Changes in Washington Practice Report (#7) / Use of limiting instructions

December 18, 2013

Washington State LawThis is installment #7 in a continuing series of Changes in Washington Practice Reports.

As noted by Tegland, “(T)he Washington Supreme Court has established new guidelines for the use of limiting instructions under Evidence Rule 404(b)”—as stated in the insert “Highlights” for the 2013-2014 edition of the Courtroom Handbook on Washington Evidence, volume 5D of Washington Practice.

Citing the “landmark case of State v. Gresham (173  Wash.2d  405,  269  P.3d 207 (2012)), Tegland has noted in the Handbook (section 404:32) that the Supreme Court has established “ground rules” for limiting instructions.

In general, the trial court has a responsibility to give a limiting instruction only if asked to do so; an instruction must be given if requested; the requesting party may be asked to draft the instruction or the court may do so; an instruction must provide a correct statement of the law; and lack of giving an instruction may be regarded as harmless error in some circumstances.

As further noted by Tegland, “The apparent clarity of the rules announced in Gresham can be deceptive. In practice, the real difficulty is in drafting a limiting instruction. The reported cases are of little assistance….”

Further background on ER 404(b) may be found in Evidence Law and Practice by Tegland, volume 5 of Washington Practice, section 404.35.

As noted there, “The cases suggest that the court should specify the limited purpose for which the evidence is admissible, and instruct the jury to disregard the evidence for other purposes. A general, laundry-list type of instruction based upon the language of Rule 404(b) is insufficient to neutralize prejudice to the defendant….”

Citation is given to a “generic limiting instruction” in the Washington Practice Jury Instructions—Criminal, volume 11 of Washington Practice (section WPIC 5.30).

As noted there, “In some circumstances, an instruction such as this (general use version) may be inadequate to neutralize the prejudicial effect of the evidence,” Referral is made back to volume 5 of Washington Practice.

The 2013-2014 Criminal Jury Instruction Handbook by Fine (volume 11B of Washington Practice) also discusses limiting instructions, in the context of a case involving a no-contact order (section 5:4).

Based on these materials, an attorney must be able to creatively apply general resources materials in order to create an appropriate limiting instruction for a given case. There is no one-size-fits-all form. The courts will judge the appropriateness of the instruction by seeking to apply general concepts and to assess whether the proposed material is satisfactory for a specific use.

A search for discussions of limiting instructions may start with Methods of Practice (volume 1A) by Mitchell and Mitchell, with the “Resource Guide for Evidence” (section 42:3) to identify the relevance of Evidence Rule 404(b), and with section 32:6 where summary commentary is provided regarding this rule.

From these starting points, more detailed searches may proceed with the other Washington Practice materials covered above.