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 VOLUME 3 - CHAPTER 19
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19.4 Disposition Of Charges As To Codefendant

    19.4.1 Cautionary Instructions Regarding Disposition Of Charges Against Codefendant
    19.4.2 Jury Not To Consider The Guilty Plea Of An Accomplice Or Codefendant
    19.4.3 No Consideration Of Evidence As To Dismissed Codefendant
    19.4.4 Witness Who Has Pled Guilty: Limited Purpose Instruction

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 VOLUME 3 - CHAPTER 19

    19.4.1    Cautionary Instructions Regarding Disposition Of Charges Against Codefendant

RATIONALE: When a codefendant has been dismissed from the case the jury may assume that the codefendant pled guilty. This, in turn, may prompt the jury to draw an adverse inference against the defendant. Therefore, a cautionary/limiting instruction may be appropriate.

POINTS AND AUTHORITIES: "[A] defendant has ‘a right to have his guilt or innocence determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else.’ [citation.]" (U.S. v. Thomas (3rd Cir. 1993) 998 F2d 1202, 1206.) Accordingly, the admission of a codefendant's guilty plea is reversible error. (Ibid.)

    When the case has been dismissed against one of the defendants during trial, there is a danger that the jury will speculate as to why this action has been taken. (See e.g., People v. Young (CA 1978) 85 CA3d 594, 602 [149 CR 524].) Specifically, the jury might speculate that the codefendant has pled guilty. If so, the potential for prejudice is overwhelming. (See e.g., U.S. v. Dworken (1st Cir. 1988) 855 F2d 12, 30-31; see also U.S. v. King (5th Cir. 1974) 505 F2d 602, 607; U.S. v. Hutchings (8th Cir.1984) 751 F2d 230, 237; Baker v. U.S. (9th Cir. 1968) 393 F2d 604, 614; U.S. v. De La Vega (11th Cir. 1990) 913 F2d 861, 866; Leavell v. State (IN 1983) 455 NE2d 1110, 1113; Jefferson v. State (IN 1980) 399 NE2d 816, 825; State v. Marcano (NH 1994) 645 A2d 661, 663; State v. Parente (RI 1983) 460 A2d 430, 434-35.)

    Accordingly, a cautionary instruction may be appropriate. (See e.g., U.S. v. Gibbons (2nd Cir. 1979) 602 F2d 1044, 1048; Young, 85 CA3d at 602; see also O’Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTION 11.14 [Dismissal Of Some Defendants] (West, 5th ed. 2000); see also Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Instruction 17 [Disposition Of Charges Against Codefendant: Jury Not To Consider Certain Evidence] p. 24 (1988).)

    See also FORECITE National™ 26.2.3 [Witness Who Has Pled Guilty: Limited Purpose Instruction].

    See also FORECITE National™ 19.4.2 [Jury Not To Consider The Guilty Plea Of An Accomplice Or Codefendant].

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

USE NOTE: Disposition Of Charges: Distinction As To Whether The Plea Of The Codefendant Was Made Before Or During Trial. See FORECITE National™ 16.18.2 [Disposition Of Charges: Distinction As To Whether The Plea Of The Codefendant Was Made Before Or During Trial].

PRACTICE NOTE: When the charges against a codefendant are dismissed, the remaining defendant should first move for a mistrial on the ground that no curative instructions can correct the prejudice. Any curative instruction is for a situation where the mistrial motion is denied. 

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  FORECITE National™ 17.2.2.1 [Instruction That Shackling Is Routine Practice Not Related To Defendant]; see also CAVEAT to FORECITE National™ 297.3.2 [Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter].)

CAVEAT: Where the accomplice testified against the defendant in exchange for a favorable plea agreement, it will be necessary to assure that the jury considers the beneficial plea agreement in evaluating the credibility of the accomplice's testimony. (See FORECITE National™ 25.7.1 [Witness Receiving Personal Inducements From Prosecution: Cautionary Instruction] and FORECITE National™ 279.4 [Jury Not To Consider Penalty: Modification When Witness Testifies Pursuant To Bargain With Prosecution].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.12 [Multiple Defendants].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 8th Circuit Model Jury Instructions - Criminal 2.12.

See also 9th Circuit Model Jury Instructions - Criminal 2.12.

See also 9th Circuit Model Jury Instructions - Criminal 2.13.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 16.

SAMPLE INSTRUCTION # 1:

    The case against the defendant _______ has been disposed of and is no longer before you. Do not guess or speculate as to the reason for the disposition. The disposition should not influence your verdict with reference to the remaining defendant[s], and you must base your verdict solely on the evidence against the remaining defendant[s].

