The Florida Bar
www.floridabar.org
The Florida Bar Journal
December, 2013 Volume 87, No. 10
Broadening Horizons: The Unnecessary Limitations of Florida’s Collateral Crimes Jury Instructions

by Kyle B. Sill and Anna Haugen

Page 20

F.S. §§90.404(2)(a) and (b) (2012) permit — very broadly — the use of “other crimes, wrongs, or acts” — colloquially referred to as Williams rule evidence or collateral crimes evidence.1 The only exclusion to admission under subsection (a) is when “the evidence is relevant solely to prove bad character or propensity.”2 Subsection (b) goes even further in cases of child molestation, in which evidence of “other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.”3 Contrary to this mandate, however, Standard Instructions (Criminal) 2.4 and 3.8(a), which detail the admissibility of collateral crimes evidence,4 unnecessarily limit the broad reach of the statutory language. Accordingly, prosecutors would be wise to seek a special instruction that better encompasses the full breadth of the statutory language, and the jury instruction committee should seek to amend the instructions to coincide better with current law.

Standard Jury Instructions
The Florida Supreme Court established a jury instructions committee in 1962. As a result of its work came the Florida Standard Jury Instructions and later the Florida Standard Jury Instructions in Criminal Cases.5 The goal is simple: to explain the law accurately and in a manner that can be understood by lay jurors.6 While the goal is simple, the process to achieve this goal, on the other hand, is detailed, arduous, and time-consuming.7 A 32-member committee8 comprised of attorneys and judges must meet, research, discuss, come to a consensus, and draft.9 Then, the committee’s proposed instruction is published for review and comment by the Bar, with final approval and publication being the province of the Florida Supreme Court.10

With this amount of labor invested in standard instructions, it is no wonder courts do, and sometimes must, look to the standard instructions first.11 However, the “Catch-22” of the extensive time and labor is that “committees do not have the ability to immediately provide or update instructions on demand, nor do the standard instructions purport to cover all cases or crimes.”12 Accordingly, sometimes a standard instruction is out-of-date, inadequate, or improper for a given case or circumstance.13 In these situations, counsel may request a special instruction — one that would more fully and accurately instruct the jury on the law.14 Similarly, even when a standard instruction is accurate, counsel may request a special instruction. It is an abuse of discretion for a judge not to give the requested instruction when it is 1) an accurate statement of the law; 2) supported by the facts; and 3) necessary for the jury’s resolution of the issues.15

Relevant Language
Statute — F.S. §90.404 (2012) provides, in pertinent part, as follows:

(2) Other crimes, wrongs, or acts.—

(a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

(b) 1. In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.16

Jury Instructions — Standard Jury Instruction 2.4 is used before the collateral crimes evidence is admitted:

The evidence you are about to receive concerning evidence of other crimes, wrongs, or acts allegedly committed by the defendant will be considered by you for the limited purpose of proving [motive] [opportunity] [intent] [preparation] [plan] [knowledge] [identity][the absence of mistake or accident] on the part of the defendant and you shall consider it only as it relates to [that] [those] issue[s].

However, the defendant is not on trial for a crime, wrong, or act that is not included in the [information] [indictment].17

On the other hand, Standard Jury Instruction 3.8(a) is used at the conclusion of the case:

The evidence which has been admitted to show other crimes, wrongs, or acts allegedly committed by the defendant will be considered by you only as that evidence relates to proof of [motive] [opportunity] [intent] [preparation] [plan] [knowledge] [identity] [the absence of mistake or accident] on the part of the defendant.

The defendant cannot be convicted for a crime, wrong, or act that is not included in the [information] [indictment].18

If the collateral evidence will be presented, the trial court must, if requested, charge the jury on the limited purpose for which the evidence is received and is to be considered.19

Analysis
Application Under F.S. §90.404(2)(a): All Criminal Cases — Section 90.404(a) mandates that collateral crimes evidence will not be excluded merely because it relates to similar facts that point to the commission of a separate crime.20 Collateral crimes evidence may be offered by the state against a criminal defendant as well as by a criminal defendant to support his or her theory of defense.21 However, such evidence has to be relevant to prove a material fact in issue. Section 90.404(a) provides that a material fact in issue may include, but is not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In other words, the section includes the most common material facts in issue; it indicates the list is not exhaustive, but merely illustrative. That is because the legislature explicitly chose to use the phrase “when relevant to prove a material fact in issue, including, but is not limited to….”22 For instance, the state may introduce collateral crimes evidence to disprove an alibi or other defense asserted by a criminal defendant; such uses of collateral crimes evidence are permissible, yet not enumerated in subsection (a).23

Nevertheless, Standard Jury Instruction 2.4 indicates that collateral crimes evidence may be introduced for the limited purpose of proving motive, opportunity, intent, preparation, plan, knowledge, identity, the absence of mistake or accident. This instruction does not inform that this is a nonexhaustive list, only enumerating examples of possible material facts at issue that can be established by such evidence. More problematic, the instruction clearly states that such evidence may be considered only as it relates to those listed issues. Similarly, Standard Jury Instruction 3.8(a) contains the same closed list from Standard Jury Instruction 2.4 and provides that collateral crimes evidence can be considered by the jury only as that evidence relates to proof of motive, opportunity, intent, preparation, plan, knowledge, identity, and the absence of mistake or accident.

