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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). 16 NOTES
MOTIONS IN LIMINE THE ADVOCATE Volume 30, No.1 January 2008 Legal Standard - KRE 103(d) authorizes a request for a pretrial ruling on the admissibility of evidence. The rule says that the court may defer a ruling, but if the issue is resolved by an “order of record,” no further objection is necessary. According to the rule, making the motion and getting a ruling will preserve the issue for appellate review. So, if that is true, do you have to then object all over again when the evidence comes up during the trial? Maybe you do. The rule notwithstanding, a motion in limine will only preserve an objection for appellate review if it meets the following criteria: 1) the motion pinpoints a specific issue, i.e., it states specifically what the evidence will be and what the objection to it is, 2) the motion includes a specific request, 3) you get a ruling on the record, and 4) your objection at trial is the same objection as the motion in limine. If the objection at trial would be different from the one you made in limine, then the trial objection is not preserved unless you make it during trial. Lanham v. Commonwealth, 171 S.W.3d 14 (Ky.2005). See, e.g., Tucker v. Commonwealth, 916 S.W.2d 181 (Ky.1996), overruled by Lanham, in which it was held that making a motion in limine to exclude KRE 404(b) evidence did not suffice to preserve all the issues arising from that evidence. The motion in limine did not specifically object to some of the details of the uncharged crime which were presented at the trial, and when there was no contemporaneous objection to those details, the Court held the issue unpreserved. To clarify, Tucker held that the contemporaneous objection rule required counsel to re-object. Lanham relaxed that requirement by specifying when a motion in limine is sufficient to preserve an issue. The best practice is simply to re-object if there is any doubt. If the objection is the same as the motion in limine, just refer the court back to that motion and the grounds for it. Practice Tip: When the Court Defers a Decision. If the court defers a ruling on the admissibility of evidence, make sure to move the court to order that the evidence not be mentioned in opening statements. Do not forget to get a ruling later. NOTICE OF DEFENSES KRS 500.070(2) says simply, “No court can require notice of a defense prior to trial time.” Important exceptions include reciprocal discovery obligations under RCr 7.24, rape shield under KRE 412, and mental health defenses under KRS 504.070. RCr 7.26, which requires the Commonwealth to provide witness statements at least 48 hours prior to trial, is not reciprocal. Neither party in a criminal action is required to disclose a witness list in pre-trial discovery. King v. Venters, 596 S.W.2d 721 (Ky.1980), Lowe v. Commonwealth, 712 S.W.2d 944 (Ky.1996). “It is our opinion that there is no authority for requiring a defendant to furnish such a list to the Commonwealth, and we are not entirely convinced that it would be free of constitutional difficulty.” King, at 721. See also Commonwealth v. Nichols, 2007 WL 1723371 (Ky.App.2007), unpublished, for a full discussion. Nevertheless, a court may require a defendant to provide a witness list at trial, at the outset of voir dire, for the purpose of inquiring of the jurors if any of them were “close personal friends” or “related by blood or marriage” to any of the named witnesses. Hardy v. Commonwealth, 719 S.W.2d 727 (Ky.1986). It is a misuse of the grand jury for a prosecutor to facilitate his trial preparation by summoning defense witnesses to the grand jury. Bishop v. Caudill, 87 S.W.3d 1 (Ky.2002). 17 NOTES
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GUIDE TO KENTUCKY SENTENCING LAW AG
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