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VOLUME 3 - CHAPTER 16
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16.19 Unjoined Perpetrators/Unjoined Accomplices

    16.19.1 Severance Of Parties: Cautionary Instruction
    16.19.2 Unjoined Perpetrators: Consideration Of Third Party Guilt
    16.19.3 Unjoined Perpetrators: Instruction Improper When An Unjoined Perpetrator Testifies
    16.19.4 Unjoined Perpetrator: Accomplice Distinguished
    16.19.5 Modification Where Case Involves Both Joined And Unjoined Perpetrators

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RATIONALE: Without a cautionary instruction the jury may speculate about the failure to include a named codefendant in the defendant’s trial.

POINTS AND AUTHORITIES: When a codefendant’s trial has been severed, or when the codefendant has not been tried, the jury may speculate as to why this has occurred. Accordingly, it may be appropriate to specifically instruct the jury not to speculate as to the reasons for this. (See Caplow & Griffin, Multidefendant Criminal Cases: Federal Law and Procedure § 15:2, p. 272 (West 1998); People v. Farmer (CA 1989) 47 C3d 888, 918-19 [254 CR 508].)

CAVEAT: Such an instruction is not proper in a situation where the codefendant has received a bargain or special treatment from the prosecution in exchange for testimony or other assistance in the trial against the defendant. In such a case, the jury must be required to consider the impact of this special treatment on the credibility of the codefendant’s testimony. (See NCJIC 16.19.3 [Unjoined Perpetrators: Instruction Improper When An Unjoined Perpetrator Testifies]; see also NCJIC 25.7 [Witness Or Informant Receiving Benefit From Prosecution].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 7.3; 7.5].

See A Manual On Jury Trial Procedures [3.15 B. Cautionary And Curative Instructions: Severance During Trial And Need For Cautionary Instructions (Criminal)].

    The charging document I originally read to your accused ______________ (name of severed defendant) as well as _________________ (name of non-severed defendant) with committing the alleged crime[s].  Due to legal proceedings, which need not concern your, the case against _______________ was severed from the case against ______________. Do not consider or speculate about this severance.

    You are here to decide whether the guilt of the accused has been proven beyond a reasonable doubt. You are not being asked to decide if the guilt of any other person or persons has been proven.  If you find that every element of the charge has been proved beyond a reasonable doubt you should vote for guilt, even though you may believe one or more other persons also are guilty. But if a reasonable doubt remains in your mind after consideration of all the evidence, including any evidence of the guilt of any other person or persons, it is your duty to vote to acquit the defendant.

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RATIONALE: A general instruction which informs the jury not to consider "whether the guilt of any other person or persons has been proven" may be misleading in a case where the defense theory is that the unjoined accomplice is the guilty party.

POINTS AND AUTHORITIES: When the defense theory is predicated on third party culpability, the standard unjoined perpetrator instruction may improperly suggest that the jury need not consider the guilt of the unjoined perpetrator. In such a case, the unjoined perpetrator instruction should be modified to assure that the jury considers the uncharged perpetrator’s guilt in determining whether or not the defendant is guilty. (See generally People v. Edelbacher (CA 1989) 47 C3d 983, 1017 [254 CR 586].)

    See also NCJIC 251.9 [Third Party Guilt].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 7.1].

    You are not precluded from considering any evidence that the uncharged person[s], rather than the defendant, committed the charged crime. If, in light of such evidence, as well as the other evidence presented, you have a reasonable doubt whether the defendant committed the crime, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.

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PRACTICE NOTE: An instruction not to consider why an unjoined perpetrator was not prosecuted should not be given when the unjoined perpetrator testifies because the jury is entitled to consider the lack of prosecution in evaluating the credibility of the witness. (People v. Williams (CA 1997) 16 C4th 153, 226-27 [66 CR2d 123]; see also People v. Price (CA 1991) 1 C4th 324, 446 [3 CR2d 106]; People v. Sully (CA 1991) 53 C3d 1195, 1218 [283 CR 144]; People v. Carrera (CA 1989) 49 C3d 291, 312, fn 10 [261 CR 348].)

BRIEFING AVAILABLE: Click here. [Brief Bank # B-738].

CAVEAT: As with most cautionary or limiting instructions, counsel will have to determine whether the benefits of the instruction outweigh the danger that it might unduly emphasize the prejudicial matter. (See NCJIC 297.3.1 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice]; see also NCJIC 297.3.2 [Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter].)

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    16.19.4    Unjoined Perpetrator: Accomplice Distinguished

PRACTICE NOTE: The question of whether a witness "was or may be involved in the crime," for the purposes of the unjoined perpetrator instruction, is a separate issue from the question of whether the witness was an accomplice. The purpose of an unjoined perpetrator instruction is "to focus the jury's attention on an individualized evaluation of the evidence against the person on trial without extraneous concern for the fate of other participants irrespective of their culpability." (People v. Williams (CA 1997) 16 C4th 153, 226 [66 CR2d 123].) "Only when a witness has been granted immunity from prosecution or otherwise received favorable treatment in return for testifying should the jury consider any incentive in assessing his or her credibility." (People v. Cox (CA 1991) 53 C3d 618, 667-68 [280 CR 692].)

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PRACTICE NOTE: If the case involves both prosecuted and non-prosecuted participants the unjoined perpetrator instruction should be modified to be applicable only to those witnesses who were not fully prosecuted. It has been held that failure to modify the instruction to apply only to non-prosecuted participants is error. (People v. Williams (CA 1997) 16 C4th 153, 226-27 [66 CR2d 133].)