Conroe Criminal Defense Lawyer - Rules of Evidence Series RULE 105

Brian Foley, Conroe Criminal Defense Lawyer and legal pundit on the Rules of Evidence welcomes you back to our evidence series. Today we discuss Rule 105. Rule 105 is the rule of Limited Admissibility which states that if the court admits for a specific reason and not because it is generally relevant then the opposing party can request a “limiting instruction.” This means for example that if a lawyer is questioning a witness about a prior felony conviction to make them seem like they are untrustworthy, then you can request a limiting instruction that the evidence of a prior conviction should only be considered for the limited purpose of “impeachment.” Impeachment, in this context, means bringing something up about the witness or the witness statement that makes them look like they’re lying or mistaken. In Logan v. State 71 S.W.3d 865 (Tex. App. – Ft. Worth 2002, pet. ref’d) an affidavit of non-prosecution was offered into evidence but excluded by the trial judge. The court of appeals held that it would have been admissible for the limited purpose of impeachment but the lawyer who attempted to offer it into evidence didn’t suggest that it should be offered for impeachment at trial. His client was out of luck at that point and couldn’t complain about the mistake after the fact. The lesson for criminal defense lawyers here is that you need to make a decision on how much you think the evidence may hurt. If you object and ask that the jury specifically be limited to using that horrible piece of evidence to some limited purpose it can serve to highlight how damaging you think the information is. If you fail to object to its introduction for a limited purpose at the time it is originally offered you can waive future challenges to this error. The opposite is true as well in that if you are seeking to offer evidence and the court prevents you from doing so you cannot complain on appeal unless you offer it for a more limited purpose. This is almost always advisable from a trial strategy perspective. It falls under the if at first you don’t succeed, try try again, rule. In this case if at first you don’t succeed in getting the evidence admitted, try try a limiting instruction. You’ll have to be careful how you use the evidence in closing argument but evidence that is heard by the jury is better than evidence that is excluded. So if you get a limiting instruction when does it have to be given? The Dallas Court of Appeals decided that it is not reversible error to refuse to give a limiting instruction to the jury when the statement was offered into evidence for a limited purpose related to prior inconsistent statements. Thompson v. State, 752 S.W.2d 12, (Tex. App. – Dallas 1988). At the end of the trial there should also be an instruction in the jury charge itself which requires the State to prove the evidence beyond a reasonable doubt before it can be used for example in the case of extraneous offenses or “bad acts” other than the one for which the defendant is on trial. The Court of Criminal Appeals has ruled that the trial judge doesn’t have to tell the jury about the burden of beyond a reasonable doubt at the same time the evidence is offered but it does have to include that language in the jury charge at the end of the trial. Delgado v. State, 235 S.w.3d 244, 251 (Tex. Crim. App. 2007).

Rule105. Evidence That Is Not Admissible Against Other Parties or for Other Purposes

(a)  Limiting Admitted Evidence. 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 request, must restrict the evidence to its proper scope and instruct the jury accordingly. 


(b)  Preserving a Claim of Error. 


(1) Court Admits the Evidence Without Restriction. A party may claim error in a ruling to admit evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—only if the party requests the court to restrict the evidence to its proper scope and instruct the jury accordingly.

(2) Court Excludes the Evidence. A party may claim error in a ruling to exclude evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—only if the party limits its offer to the party against whom or the purpose for which the evidence is admissible.