Accordingly, the plain language of both instructions indicates there is an exhaustive list of material facts at issue that can be established by collateral crimes evidence, and that such evidence may only be considered as it relates to the issues enumerated on the exhaustive list. Such constructions of F.S. §90.404(2)(a) clearly contradict the intent of the legislature and are erroneous. They exclude possibilities of proving any other material facts at issue, such as disproving alibi or other defense asserted by a criminal defendant.

Application of F.S. §90.404(2)(b): Child Molestation Cases — The unnecessary limitation occurring in all criminal cases is even more apparent in cases of child molestation. In this instance, the instructions are more limiting. In child molestation cases, §90.404(2)(b) provides for the open-ended usage of collateral crimes relating to other instances of child molestation.24 Here, collateral crimes of child molestation “may be considered for [their] bearing on any matter to which it is relevant.”25 Consistently, instructions 2.4 and 3.8(a) are currently used — unmodified — in child molestation cases.

As detailed, the instructions specifically limit the statutes’ broad, nonexhaustive list to motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. Yet, in child molestation prosecutions with collateral acts of child molestation, F.S. §90.404(2)(b) opens the floodgates to much more: Any matter to which the collateral acts may be relevant — limited only by other rules of evidence and not this section.26 Instances in which permissible uses fall outside the standard list are axiomatic in child molestation cases.27

In fact, the Florida Supreme Court has specifically provided for the use of collateral acts of child molestation for the purpose of corroboration — a use clearly contemplated by, but not a part of, the nonexhaustive presentation in F.S. §90.404(a).28 In McLean v. State, 934 So. 2d 1248 (Fla. 2006), the Florida Supreme Court found that collateral acts of child molestation could be used for the purpose of corroboration and exhaustively detailed the history of using such acts.29 The court ultimately held that blanket admission was tempered only by other rules in the Florida Evidence Code, namely F.S. §90.403’s probative versus unfairly prejudicial balancing.30 Focusing on relevance as the key to the analysis of §90.403, the court confirmed the broad admission of collateral crimes evidence in child molestation cases.31

Yet interestingly, prosecutors seeking to introduce the collateral crimes evidence will use the standard instructions without modification. This is not to say they do not argue the clearly permissible use to the jury; instead, it is to emphasize that the incorrect instruction is provided to the jury, only to then be taken into the jury room to become a part of deliberations. If juries are provided conflicting, inaccurate instructions, this result could potentially produce deleterious effects.

Solutions
Two solutions seem apparent. The first, and the simplest, can take effect immediately, without regard to the time involved in the legislative, court, or committee on jury instructions processes. Attorneys should seek a special instruction consistent with F.S. §90.404(2)(a) and (b). Second, and as a long-term solution, the committee on jury instructions should redraft instructions 2.4 and 3.8(a) to comport with the statutory requirements and consider drafting an additional instruction for use in child molestation cases under F.S. §90.404(2)(b).

Seek Special Instructions — Given the permissibility of collateral crimes evidence when “relevant to prove a material fact in issue,” attorneys should seek special instructions tracking this language and inserting the appropriate use. Further, counsel should alter the last sentence to more accurately reflect the state of the law. And, in most cases, it would be reversible error for the judge to refuse to give the instruction.32

For example, counsel could request an instruction providing as follows:

The evidence you are about to receive concerning evidence of other crimes, wrongs, or acts allegedly committed by the defendant will be considered by you for the limited purpose of rebutting the defendant’s alibi. You shall consider it for this purpose, and not to show that the defendant acted in conformity with the other crime, wrong, or act on the charged occasion.

Or, if it is a case of child molestation:

The evidence you are about to receive concerning evidence of other crimes, wrongs, or acts allegedly committed by the defendant will be considered by you for the limited purpose of corroborating the victim’s testimony. You shall consider it for this purpose, and not to show that the defendant acted in conformity with the other crime, wrong, or act on the charged occasion.

Of course, there are a vast number of potential variations to this verbiage, just as there is a vast number of permissible uses for collateral crimes evidence — especially in the child molestation context. Counsel should draft special instructions accordingly, tracking the relevant use and the language of F.S. §90.404(2)(a) or (b). The goal is to preserve the right of the defendant, not to have the jury improperly use the evidence for an impermissible use (e.g., character), and to maintain the broad right to use the evidence for its host of permissible purposes.

