See 5th Circuit Pattern Jury Instructions - Criminal 1.22.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.23.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.27.

See also 6th Circuit Pattern Jury Instructions - Criminal 2.01B.

See also 6th Circuit Pattern Jury Instructions - Criminal 2.01C.

See also 6th Circuit Pattern Jury Instructions - Criminal 2.01D.

See also 7th Circuit Pattern Jury Instructions - Criminal 7.04.

See also 8th Circuit Pattern Jury Instructions - Criminal 3.07.

See also 8th Circuit Pattern Jury Instructions - Criminal 3.08.

See also 9th Circuit Pattern Jury Instructions - Criminal 3.12.

See also 9th Circuit Pattern Jury Instructions - Criminal 3.14.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 10.3.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 10.4.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 2.2.

See also Federal Judicial Center Pattern Jury INSTRUCTION 46.

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    276.7.2    Multiple Defendants: Separate Consideration Of Multiple Defendants

RATIONALE: Without a limiting instruction the jury may allow its verdict as to one codefendant to affect its verdict as to the other.

POINTS AND AUTHORITIES: When multiple defendants are tried in a single trial, each charge and each defendant must be considered separately. Whether one defendant is guilty or not guilty is not dependent upon whether another defendant is guilty or not guilty. (See Bucklin v. U.S. (1895) 159 US 682, 686; U.S. v. Parker (9th Cir. 1970) 432 F2d 1251, 1255.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 7.4].

CAVEAT: An instruction on separate consideration should make it clear that the verdict as to one codefendant should, in no way, affect the other. For example, the 7th Circuit instruction provides: "Your verdict of guilty or not guilty of an offense charged in one count should not control your decision as to any other count." (7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 7.03 [Separate Consideration Of Charges Single Defendant Multiple Counts]; see also 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS- CRIMINAL 7.04 [Separate Consideration Of Charges Multiple Defendants Multiple Counts] (1999).) This instruction is inadequate because it may still permit one count to influence another even though it may not control the other count.  Compare 6TH CIRCUIT PATTERN INSTRUCTIONS (1991) 2.01B ["...decision on one defendant ... should not influence your decision on any of the other defendants]; PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT (2003) BI 10.4 ["...not affect your verdict..."].)

    See NCJIC 19.4.3 [Cautionary Instruction: Dismissed Codefendant].

    See NCJIC 26.10.1 [Jury Must Not Consider Evidence Admitted Solely Against Some Defendants And Not Others].

    See NCJIC 276.7.3 [Separate Consideration For Each Defendant: Applicability To All Decisions And Findings].

    See NCJIC 276.7.4 [Separate Consideration For Each Defendant: Circumstances Where Instruction May Not Be Fully Applicable].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, NCJIC 276.7.1 [Multiple Defendants: Federal Circuit Model Instructions And Notes].

    The defendants are being tried together because the government has charged that they worked together to commit the crime of __________. But you will have to give separate consideration to the case against each defendant. Each is entitled to your separate consideration. Do not think of them as a group.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS 1 [Standard Preliminary Instruction Before Trial] ¶ 3 (1988).]

    You will recall that I explained to you earlier that the defendant _____, has been charged with _______ different crimes: [List them]. Each of these is a separate crime, and you should consider each one separately and return a separate verdict for each.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS 46 [Separate Consideration Of Multiple Counts And/Or Multiple Defendants] Alternative A (1988).]

    As you know, _______ defendants are on trial here: [Name them]. All [number] have been accused of committing the crime of _______. You must give separate consideration to the evidence about each defendant. Each is entitled to your separate consideration. Do not think of them as a group. You must return a separate verdict for each defendant.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS 46 [Separate Consideration Of Multiple Counts And/Or Multiple Defendants] Alternative B (1988).]

    As you know, _____ defendants are on trial here: [Name them]. Because some of the charges in this case have been made against some of the defendants and not against others, I want to tell you once again which individuals were charged with which crimes: [E.g.: Ralph Rich has been charged with conspiracy and possession, Patty Poor has been charged with conspiracy and distribution.] It is important that you give separate consideration to the evidence against and in behalf of each individual defendant. I also remind you that you must consider separately each crime charged against each individual defendant.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS 46 [Separate Consideration Of Multiple Counts And/Or Multiple Defendants] Alternative C (1988).]

    It is your duty to give separate, personal consideration to the case of each individual defendant. When you do so, you must analyze what the evidence in the case shows with respect to that individual without any consideration whatsoever of any evidence admitted solely against another defendant or defendants. Each defendant is entitled to have [his] [her] case determined from evidence as to [his] [her] own acts and statements and conduct, and any other evidence in the case which may be applicable to [him] [her], just as if [he] [she] were being tried alone.

[Source: Adapted from Deering's California Evidence Code § 355, "Suggested Forms".]

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RATIONALE: Without explicit instruction the jury could interpret the standard pattern instructions to permit certain decisions as to one defendant to influence the other defendant's case.

