Responding to Evidence of Dubious Admissibility
by: Rjohnson • August 18, 2011 • no comments
This is a short note to emphasize a particular problem with raising evidentiary issues at trial. I am not writing about the substantive law of evidence. Rather, I want to talk about what to do when the state offers prejudicial evidence or evidence of dubious admissibility. If you're aware of the state's evidence ahead of time then you may be able to have a well-planned discussion in limine. But unanticipated evidence often arises unexpectedly in criminal trials. Which means both sides are improvising.
OEC 105 provides:
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.
I want to point to two important details in the text of the rule.
First, you have to object. The doctrine of limited admissibility applies "upon request." I know I sound like a broken record, if you are old enough ever to have heard one. Forgive me.
Second, the court shall restrict the evidence to its proper scope and instruct the jury accordingly. The court does not have discretion to decline a request under OEC 105. State v. Stevens, 147 Or App 592, 938 P2d 780, 1997 reversed on other grounds 328 Or 116 (1998). (Stevens also cites federal cases on FRE 105.) And deciding the proper scope of evidence and what limiting instruction to give requires determining the purpose for which the evidence is offered, so I think it requires the court to direct the proponent to explain the purpose.
That means that, if admissibility is in doubt, the first step of the analysis is to determine the purpose for which it is offered. The purpose is often obvious. But, if it's not, the opponent of the evidence (you, presumably) needs to jump up and down and yell and insist that the court direct the opponent to identify the purpose of the evidence. Courts don't like to do this, in my experience, but without a purpose identified it is impossible to do the analysis required by, say, OEC 401-404, and it may be impossible to determine whether evidence is admissible over a hearsay objection, (because it might not be offered for its truth) or whether evidence is admissible as scientific evidence (evidence that a cop tried to perform a scientific test might rebut a defense attack on the thoroughness of the prosecution's investigation, even if the test is invalid.)
If the court declines to direct the state to identify a purpose, or if the DA opens a copy of Kirkpatrick and says "Umm, it goes to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," then press for more detail. If you don't get it, maybe make a guess about what the state's theory is, and explain that, lacking some other theory, that's your best guess and you will discuss that unless the state comes up with something else.
I don't know that I've ever persuaded a judge to require the state to identify a purpose for the evidence. The problem is worst when the evidence is relevant but still inadmissible.
The point of this exercise is not really to get the limiting instruction. That can't hurt, but I don't share the appellate courts' faith that juries follow them. The point is: by asking for a limiting instruction as part of your argument about the admissibility of the evidence, you will focus the discussion of admissibility where it needs to be: on the state's theory about the purpose of the evidence. That focused discussion will probably increases your chance of winning the issue at trial, and it definitely increases the chance of winning on appeal.
