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Univ. of South Carolina School of Law

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Tuesday, January 13, 2009

Unlimited: Alaska Case Reveals The Futility Of Limiting Instructions For Common Plan Evidence

The recent opinion of the Supreme Court of Alaska in Sowinski v. Walker, 2008 WL 5413724 (Alaska 2008), reveals that a litigant must ask for a limiting instruction to receive one.  But it also reveals the seeming futility of asking for a limiting instruction when evidence of past acts are used to prove common plan or scheme.

Walker arose from an ATV accident which occurred after minors Justin Vaughn and Robert Walker consumed alcohol they had allegedly purchased at DelRois Liquor Store. After drinking, the minors and Crystal Brueggeman rode an ATV and struck a cable, resulting in the deaths of Vaughn and Walker "within seconds or minutes."

The personal representatives of the decedents' estates and the decedents' families thereafter sued several parties, including DelRois, whom they sued for providing alcohol to the underage decedents and against whom they sought punitive damages.  Ultimately, the Superior Court found that DelRois was sixty-two percent responsible for the accident, and several appeals ensued including an appeal by DelRois.

One of the grounds for DelRois' appeal was that the court erred in admitting the testimony of other minors, who claimed that DelRois sold alcohol to other minors (in addition to selling alcohol to the decedents on the night in question).  In rejecting this argument, the Supreme Court of Alaska held in part that the

     "plaintiffs used the testimony, in part, to show a pattern of reckless alcohol sales to minors in support of their punitive damages claim. This was permissible 'other acts' evidence used to demonstrate potentially reckless behavior by DelRois. The superior court did not give a limiting instruction to the jury about the permissible and impermissible uses of this testimony. Alaska Rule of Evidence 105 states that when evidence is admissible for one purpose but not another, the court shall restrict the evidence to its proper scope and instruct the jury accordingly-but only upon request. Here, DelRois did not request a limiting instruction, and thus cannot complain that none was given."

On this latter point, the Alaska Supremes were clearly correct.  Alaska Rule of Evidence 105 indicates that:

     "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. In cases tried to a jury, evidence inadmissible as to one party shall not be admitted as to other parties until the court has made all reasonable efforts to effectively delete all references to the parties as to whom it is inadmissible."

The key phrase here is "upon request," and because DelRois did not request a limiting instruction, it could not complain on appeal that one should have been given. At the same time, it seems to me that such a limiting instruction would have been futile.  Alaska Rule of Evidence 404(b) states that:

     "Evidence of other crimes, wrongs, or acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith. It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

Thus, for instance, the prosecution in a trial for safecracking could introduce the defendant's prior crimes of safecracking not to prove "Once a safecracker, always a safecracker," but to prove knowledge, i.e., that the defendant knew how to crack safes.  And defense counsel could ask for a limiting instruction stating:

     "You have heard evidence of acts of the defendant other than those charged in the indictment. You may consider this evidence only on the question of knowledge. You should consider the evidence only for this limited purpose."

Now, you might question whether jurors would follow such a limiting instruction, but the instruction at least seems to make sense in terms of what the jurors should and should not consider.

But we can contrast this with the situation in Walker.  The testimony by the other minors was not admissible to prove "Once an underage alcohol seller," but it was admissible to prove that DelRois had a pattern of selling alcohol to minors.  Thus, a limiting instruction might have stated:

     "You have heard evidence of acts of the defendant other than those charged in the indictment. You may consider this evidence only on the question of pattern (or common plan or scheme). You should consider the evidence only for this limited purpose."

A limited purpose indeed!  Now, it is true that there is a legal distinction between propensity/conformity evidence and pattern/common plan or scheme evidence. But even legal experts struggle with the nature of this distinction, and I don't see how a limiting instruction such as the one listed above would be helpful in any way to the defendant/jury. 

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/01/limiting-instru.html

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