Update the Standard Instructions — In accord with counsel’s use of special instructions to portray the breadth of collateral crimes evidence accurately, it is also necessary to revise the standard instructions. That is because the current instructions create a seemingly definitive list — and any revision of the standard instructions should address this issue. Second, the current standard instructions limit the jury to using the evidence only as it relates to the previously defined issue or issues.

As a potential solution, the instruction could more closely track the language of §90.404(a) and could read as follows:

The evidence you are about to receive concerning evidence of other crimes, wrongs, or acts allegedly committed by the defendant will be considered by you for the limited purpose of proving [counsel to fill in blank], a material, relevant fact in issue in this case.

This evidence is limited to this purpose and may not be considered by you for purposes of [the defendant’s] character or [his/her] propensity to commit crime[s]. [The defendant] is not on trial for this crime, wrong, or act that is not included in the [information] [indictment].

The second instruction, given at the conclusion of the case, should be similarly amended in the following manner:

The evidence which has been admitted to show other crimes, wrongs, or acts allegedly committed by [the defendant] will be considered by you for the limited purpose of proving [counsel to fill in blank], a material, relevant fact in issue in this case.

[The defendant] cannot be convicted for this crime, wrong, or act that is not included in the [information] [indictment].

Such instructions, while broad, comport with the breadth of the statute and permit attorneys to do their jobs by determining the appropriate purpose of the evidence, without being unnecessarily limited by a nonexhaustive list that made its way into the current instruction.

In cases of child molestation, however, F.S. §90.404(2)(b) includes no limitation to using the collateral crimes evidence to show bad character or propensity. For certain, other rules of evidence, namely §§90.403 and 90.401, operate as gatekeepers, and this would be something counsel would raise and receive rulings on pretrial. But, F.S. §90.404(2)(b), itself, provides no such limitation. Thus, separate instructions in cases of child molestation are likely necessary and could read as follows:

The evidence you are about to receive concerning evidence of other crimes, wrongs, or acts allegedly committed by [the defendant] will be considered by you for the limited purpose of proving [counsel to fill in blank], a material, relevant fact in issue in this case. Your use of the evidence is limited to this purpose.

[The defendant] is not on trial for this crime, wrong, or act that is not included in the [information] [indictment].

The second instruction, given at the conclusion of the case, should be similarly amended and could read:

The evidence which has been admitted to show other crimes, wrongs, or acts allegedly committed by [the defendant] will be considered by you for the limited purpose of proving [counsel to fill in blank], a material, relevant fact in issue in this case. Your use of the evidence is limited to this purpose.

[The defendant] cannot be convicted for this crime, wrong, or act that is not included in the [information] [indictment].

These updates would better express the legislature’s explicit intent and encompass the breadth of the legislature’s language.

Conclusion
Statutorily, collateral crimes evidence is permissible “when relevant to prove a material fact in issue” — whatever that material fact in issue may be.33 Current Standard Jury Instructions 2.4 and 3.8(a) unnecessarily limit this to a defined list, and “only as it relates to [that] [those]” listed items.34 Counsel should, thus, begin to request special instructions, which most of the time must be granted, until the jury instructions committee can undertake the process of accordingly revising the current instructions. Until then, juries run the risk of receiving instructions contrary to counsels’ arguments, attorneys run the risk of under utilizing otherwise admissible evidence, and the system falls prey to the potential for confusion.


1 Fla. Stat. §§90.402(2)(a) and (b) (2012); Williams v. State, 110 So. 2d 654, 663 (Fla. 1959).

2 Fla. Stat. §90.402(2)(a).

3 Fla. Stat. §90.402(2)(b). But see McLean v. State, 934 So. 2d 1248, 1261 (Fla. 2006) (limiting this rule by the application of the balancing test prescribed by Fla. Stat. §90.403).

4 Fla. Std. Jury Instr. (Crim.) 2.4, 3.8(a).

5 Ralph Artigliere & William Artigliere, Nature of Jury Instructions, How to Write and Use Jury Instructions in Civil and Criminal Cases (The Florida Bar 2007) [hereinafter Nature of Jury Instructions].

6 Id.

7 See, e.g., Larry Stewart, The Rebirth of the Florida Standard Civil Jury Instructions, 84 Fla. B. J. 12, 14 (May 2010) (explaining and detailing the three-year process in developing new civil rules) [hereinafter Rebirth].

8 R.J. Reynolds Tobacco Co. v. Jewett, 106 So. 3d 465, 469 (Fla. 1st DCA 2012).

9 Id. at 469 n.4; Artigliere & Artigliere, Nature of Jury Instructions (explaining the priority “is to focus on instructions requested by the court and those that are most often encountered and most needed, and to respond to changes in the law that affect current standard instructions”).

