§ 8.05 Procedural Issues

• Jurisdiction: United States

§ 8.05 Procedural Issues

[A] Mandatory and Discretionary Instructions

If Rule 105 applies, the trial court must, upon request of a party, instruct the jury as to the limited purpose of the evidence. Because the rule is written in mandatory language,³⁷ refusal to instruct is error.³⁸ A party, however, waives the right to a limiting instruction if the request is not "specific and timely."³⁹

Although the trial court may also give a limiting instruction sua sponte, caution is advised: "A limiting instruction must be given upon request. But a defendant may choose to go without one to avoid highlighting the evidence. We caution against judicial freelancing in this area; sua sponte limiting instructions in the middle of trial, when the evidence is admitted, may preempt a defense preference to let the evidence come in without the added emphasis of a limiting instruction. The court should consult counsel about whether and when to give a limiting instruction."⁴⁰

[B] Timing of Instructions

A limiting instruction may be given either at the time the evidence is admitted or at the close of the case. The language of Rule 105 as enacted in 1975 seemed to require that the instruction be given at the time the evidence was introduced.⁴¹ This interpretation is further supported by the rationale underlying the rule; the instruction will be more effective at the time of admission. The federal cases, however, have not accepted this reading of the rule: "Although there is some support for the proposition that Rule 105 mandates a contemporaneous limiting instruction when any type of evidence is admitted for a limited purpose, the weight of authority is to the contrary. The timing of Rule 105 limiting instructions with regard to physical evidence is best left to the trial court's discretion."⁴²

[C] Failure to Request Instructions

Failure to request a limiting instruction constitutes a waiver of the issue, except in those rare instances in which the plain error rule, Rule 103(e), applies.⁴³ Moreover, in some situations, the failure to request a limiting instruction is a deliberate tactic employed to avoid overemphasizing adverse evidence.⁴⁴ If competent counsel chooses this course of action, the plain error rule should not apply.⁴⁵

--------

Notes:

^[37] See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 173 n.17 (1988) ("The defendants would, of course, have been entitled to a limiting instruction pursuant to Rule 105 had they requested it.").

^[38] See Frederick v. Kirby Tankships...