A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter Three: The Trial Phase

3.16     Cautionary And Curative Instructions
            A. In General
            B. Severance During Trial and Need for Cautionary Instructions (Criminal)    

A MANUAL OF JURY TRIAL PROCEDURES - 2004

A.  Cautionary And Curative Instructions: In General

NCJIC Materials Related To This Issues:

NCJIC 3.2.3 [Duty To Give Cautionary Or Limiting Instructions]

NCJIC 4.3.2 [Cautionary And Limiting Instructions: Requests And Objections]

NCJIC 16.1.6 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice]

An admonition is of particular importance when a serious matter has occurred in the jurors' presence and an admonition to disregard is needed by the court. Many times, a very strict and emphatic admonition may save a case that in other circumstances would have to be retried. Williams v. Woodford, 384 F.3d 567, 627-28 (9th Cir. 2004).

In addition to a cautionary admonition during trial, the court should use a jury instruction at the end of the case on "What is Not Evidence." See 9TH CIR. CRIM. JURY INSTR. 3.7  (2003); 9TH CIR. CIV. JURY INSTR. 3.3 (2001).

In appropriate situations, the court should consider giving curative instructions to eliminate possible prejudice. Juries are presumed to follow curative instructions. Richardson v. Marsh, 481 U.S. 200, 211 (1987). However, "[t]here are some extreme situations in which curative instructions will not neutralize the prejudice when evidence is improperly admitted." Aguilar v. Alexander, 125 F.3d 815, 820 (9th Cir. 1997) (citations omitted.)

A MANUAL OF JURY TRIAL PROCEDURES - 2004

B.  Cautionary And Curative Instructions: Severance During Trial And Need For Cautionary Instructions (Criminal)

NCJIC Materials Related To This Issues:

NCJIC 16.19.1 [Severance Of Parties: Cautionary Instruction]

1. Decision to Sever

The issue of severance arises both prior to and during trial.

The party seeking a severance has a "heavy burden" to justify severance. The court should grant a severance only when there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Zafiro v. United States, 506 U.S. 534, 539 (1993).

Rule 8(b), Fed. R. Crim. P., allows for the joinder of two or more defenses or defendants in the same indictment or information. Rule 14(a), Fed. R. Crim. P., in turn, permits a court to grant a severance if the joinder of offenses or defendants or a consolidation for trial "appears to prejudice a defendant or the government."

"There is a preference in the federal system for joint trials of defendants who are indicted together." Zafiro, 506 U.S. at 537. As a result, as a general rule, defendants who are charged together will be tried together. United States v. Polizzi, 801 F.2d 1543, 1553 (9th Cir. 1986).

2. Cautionary Instructions as Alternative

In the event severance of a count or defendant is necessary after trial commences, the jury should be given a short neutral statement that the matter(s) are no longer before them and that they should not speculate as to why a count or defendant is no longer in the case.

Double jeopardy does not attach if the court grants a defendant's motion for severance during trial. Jeffers v. United States, 432 U.S. 137 (1977); People v. Gill, 59 F.3d 1010, 1012-14 (9th Cir. 1995).

See also § 3.15.