Moving For Severance? Don’t Forget To Look At The Jury Instructions

(January 1999)

by Thomas Lundy

    Typically, a severance motion will focus on the evidence to show a need for severance based on factors such as mutually antagonistic defenses, evidence which is inadmissible as to the moving defendant, disparate levels of culpability, danger of guilt by association, etc. (See Zafiro v. United States (93) 506 US 534, 539; see also People v. Massie (CA 1967) 66 C2d 899, 916.) However, jury instructions can also play a role in litigating a severance motion and should not be overlooked despite the pretrial status of the severance motion. The following are a few examples of how jury instructions may impact a severance motion.

1. Whether Cautionary or Limiting Instructions Will Be Effective

    Invariably a joint trial will involve cautionary and limiting admonitions and instructions. (E.g., jury instructions to consider the case against each defendant separately, etc.) However the effectiveness of such instructions has been questioned. "It is the essence of sophistry and lack of realism to think that an instruction or admonition to a jury to limit its consideration of highly prejudicial evidence to its limited relevant purpose can have any realistic effect." (People v. Gibson (CA 1976) 56 CA3d 119, 130 [128 CR 302]; see also Krulewitch v. U.S. (49) 336 US 440, 453 [93 LEd 790] Jackson, J. concurring ["The naive assumption that prejudicial effects can be overcome by instructions to the jury, [citation], all practicing lawyers know to be unmitigated fiction. [Citation]"]; U.S. v. Figueroa (2nd Cir. 1980) 618 F2d 934, 943; U.S. v. Schiff (2nd Cir. 1979) 612 F2d 73, 82.) Indeed, it is the very premise of the Bruton (Bruton v. U.S. (68) 391 US 123) rule that cautionary instructions cannot prevent the prejudice flowing from a codefendant’s confession. (Gray v. Maryland (98) 523 US 185 [140 LEd2d 294, 298.] Accordingly, any assumption that severance may be denied by reliance on cautionary and limiting instructions to protect the defendant’s rights should be closely scrutinized.

2. Whether the Instructional Requests of the Codefendants Will Be Antagonistic

    Antagonistic defenses between co-defendants will often extend to the instructions. For example, one co-defendant may want raise a defense which would require instruction on a lesser included offense while the other may want the jury to be faced with an all-or-nothing choice. In such a case it would be difficult for the instructions to effectively and consistently convey both defenses to the jury.

    Another example is where both defendants elect not to testify and only one wants a cautionary instruction on the defendant’s right not to testify. In single-defendant cases, an instruction cautioning the jury not to draw an adverse inference from the defendant’s failure to testify is required upon request. (See Carter v. Kentucky (81) 450 US 288, 305 [67 LEd2d 241; 101 SCt 1112]; Lakeside v. Oregon (78) 435 US 333, 340-41 [55 LEd2d 319; 98 SCt 1091]; 75 AM JUR 2d trial, §§ 577-79. However, in multi-defendant cases where the co-defendants disagree about whether a Carter/Lakeside instruction should be given, there is an inherent conflict which the trial judge must resolve. Several cases have held that the conflict should be resolved in favor of giving the instruction because Carter requires the instruction be given. (See e.g., Melgoza v. Peters (7th Cir. 1991) 932 F2d 676, 677 [finding no error in trial court’s decision to give "no-inference" instruction upon codefendant’s request and defendant's objection]; People v. Brooks (IL 1084) 463 NE2d 1326, 1331 [124 Ill.App.3d 222] [finding that, in case of codefendant’s conflicting requests, there is "no constitutional infirmity so long as the trial court gives the tendered instruction"]; Lucas v. State (IN 1986) 499 NE2d 1090, 1093 [finding that a defendant’s right to an instruction must prevail over the codefendant’s state constitutional right to decide whether or not he wants the instruction]; Hardaway v. State (MD 1989) 562 A2d 1234, 1238 [317 Md. 160] [determining that the constitutional right of a defendant requesting the instruction must take precedence over the wishes of a codefendant objecting to the instruction]; see State v. Griffin (IA 1998) 576 NW2d 594 [same].)

    However, this result undermines the fundamental rule that the defendant should not be required to accede to cautionary instructions which will highlight a prejudicial matter. (See generally Annotation, "Propriety under Griffin v. California and prejudicial effect of unrequested instruction that no inferences against accused should be drawn from his failure to testify," 18 ALR3d 1335.) In fact, many cases have recognized that a violation of this rule, in the context of a Carter instruction, is prejudicial error. Hence, forcing an unwanted Carter/Lakeside instruction upon a defendant implicates the right against self-incrimination as well as the rights to due process, fair trial by jury and representation of counsel under the 5th, 6th and 14th Amendments.

    Other examples of potential instructional conflicts will undoubtedly become apparent upon review of the individual case. But unless this review is done before filing the severance motion, these conflicts may be missed as potential support for the severance motion.

3. Whether the Instructions Will Be Confusing to the Jury

    The failure to sever may produce special instructional problems which may confuse the jury. For example, in cases where one defendant contends that the offense was committed by a co-defendant, the difference in the burden of proof will likely be difficult for the jury to comprehend. The following instruction highlights this problem:

Clarification of the Burden of Proof When One Defendant Points the Finger at Another

    It is crucial that you understand that only the prosecution, not a defendant, bears the burden of proof. In this case, both the defendant ____________ and the prosecution contend that codefendant _______ is guilty of ____________. However, because the prosecution has the burden of proof and defendant________ does not, your decision as to whether codefendant ________ committed _______must actually be made twice under two different standards.

    One decision must be made as to whether the prosecution has met its burden of proving _________ guilty of _____ beyond a reasonable doubt.

    The other decision must be made as to whether the evidence of _______ guilt raises a reasonable doubt as to the guilt of defendant ___________.

    Thus, even if you decide that the prosecution failed to prove _______ guilty of _______ beyond a reasonable doubt, this does not prevent you from deciding that there still is enough evidence of codefendant's guilt to raise a reasonable doubt as to the guilt of the defendant.

    In multi-defendant trials when one defendant points the finger at another, the jury is required to perform the difficult task of judging a single factual issue under two distinct standards. In other words, when one defendant contends that the other is the guilty party, or otherwise is culpable, such as having provoked an altercation, the situation is analogous to third party guilt situations where the evidence of the other party’s guilt need only raise a reasonable doubt as to defendant’s guilt. (See People v. Hall (CA 1986) 41 C3d 826, 833 [266 CR 112].) However, when the alleged third party is a codefendant in the trial, the jury must also judge the party’s guilt under the prosecution’s burden of proof beyond a reasonable doubt. In such cases, there is a danger that the jury may not differentiate between the two different standards and reject the defendant’s contention that the co-defendant is guilty or culpable on the basis that the prosecution did not succeed in proving the co-defendant guilty beyond a reasonable doubt.

    The above instruction is intended to clarify this distinction which is a difficult task due to the complexity of the principles involved. Hence, the potential of juror confusion regarding the most fundamental issue of the prosecution’s burden would increase the risk of an "unreliable judgment about guilt or innocence." (Zafiro v. United States., 506 U.S. at 539.) Such a danger may provide added support for severance.

    In sum, the role of jury instructions in buttressing the need for severance is another important reason why review and analysis of jury instructions should be one of the first things a defense practitioner does after receiving a new case.

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