Vermont Court Holds That Cautionary/Limiting Instruction Was “Patently Inadequate” (Vermont)

In Smith v. State, 2010 VT 15, P10-P14 (Vt., No. 08-396, 2010) the defendant contended that  he was denied a fair trial by the erroneous admission of evidence of prior uncharged sexual misconduct. The claim arose out of events occurring on the first day of trial, during defendant's cross-examination of E.C., the friend to whom B.H. first reported the assault. Defense counsel informed the court that, the night before trial, she had received from the state's attorney a CD recording of the police interview of E.C. To show certain alleged discrepancies between E.C.'s trial testimony and the interview, defense counsel proposed to play the recording for the witness. The state's attorney had no objection and accordingly played the CD in open court up to a certain point, when he abruptly stopped it in mid-recording. The court then observed that the recording was “getting into” certain objectionable areas, referring to E.C.'s clearly audible statement that B.H. had discussed “the fact that [defendant] was molesting [his] wife or girlfriend's daughter.” Shortly thereafter, E.C. repeats the allegation, recalling that B.H. “had also mentioned that [defendant] had raped or molested his wife or girlfriend's daughter.”

A bench conference followed, in which the state's attorney requested a cautionary instruction and defense counsel moved for a mistrial. The court denied the mistrial motion on the basis that the recording had been “admitted by agreement,” but invited defense counsel to comment on the prosecutor's request that it direct the jury to ignore the last part of the recording. Defense counsel declined to join in the request and renewed her motion for a mistrial, which the court again denied. The court then instructed the jury that the “last portion of the recording … was not meant for you to hear” and that it should “ignore that last statement that was made.”

The reviewing court concluded that the limiting instruction did not cure the error: “Even under a plain-error standard, however, we are compelled to conclude that the instruction was patently inadequate to negate the potential prejudice inherent in the offending statements. Although the court understandably did not wish to repeat the statements, its limiting instruction was so vague as to be pointless. The instruction was given several minutes after the recording was played and referred simply to ‘that last portion’ and ‘that last statement’ on the recording although the objectionable statements were multiple and were not actually the witness's last remarks. Moreover, the instruction provided no clear and specific direction to the jury, by instructing, for example, that defendant was not on trial for any actions other than those specifically charged and that under no circumstances was the jury to consider for any purpose the inadvertent allusions to defendant's alleged misconduct. [Citations.]” Id.. at P10.

For subscription based briefing and sample instructions on this and related issues see:

Forecite National™
4.3.2 - Cautionary And Limiting Instructions: Requests And Objections
Chapter 26: Limited Purpose Evidence
Forecite California™
PG VI(C)(1.1) - A Cautionary Or Limiting Instruction Should Not Be Given Over A Tactical Objection By The Party Benefits From The Instruction PG X(E)(19)(1) - Inability Of Limiting Instructions To Cure Error