration Order: United States v. Cropp, 127 F.3d 354, 363 (4th Cir. 1997) (recognizing “one of three remedies when a sequestration order has been violated: sanction of the witness; instructions to the jury that they may consider the violation toward the issue of credibility; or exclusion of the witness’ testimony”); Hill v. Porter Memorial Hosp., 90 F.3d 220, 222 (7th Cir. 1996) (medical expert witnesses reviewed transcription of plaintiff’s testimony and plaintiff sought to strike their testimony, but judge provided jury a cautionary instruction)

• Limiting instructions to mitigate the prejudicial impact of evidence or improperly admitted evidence. See, e.g., United States v. Saucedo-Munoz, 307 F.3d 344, 350 (5th Cir. 2002) (limiting instruction “mitigated any danger that the jury considered the evidence improperly as proof of bad character”); United States v. Perez, 30 F.3d 1407, 1411 (11th Cir. 1994) (“When a court gives a direct and explicit curative instruction regarding improper testimony, it supports the court’s decision not to grant a mistrial by decreasing the possibility of undue prejudice.”). Even though the evidence may be properly admitted, instructional error may result in case reversal on appeal.

o Prior Conviction: United States v. Tail, 459 F.3d 854, 858 (8th Cir. 2006) (“[T]he district court issued an instruction advising the jury that the evidence was received for ‘a limited purpose only,’ and that the prior conviction ‘does not mean that he is guilty of the charges of sexual abuse and sexual abuse of a minor as to which he has pleaded not guilty in this case.’ Such cautionary instructions decrease any danger of unfair prejudice.”) (citation omitted) o Bad Character: United States v. Saucedo-Munoz, 307 F.3d 344, 350 (5th Cir. 2002) (limiting instruction “mitigated any danger that the jury considered the evidence improperly as proof of bad character”) o Expert Testimony Based On Inadmissible Evidence: The Advisory Committee Note to the 2000 amendment to Rule 703 suggests that in deciding whether the probative value of admitting the otherwise inadmissible evidence under Rule 703, the court should consider if giving the jury a limiting instruction will minimize any prejudicial effect. ACN (2000).

• Even though the evidence may be properly admitted, instructional error may result in reversal on appeal.

Strategic Choices

A host of issues can arise concerning an instruction involving specific evidence. As a strategic choice, should an instruction be given at all in the case? See, e.g., United States v. Cartagena-Carrasquillo, 70 F.3d 706, 713 (1st Cir. 1995) (trial court is not obligated, sua sponte, to provide a limiting instruction; “Whether an instruction will ‘cure’ a problem or exacerbate it by calling more attention to it than warranted is within the ken of counsel and part of litigation strategy and judgment. The obligation to suggest the appropriate response, if any, rested on defense counsel.”). How many times should the instruction be given (when the evidence is presented and at the close of all evidence as part of the final charge)? Should the model instructions be used or a modified one tailored to the circumstances of the case?

The general rule is that limiting instructions need only be given when requested and they need not be given sua sponte by the court. United States v. McLennan, 563 F.2d 943, 947-948 (9th Cir. 1977), cert. denied, 435 U.S. 969 (1978); see also United States v. Regner, 677 F.2d 754, 757 (9th Cir. 1982) (judge did not err by failing to give “immediate” instruction that evidence of prior insurance claims by defendant was admissible only on credibility of a defendant who testified on direct that he lacked knowledge of filing insurance claims because the court need not give a limiting instruction unless counsel requests one; here the defense “only requested that the record reflect that the evidence was being introduced for a limited purpose” and did not request limiting instruction), cert denied, 459 U.S. 911 (1982). However, where a limiting instruction is not requested, the failure to give an instruction may be waived on appeal. See, e.g., Brocklesby v. United States, 767 F.2d 1288, 1293 (9th Cir. 1985) (contention that trial court failed “to instruct the jury that it could not consider the indemnity agreement as proof of liability” under Rule 408 was waived where an instruction was not requested), cert. denied, 474 U.S. 1101 (1986).

Federal Jury Instructions