[9th CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.13 [Disposition Of Charge Against Codefendant] (2000).]

SAMPLE INSTRUCTION # 2:

    At the beginning of the trial I told you that (insert name[s]) [was] [were] [a] defendant[s] in this case. The charge[s] against defendant[s] (insert name[s]) [has] [have] been disposed of, and [he] [she] [they] [is] [are] no longer [a] [defendant[s] in this case. You should not guess about or concern yourselves with the reason for this disposition. You are not to consider this fact when deciding if the Government has proved, beyond a reasonable doubt, its case against defendant[s] (name remaining defendant[s]).

    [The following evidence is now stricken by me, and is thus no longer before you and may not be considered by you (describe stricken evidence).]

[8th CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.12 [Disposition During Trial, Of All Charges Against One Or More Codefendant(s)] (2000).]

SAMPLE INSTRUCTION # 3:

    The case has been disposed of as to the defendant[s] __________ [name defendants dismissed]. [He] [She] [They] [are] [is] no longer of concern to you, and you should not speculate as to the reason for this disposition. This disposition should not control or influence your verdict with reference to the remaining defendant[s] and you must base your verdict as to [him] [her] [them] solely on the evidence against [him] [her] [them].

SAMPLE INSTRUCTION # 4:

    I'm going to read to you an intermediate instruction. Ladies and gentlemen of the jury, as I instructed you at the onset of this trial and will again at the conclusion, you should give separate consideration to each defendant. Each is entitled to have his case decided upon the evidence and the law applicable to him. Any evidence which is limited to one or some of the defendants, should not be considered by you as to any other defendant. You will notice that two of the defendants, _______________ [Insert name] and _____________ [Insert name] are no longer present at the trial. You must not concern yourselves with the reasons why they are no longer here and you must continue to hear the evidence and decide each of the remaining defendants' cases on the evidence, without regard to the two defendants who are no longer participating.

[Given in Leavell v. State (IN 1983) 455 NE2d 1110, 1113.]

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    19.4.2    Jury Not To Consider The Guilty Plea Of An Accomplice Or Codefendant

RATIONALE: Jurors should not be allowed to infer that because a codefendant plead guilty the defendant is guilty as well.

POINTS AND AUTHORITIES: The guilty plea by one defendant is not evidence of guilt or criminality of the remaining defendant or defendants. (See e.g., Hines v. U.S. (10th Cir. 1942) 131 F2d 971, 974; Zarnick v. State (IN 1977) 361 NE2d 202, 206.) Therefore "[i]f the jury should become aware that a codefendant has pleaded guilty, it should be clearly instructed that it is not to consider or discuss the plea in deciding the case of the remaining defendant or defendants." (8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.12 [Disposition During Trial, Of All Charges Against One Or More Codefendant(s)] comment (2000); see also U.S. v. Phillips (7th Cir. 1981) 640 F2d 87, 91 fn 7; Wood v. U.S. (8th Cir. 1960) 279 F2d 359, 362-63.)

    See also FORECITE National™ 19.4.1 [Cautionary Instructions Regarding Disposition Of Charges Against Codefendant].

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

USE NOTE: Any evidence that was admitted only as to the dismissed codefendant should be stricken. (See United States v. Schmaltz (8th Cir. 1977) 562 F2d 558; see also O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 12.16 [Do Not Consider Dismissed Defendants] (West, 5th ed. 2000); see also FORECITE National™ 19.4.3 [No Consideration Of Evidence As To Dismissed Codefendant].)

USE NOTE: If the jury does not know why the codefendant was dismissed no reference should be made to the guilty plea. (See  FORECITE National™ 19.4.1 [Cautionary Instructions Regarding Disposition Of Charges Against Codefendant].)

CAVEAT: Where the accomplice testified against the defendant in exchange for a favorable plea agreement, it will be necessary to assure that the jury considers the beneficial plea agreement in evaluating the credibility of the accomplice's testimony.

RESEARCH NOTES:

See generally, FORECITE National™  305.13.12 [Multiple Defendants].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 5th Circuit Pattern Jury Instructions - Criminal 1.15.

See also 6th Circuit Pattern Jury Instructions - Criminal 7.08, Paragraph 3.

See also 8th Circuit Model Jury Instructions - Criminal 2.12.

See also 9th Circuit Model Jury Instructions - Criminal 4.12.

See also 11th Circuit Pattern Jury Instructions - Criminal 1.2.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 24. 

SAMPLE INSTRUCTION # 1:

    The fact that an accomplice has entered a plea of guilty cannot be considered by you as evidence of the guilt of any other person.

