Category Archives: Rule 105

Limiting the Damage

So you lose an evidentiary argument and the court allows some potentially prejudicial evidence to be presented for some narrow purpose such as bias, impeachment or to show intent, similar plan, motive or scheme.  So what should you do?  

Indiana follows “the rule of multiple admissibility” endorsed by the evidence treatises of both Whitmore and McCormick. Under this rule, evidence that is admissible for one purpose is admissible, even though it might be excluded from consideration by the jury if it was offered for another improper purpose.  The opponent of the evidence is protected, not by exclusion of the evidence, but instead by the use of a limiting instruction. Indiana Evidence Rule 105 provides:

 “If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.”

The party seeking to limit the evidence has the duty to request the instruction. Small v. State, 736 N.E.2d 742, 746 (Ind. 2000) (observing “a trial court has no affirmative duty to admonish a jury sua sponte as to such evidentiary matters”).  As a result you should ask the court to specifically define the area of use and address inappropriate inferences or uses which are prohibited.  Indiana Pattern Instruction No. 527 Evidence Admitted for a Limited Purposes states:

During the trial, I instructed you to consider certain evidence only for specific, limited purposes. You must consider that evidence only for those limited purposes.

Evidence relevant for some legitimate purpose,  can only be excluded if it violates the precepts of Indiana Rule of Evidence 403.  Under this rule, the danger of unfair prejudice has to substantially outweigh the evidence’s probative value in order to exclude it, thereby tipping the scales in favor of admissibility.

Keep these thoughts in mind the next time you need to limit the damage…

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