Court-Martial Trial Practice Blog
Here I’m talking about limiting instructions at court-martial, not alleged curative instructions.
A limiting instruction is appropriate where evidence is admissible for one or more purposes, but is also inadmissible for one or more purposes. Here is a reminder from federalevidence blog of how that works.
In multi-defendant cocaine conspiracy trial, FRE 105 was satisfied by trial judge’s limiting instruction prior to deliberations that the jury give “separate, personal consideration to the case of each individual defendant” and to “analyze what the evidence in the case shows with respect to that individual, leaving out of consideration entirely any evidence admitted solely against some other defendant”; although the instruction was provided immediately prior to deliberations rather than contemporaneous with the testimony, the instruction satisfied the obligation to instruct jury when evidence can be admitted against one party and not others, in United States v. Beasley, 495 F.3d 142 (4th Cir. July 25, 2007) (No. 04-4107)
FRE 105 requires that if evidence is admissible for one purpose but not others, or against one party but not others, if requested by a party, the trial judge should instruct the jury on the proper scope of the evidence. A prerequisite to the applicability of FRE 105 is that a party requests the limiting instruction.
Bottom line to defense is be alert and request, request a limiting instruction at the time and during final instructions. As always you have to make a tactical choice. Do you in fact ask for the instruction knowing it may highlight and reinforce? My sense is that limiting instructions usually are the time that the balance is in favor of asking. This is a different situation than the so-called curative instruction request. You know the CID/NCIS/OSI agent who has testified a million times, but still makes the mistake saying the accused invoked, and the remedy is a curative instruction.