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LIMITING INSTRUCTIONS
THE ADVOCATE Volume 30, No. 1 January 2008
Appropriateness - Counsel should consider requesting limiting instructions when evidence is
only admissible for a particular purpose and no others. KRE 105(a) is mandatory. It says: “...the
court, upon request, shall restrict the evidence to its proper scope and admonish the jury
accordingly.” So for example, a limiting instruction is appropriate when prior bad acts under
KRE 404(b) are admitted for the limited purpose of establishing opportunity, plan, identity, etc.,
but not in order “to prove the character of a person in order to show action in conformity
therewith.” See, e.g., Bell v. Commonwealth, 875 S.W.2d 882, 890 (Ky.1994). Likewise, an
instruction is appropriate when evidence of a prior conviction under KRE 609 is offered “for the
purpose of reflecting upon the credibility of a witness.” In Lanham v. Commonwealth, 171
S.W.3d 14 (Ky.2005), the court ruled that a limiting instruction was required when the jury was
going to listen to a tape-recorded interrogation in which the interrogating officer commented
on the truthfulness of the defendant’s statements.
A court is not required to give a limiting instruction sua sponte. It must only do so “upon
request.” KRE 105(a).
Effect on Prosecution - The important thing to remember about limiting instructions is that they
also restrict the kind of argument the prosecutor can make in closing. The prosecutor will have
to confine his remarks on that evidence to the purpose for which it was introduced. “[L]awyers
are obligated to use such evidence only for its proper purpose during the course of a trial. For
example, evidence admitted only for credibility but not a substantive purpose must be used in
closing argument only in relationship to the credibility of witnesses.” Robert Lawson, The
Kentucky Evidence Law Handbook, 4 th ed., Lexis-Nexis: 2003, § 1.05[5], p. 28. See, e.g., Zogg
v. O’Bryan, 237 S.W.2d 511 (Ky.1951). Without an instruction, however, the evidence is admitted
“without limitation.” KRE 105(a).
The misuse of evidence of limited admissibility can constitute reversible error. See Osborne v.
Commonwealth, 867 S.W.2d 484 (Ky.App.1993). In Osborne, the defendant was charged with
vehicular manslaughter and DUI. The prosecutor introduced the defendant’s prior DUI
conviction in order to prove that the DUI the defendant was charged with was actually a DUI,
2 nd Offense. No limiting instruction was asked for or given. The prosecutor then urged the jury
to consider the prior DUI conviction while deliberating on the manslaughter charge. The Court
of Appeals ruled that it was reversible error to admit the prior DUI conviction because the
defendant was not charged with DUI 2 nd and because the judge admitted the evidence without
a limiting instruction. The Court of Appeals also said that “...the prosecutor specifically urged
the jury to consider the improper information in deliberating on Osborne’s guilt on the
manslaughter charge. The prosecutor’s comments were inappropriate, inaccurate, highly
inflammatory, and unquestionably tantamount to palpable error affecting Osborne’s substantial
rights.” Id., at 489.
MISTRIAL
Before a mistrial is appropriate the record must reflect a “manifest necessity” for such an
extraordinary remedy. Skaggs v. Commonwealth, 694 S.W.2d 672, 678 (Ky.1985). For a mistrial
to be proper, the harmful event must be of such magnitude that a litigant would be denied a fair
and impartial trial and that the prejudicial effect could be removed in no other way. Gould v.
Charlton Co., Inc., 929 S.W.2d 734 (Ky.1996), Combs v. Commonwealth, 198 S.W.3d 574
(Ky.2006).
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