2.6-5 Other Misconduct of Defendant
Revised to May 10, 2012
Note: When evidence of the other misconduct is being offered to show that the defendant engaged in aberrant and compulsive criminal sexual behavior, see Other Misconduct - Criminal Sexual Behavior, Instruction 2.6-13.
The state has offered evidence of other acts of misconduct of the defendant. This is not being admitted to prove the bad character, propensity or criminal tendencies of the defendant. Such evidence is being admitted solely to show or establish: <insert one or more of the following:>1
the defendant's intent.
the identity of the person who committed the crimes alleged.
malice on the part of the defendant against the (complainant/decedent).
a motive for the commission of the crimes alleged.
that the commission of the crimes follows a common plan or scheme.2
absence of mistake or accident on the part of the defendant.
the defendant's knowledge.
a system of criminal activity being engaged in by the defendant.
an element of the crime of <insert name of offense>.
the complete story as presented by the prosecution.
You may not consider such evidence as establishing a predisposition on the part of the defendant to commit any of the crimes charged or to demonstrate a criminal propensity.
You may consider such evidence if you believe it and further find that it logically, rationally and conclusively supports the issue[s] for which it is being offered by the state, but only as it may bear on the issue[s] of <describe purpose of admitting evidence>.
On the other hand, if you do not believe such evidence, or even if you do, if you find that it does not logically, rationally and conclusively support the issue[s] for which it is being offered by the state, namely <describe purpose of admitting evidence>, then you may not consider that testimony for any purpose.
You may not consider evidence of other
misconduct of the defendant for any purpose other than the one[s] I've just told
you, because it may predispose your mind uncritically to believe that the
defendant may be guilty of the offense here charged merely because of the
alleged other misconduct. For this reason, you may consider this evidence only
on the issue[s] of <describe purpose of admitting evidence>, and for no
1 See Code of Evidence § 4-5 (c). The purposes listed are intended to be illustrative rather than exhaustive. See Commentary to § 4-5.
2 See State v. Randolph, 284 Conn. 328 (2007), for a discussion of the limitations of the common plan or scheme exception in proving identity.
The acts of misconduct may have been prior or subsequent to the charged offense. State v. Bunker, 89 Conn. App. 605, 631-32 (2005), appeal dismissed, 280 Conn. 512 (2006).
This instruction may be used when the other misconduct is a charged or uncharged offense, but must be modified accordingly. It should be narrowly tailored to refer only to the specific purpose for which the evidence was presented. See State v. Jones, 205 Conn. 638 (1987) ("[T]he instructions focused the jury's attention on the precise factors that the trial court had considered when it made its threshold finding of admissibility."). "[W]hen evidence of the defendant's other crimes is admitted for a limited purpose, there is the danger that the jury nevertheless will misuse the evidence and infer improperly that the defendant committed the charged offense because he had committed other crimes in the past. Accordingly, in order to vitiate this potential prejudice, we generally have required the trial court, sua sponte if necessary, to instruct the jury as to the limited purpose for which such evidence is admitted and for which it is to be considered." (Internal quotation marks omitted.) State v. Ouellette, 190 Conn. 84, 96 (1983); State v. Huckabee, 41 Conn. App. 565, 575, cert. denied, 239 Conn. 903 (1996) (given the numerous incidents of prior misconduct presented, the defendant was entitled to a limiting instruction). However, in the absence of an objection to the admission of the evidence or a request to instruct, the court is not required sua sponte to give a limiting instruction. State v. Cator, 256 Conn. 785, 800-802 (2001).
A cautionary instruction may be given before the testimony or directly after in addition to including it in the court's final charge. See State v. William C., 103 Conn. App. 508, 516-20, cert. denied, 284 Conn. 928 (2007); State v. Torres, 57 Conn. App. 614, 620 n.3, n.4, n.5, cert. denied, 253 Conn. 927 (2000).
"[I]t is not necessary that a trial court instruct the jury that it must find, by a preponderance of the evidence, that prior acts of misconduct actually occurred at the hands of the defendant. Instead, a jury may consider prior misconduct evidence for the proper purpose for which it is admitted if there is evidence from which the jury reasonably could conclude that the defendant actually committed the misconduct." State v. Cutler, 293 Conn. 303, 322 (2009).