10 Jewett, 106 So. 3d at 469, n.4; Artigliere & Artigliere, Nature of Jury Instructions.

11 Stewart, Rebirth at 17-18 (acknowledging jury instructions are not “law,” but stating “trial courts are required to use standard instructions or declare for the record why alteration is needed to fully or accurately instruct the jury on the law”).

12 Artigliere & Artigliere, Nature of Jury Instructions.

13 Id.

14 Stewart, Rebirth at 18 n.15.

15 See Mills v. State, 949 So. 2d 1186, 1188 (Fla. 1st DCA 2007); see also Jewett, 106 So. 3d at 467 (adding that the special instruction must not be duplicative of other instructions, and the failure to give it must be prejudicial to the requesting party).

16 Fla. Stat. §90.404(2)(a)-(b).

17 Fla. Std. Jury Instr. (Crim.) 2.4.

18 Fla. Std. Jury Instr. (Crim.) 3.8(a).

19 Fla. Stat. §90.404(2)(c)(2); Pope v. State, 679 So. 2d 710, 714 (Fla. 1996) (concluding that the trial court did not err in failing to give a limiting instruction as “[i]n order to be entitled to a limiting instruction, a [party] must request such an instruction”).

20 McLean v. State, 934 So. 2d 1248, 1255 (Fla. 2006).

21 Rivera v. State, 561 So. 2d 536, 539 (Fla. 1990) (internal quotations omitted) (“While most cases generally involve the offer of similar fact evidence by the prosecution against a defendant in a criminal case, there is nothing in the language of [Fla. Stat. §90.404(2)(a) (1985)] which precludes the use of evidence offered by a defendant in a criminal case, or by a party in a civil action.”).

22 Swafford v. State, 533 So. 2d 270, 274-75 (Fla. 1988) (admissions of a party opponent are admissible because “[t]he examples given in Williams and in subsection 90.404(2)(a) are not an exclusive list of the purposes for which such evidence can be found relevant”); Travers v. State, 578 So. 2d 793, 796 (Fla. 1st DCA 1991) (“While ‘pattern of criminality’ is not one of the permissible uses of Williams rule evidence listed in section 90.404(2)(a), Florida Statutes (1987), that list is not exhaustive, but only illustrative.”).

23 Thomas v. State, 132 Fla. 78, 86 (1937) (“Undoubtedly the state can rebut the testimony of a defendant tending to establish an alibi even if to do so it becomes necessary to introduce evidence which shows the commission of an entirely distinct offense from that for which the defendant is on trial.”); Perez v. State, 856 So. 2d 1074, 1077 (Fla. 5th DCA 2003) (concluding that the evidence of the defendant’s prior conviction for possession of cannabis with intent sell was admissible to rebut a defense of entrapment in prosecution for trafficking heroin).

24 Fla. Stat. §90.404(2)(b); see also Fla. Stat. §90.404(2)(c) (providing the exact broad-based admission for “sexual offenses”). The analysis here is exactly the same; we have omitted it as duplicative.

25 Fla. Stat. §90.404(2)(b)(1) (emphasis added).

26 Fla. Stat. §90.404(2)(b).

27 See McLean v. State, 934 So. 2d 1248 (Fla. 2006).

28 See id. at 1258.

29 See id. at 1256-58.

30 See id. at 1259-62.

31 See id. at 1262-63.

32 See Mills v. State, 949 So. 2d 1186, 1188 (Fla. 1st DCA 2007); see also Jewett, 106 So. 3d at 467 (adding the special instruction should not be duplicative of other instructions, and the failure to give it should be prejudicial to the requesting party); Stewart, Rebirth at 17-18 (acknowledging jury instructions are not “law,” but stating “trial courts are required to use standard instructions or declare for the record why alteration is needed to fully or accurately instruct the jury on the law”).

33 Fla. Stat. §90.404(2)(a)-(b).

34 Fla. Std. Jury Instr. (Crim.) 2.4.


Kyle Bradley Sill is a judicial law clerk for Judge Nikki Ann Clark, Florida First District Court of Appeal. He earned his J.D., summa cum laude, from the Florida Coastal School of Law, and his B.S. in legal studies from The University of Central Florida. The views expressed herein are solely those of the author and do not reflect those of any organization or entity with which he is affiliated.

Anna Haugen is a judicial law clerk for Judge Jerry A. Funk of the U.S. Bankruptcy Court for the Middle District of Florida. She earned her J.D., cum laude, and her LL.M. in comparative law from the University of Florida Levin College of Law. She also holds a masters in law from the University of Warsaw, Poland. The views expressed herein are solely those of the author and do not reflect those of any organization or entity with which she is affiliated.

[Revised: 11-26-2013]