Muldoon, Getz & Reston

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Misusing evidence offered for limited purpose
By: Gary Muldoon
Muldoon, Getz & Reston
Rochester, New York

Evidence at trial may be offered for a limited purpose. With all evidence that is introduced restrictively, a “cautionary,” or “limiting instruction” is required, People v. Ricco, 56 NY2d 320 (1982). The instruction should be given twice: at the time the evidence is introduced as well as during final instructions.

One example of evidence offered for a limited purpose is a prior inconsistent statement: the statement itself is not introduced for its truth, and may be considered by the jury only for the purpose of impeachment. It is inadmissible as affirmative proof of the subject matter, People v. Montgomery, 22 AD3d 960 (3d Dept. 2005).

With this and other evidence, counsel on summation might make an improper argument, arguing to the jury that it is establishes something that is impermissible. When this happens, opposing counsel should object, People v. Montgomery, supra; see also, People v. Mohammed, 81 AD3d 983 (2d Dept. 2011); People v. Hughes, 72 AD3d 1121 (3d Dept. 2010).

Where the defendant takes the stand and is questioned at trial about a previous conviction, this may be considered by the jury on the defendant’s credibility. But it is impermissible to then use Sandoval evidence and parlay that into arguing that the defendant committed the crime, People v. Scott, 217 AD2d 564 (2d Dept. 1995); People v. Reyes, 64 AD2d 657 (2d Dept. 1978).

Similarly, misusing uncharged-crimes evidence on summation is reversible error, People v. Skinner, 298 AD2d 625 (3d Dept 2002); People v. Sayers, 64 AD3d 728 (2d Dept. 2009).

© 2013 by Gary Muldoon