[Given in People v. White, No. 117535, San Francisco Superior Court.]

SAMPLE INSTRUCTION # 2:

    You may consider the accomplice's guilty plea only to assess [his] [her] credibility as a witness and not to create an inference of guilt against the accused.

[U.S. v. Magee (5th Cir. 1987) 821 F2d 234, 241.]

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    19.4.3    No Consideration Of Evidence As To Dismissed Codefendant

RATIONALE: Jurors may not understand that they are not to consider evidence that was admitted against a codefendant who has been dismissed.

POINTS AND AUTHORITIES: In cases where a codefendant has been removed from the case and evidence was admitted as to that codefendant only, it may be appropriate to instruct the jury that such evidence is no longer to be considered in the case. (See 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL (2000) 2.12 [Disposition, During Trial, of All Charges Against One or More Codefendant[s]] and 2.13 [Disposition, During Trial, of One or More but less than All Charges Against Codefendant[s]]; 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL (2000) 2.13 [Disposition of Charge Against Codefendant]; Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS (1988) Inst. No 17 [Disposition of Charges Against Codefendant: Jury Not to Consider Certain Evidence].)

    See also  FORECITE National™ 16.17 [Partial Dismissal Of Charges During Trial].

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

PRACTICE NOTE: It may be appropriate to advise the jury, to the extent practicable, specifically which evidence it should not consider. (Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 17 [Disposition Of Charges Against Codefendant: Jury Not To Consider Certain Evidence] (1988), and commentary; see also FORECITE National™ 16.17.2 [Limiting Instruction As To Evidence Admitted Only As To Dismissed Charge Or Count] and  FORECITE National™ 16.18.4 [No Consideration Of Evidence As To Dismissed Codefendant].)

CAVEAT: No reference should be made in this situation to a plea of guilty by the codefendant (if that is the basis for disposition of the charge, as opposed to a dismissal for lack of evidence). If the jury should become aware of the plea it may be appropriate to "strongly instruct" that it is not to consider or discuss the plea in deciding the case of the remaining defendant or defendants. (See Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 17 [Disposition Of Charges Against Codefendant: Jury Not To Consider Certain Evidence] (1988), and commentary; see also  FORECITE National™ 16.18.2 [Disposition Of Charges: Distinction As To Whether The Plea Of The Codefendant Was Made Before Or During Trial].)

RESEARCH NOTES:

See generally, FORECITE National™  305.13.12 [Multiple Defendants].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 5th Circuit Pattern Jury Instructions - Criminal 1.15.

See also 6th Circuit Pattern Jury Instructions - Criminal 7.08, Paragraph 3.

See also 8th Circuit Model Jury Instructions - Criminal 2.12.

See also 9th Circuit Model Jury Instructions - Criminal 4.12.

See also 11th Circuit Pattern Jury Instructions - Criminal 1.2.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 17.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 24.

SAMPLE INSTRUCTION # 1:

    At the beginning of the trial you were told that both defendants, _____ and _____ were accused of committing the crime of _______ . The charge against one of the defendants, ______, has been disposed of, and he will no longer be part of this trial. The fact that he is no longer part of the trial should not enter your thinking when you are called upon to decide whether the government has proved, beyond a reasonable doubt, that the defendant, ______ committed the crime.

    The following evidence is no longer in this case: _________________ [Describe evidence]. You should not consider any of this evidence when you decide whether the government has proved, beyond a reasonable doubt, that the defendant, ______, has committed the crime of _______ .

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. 17 [Disposition of Charges Against Codefendant: Jury Not to Consider Certain Evidence ] (1988).]

SAMPLE INSTRUCTION # 2:

    At the beginning of the trial I told you that (insert name[s]) [was] [were] [a] defendant[s] in this case. The charge[s] against defendant[s] (insert name[s]) [has] [have] been disposed of, and [he] [she] [they] [is] [are] no longer [a] [defendant[s] in this case. You should not guess about or concern yourselves with the reason for this disposition. You are not to consider this fact when deciding if the Government has proved, beyond a reasonable doubt, its case against defendant[s] (name remaining defendant[s]).

    [The following evidence is now stricken by me, and is thus no longer before you and may not be considered by you __________________ (describe stricken evidence).]

[8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.12 [Disposition, During Trial, Of All Charges Against One Or More Codefendant(s)] (2000).]

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VOLUME 3 - CHAPTER 19

    19.4.4    Witness Who Has Pled Guilty: Limited Purpose Instruction

    See  FORECITE National™ 26.2.3 [Witness Who Has Pled Guilty: Limited Purpose Instruction].