NCJIC 16.7 [Court's Duty To Inquire Into Juror Misconduct]

Although FRCRP 29 motions regarding dismissal of defendants and/or counts should be granted when appropriate, the granting of such motions may impact the trial as to the remaining defendants and/or counts. Defendants or counts that have been discharged may have occasioned evidence to be introduced in the joint trial of the remaining defendants that would not otherwise have been presented. Motions for mistrial may then be made on the ground that the removed defendant or count should never have been before this trier of fact and that a fair trial cannot be had under those circumstances. United States v. DeRosa, 670 F.2d 889 (9th Cir. 1982), cert. denied, 459 U.S. 993 (1982) and 459 U.S. 1014 (1982).

Many times codefendants in a joint trial either enter a plea or are severed or dismissed. It is recommended that Instruction 2.13 from the NINTH CIRCUIT MANUAL OF MODEL JURY INSTRUCTIONSCriminal (2003) dealing with the problem of the severed or dismissed defendant (or one of similar import) be utilized. This is a neutral, short explanation which, in effect, instructs the jury that the matter is no longer before them and should not be considered by them in any way in reaching the result as to the remaining defendants whose cases remain before them for resolution.