A New Old Other Bad Acts Special Jury Instruction

by: Ryan Scott • September 16, 2025 • no comments

There are a number of cases -- particularly child sex cases -- that include "other bad acts." The other bad acts are not necessarily offered to prove the defendant committed the act at issue (touching the breast, for example) but to prove that he did so with a sexual purpose. In other words, the other bad acts are not relevant to the actus reus, only the mens rea.

In that situation, the defendant is entitled to certain jury instructions, the goal of which is to limit the jury's consideration of those other bad acts to the purpose for which they are offered.

Consequently, in a case, for example, where the defendant is, say, a gym teacher charged with sexual contact with a minor (A), and the state wants to offer allegations that defendant touched a different minor (B) at a different school, the defendant might be entitled to the following instructions:

(1) You may only consider the allegations involving B when deciding whether [defendant] had a sexual purpose when touching A.

(2) This means you must first decide if [defendant] touched A's breast. You may not consider allegations involving B when you make that determination.

(3) If you find that there was contact with A's breast, you must decide if it was done for a sexual purpose. Only then -- and only for that purpose -- are you allowed to decide if the allegations involving B are true.

(4) If you find the allegations against B are true, then and only then should you consider them when deciding if the contact with A was done with a sexual purpose.

First, let me give full credit to Kyle Krohn for walking me through this analysis. I simply misread the case law until he patiently explained it to me. Hopefully, these instructions accurately reflect and capture his analysis.

Second, you will notice that I have essentially turned one instruction into four. That is done on purpose. I always do it that way. If the trial court doesn't give the instructions at all, and the COA thinks I'm mostly right but quibbles with some of the language in one sentence (which could be fatal to the appeal if presented as just one instruction), the case may still be reversed if not giving the 3 remaining instructions was error.

Third, the case law supporting this are Leistiko and Pitt.

Fourth, don't feel bad if you don't get this instruction. Child sex cases are hard to win under the best of circumstances, and this will give you a good shot at appeal.

Fifth, a smart prosecutor may not agree, but they won't object to those instructions out of fear of giving you an issue for appeal.

Sixth, these instructions could have broad application, but they will have to be modified for your specific case and the exact reason the other bad acts are coming into evidence. Not all "other bad acts" go to mental state. Those instructions will get tricky.