POINTS AND AUTHORITIES: It is of course well settled that in multiple defendant cases, the jury should be instructed to consider the case against each codefendant separately. Accordingly, many standard instructions include language to the effect that, "The fact that you may find one of the defendants guilty or not guilty should not control your verdict as to any other defendant[s]." (See 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 7.03 [Separate Consideration Of Charges Single Defendant Multiple Counts]; see also 7TH CICUIT FEDERAL JURY INSTRUCTIONS- CRIMINAL 7.04 [Separate Consideration Of Charges Multiple Defendants Multiple Counts] (1999); O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 20.03 [Verdict - Multiple Defendants - Single Or Multiple Counts] pp. 926-930 (West, 5th ed. 2000).)

    However, such language is insufficient because any finding or determination as to one codefendant -- not just the final determination as to guilt -- should not influence the findings and determinations as to any other codefendant. For example, in a first degree murder prosecution the jury could interpret such an instruction to require separate consideration of the question of whether the defendant is guilty or not guilty (i.e., guilty or not guilty of murder) but at the same time not require separate determination on the question of premeditation and degree of guilt.

    Similarly, if a charge involves a sentencing enhancement or other special finding, the jury could interpret the instruction to require separate consideration of the guilt determination and not the special finding. For example, the jury could improperly impose a firearm use allegation by vicariously applying the use from one defendant to another under the literal language of such an instruction.

    Additionally, there may be crucial subordinate findings -- short of the actual finding of guilty or not guilty -- which the jury could apply from one codefendant to another under an instruction which is limited to the verdict of guilty or not guilty.

    Accordingly, the multiple defendant instruction should admonish the jury that any decision or finding as to one defendant should not, in any way, influence any finding or decision as to a codefendant.

    Moreover, the use of the word "control" is questionable because it may still allow the verdict to be influenced even though not controlled. (See NCJIC 276.7.2 [Multiple Defendants: Separate Consideration Of Multiple Defendants].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 7.4].

See generally, NCJIC 276.7.1 [Multiple Defendants: Federal Circuit Model Instructions And Notes].

    You must treat each defendant's case as an entirely separate and independent matter. Any conclusions you reach as to one defendant must not in any way affect or influence your consideration of the other defendant's case.

[Source: NCJIC.]

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PRACTICE NOTE: An instruction that each defendant, in a multi-defendant case, must be considered separately and that the findings and determinations as to one codefendant cannot be considered as to the other codefendants (see NCJIC 276.7.2 [Multiple Defendants: Separate Consideration]), may be misleading where the case involves a theory such as accomplice liability or conspiracy: "Modification of this paragraph [jury not to consider possible guilt of others not charged] may be necessary in conspiracy, aiding and abetting, alibi or mistaken identification cases, where the possible guilt of others may be a legitimate issue." (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 8.08 [Verdict Limited To Charges Against The Defendant], use note (1991).)

    See also NCJIC 51.1.6 [Accomplice Liability: Guilt Of Perpetrator As Required Element].

See generally, NCJIC 276.7.1 [Multiple Defendants: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Even if the charges as to each defendant involve the same element and, even if the jury is told to separately consider the case as to each defendant, it is still necessary to separately specify the elements necessary for proof of conviction as to each defendant. (See U.S. v. Tagalicud (9th Cir. 1996) 84 F3d 1180, 1183 [conviction against four defendants reversed when elements of the charge were specified only as to one of the defendants].)

    See also NCJIC 276.7.2 [Multiple Defendants: Separate Consideration Of Multiple Defendants].

See generally, NCJIC 276.7.1 [Multiple Defendants: Federal Circuit Model Instructions And Notes].

RATIONALE: Informing the jury that their verdict as to one defendant should not "control" their verdict as to the other defendant does not foreclose the use of one verdict to influence the other even though it did not "control" it.

POINTS AND AUTHORITIES: It is not uncommon for standard jury instructions to inform the jury that the verdict as to one defendant should not "control" the verdict as to the other defendant. (See O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 20.03 [Verdict - Multiple Defendants - Single Or Multiple Counts] pp. 926-930 (West, 5th ed. 2000); see also 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.23 [Multiple Defendants- Multiple Court] p. 34 (1997); see also 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 7.04 [Separate Consideration Of Charges Multiple Defendants Multiple Counts] p. 113 (1999); see also 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.14 [Separate Consideration For Each Defendant] p. 35 (2000).)

See generally, NCJIC 276.7.1 [Multiple Defendants: Federal Circuit Model Instructions And Notes].

    A separate crime or offense is charged in each count of the indictment. Each charge and the evidence pertaining to it should be considered separately. The fact that you may find the Defendant guilty or not guilty as to one of the offenses charged should not affect your verdict as to any other offense charged.

    I caution you, members of the Jury, that you are here to determine from the evidence in this case whether the Defendant is guilty or not guilty. The Defendant is on trial only for those specific offenses alleged in the indictment.

    Also, the question of punishment should never be considered by the jury in any way in deciding the case. If the Defendant is convicted the matter of punishment is for the Judge alone to determine later.

[11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL BI 10.2 [Caution - - Punishment (Single Defendant -- Multiple Counts)] (1997).]