RULE 105. LIMITED ADMISSIBILITY
Whenever evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
Evidence is often admissible for one purpose, but not for another. Whenever this occurs the trial judge may decide, under Rule 403, that the prejudicial effect of admitting the evidence outweighs its probative value and exclude the evidence entirely. But total exclusion of evidence which has some probative value is a harsh remedy and, especially in civil cases, as McCormick has suggested, should be used only
"where the danger of the jury's misuse of the evidence for the incompetent purpose is great, and its value for the legitimate purpose is slight or the point for which it is competent can readily be proved by other evidence. * * *" McCormick on Evidence 136.
Normally, the decision made will be to admit the evidence. In these situations, this rule requires that a court restrict the evidence to its proper scope and instruct the jury accordingly.
Situations in which evidence is admissible as to one party but not to another usually occur in a joint trial of criminal defendants. Rule 105 applies to these situations, but its use must be carefully considered in light of constitutional protections surrounding criminal defendants. For example, it has been held that allowing the admission of statements made by a defendant who refused to testify, exculpating himself and incriminating a co-defendant, was a deprivation of the latter's right to cross-examination and, furthermore, that instructions restricting the use of the evidence were not sufficient to cure the problem of the jury's possible misuse of the evidence. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). But see Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), holding that not all violations of Bruton are reversible error.
SOURCES: Minutes of Joint Procedure Committee: April 8, 1976, page 17; October 1, 1975, page 2. Rule 105, Federal Rules of Evidence; Rule 105, SBAND proposal.
CONSIDERED: Rules 8, 13, and 14, NDRCrimP.