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276.8 Multiple Counts

    276.8.2 Multiple Counts: Special Instructions

    276.8.2.1 Separate Verdict On Each Count Required: Modification When One Count Is Relevant To Another
    276.8.2.2 Multiple Counts: Inconsistent Verdicts
    276.8.2.3 Alternate Counts: Partial Verdict
    276.8.2.4 Multiple Counts: Evidence And Offenses Must Be Considered Separately
    276.8.2.5 Conspiracy And Substantive Offense Should Be Considered Separately

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PRACTICE NOTE: Typically the jury is instructed that a verdict for the crime charged in one count must not affect their verdict on any other count. (See e.g., WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 484 [Verdicts Submitted For One Defendant: Two Counts: Separate Verdict On Each Count Required] (University of Wisconsin Law School, 1999).) However, such an instruction should be modified when one count may be relevant to another. For example, there may be a claim by the defendant that based on the modus operandi the same person committed all of the charged counts. In such a case, the defense theory may be that the defendant’s alibi as to one count should also be considered as to the other counts as well. In such a situation, it would undermine this defense theory to tell the jury that one verdict may not affect the other. Other situations might occur when one verdict is a predicate offense for another. For example, a verdict of not guilty as to the underlying felony should preclude conviction of felony murder based on that felony. Accordingly, the not guilty verdict as to the underlying felony should be considered in the context of reaching the verdict as to the felony murder charge.

    See also FORECITE National™ 26.5.1.3 [Using Uncharged Acts In Support Of Third Party Defense Theory].

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    See FORECITE National™ 297.6 [Inconsistent Verdicts].

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    See FORECITE National™ 287.4 [Partial Verdict].

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RATIONALE: Without a limiting instruction the jury may improperly amalgamate the evidence as to multiple counts or rely on the conviction in one count to convict on the other.

POINTS AND AUTHORITIES: It is fundamental that each offense, and the evidence pertaining to it, be considered separately. (See U.S. v. Nabors (8th Cir. 1985) 762 F2d 642, 652.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 7.3].

    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, Alternative A [Separate Consideration of Multiple Counts and/or Multiple Defendants Elements of the Offense Other Comments of the Required Proof Alternative A: Multiple Counts, One Defendant] (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, Alternative C [Separate Consideration of Multiple Counts and/or Multiple Defendants Elements of the Offense Other Comments of the Required Proof Alternative C: Multiple Defendants, Multiple Counts] (1988).]

    A separate crime is charged in each count of the indictment. Each count 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 crimes charged should not control your verdict as to any other.

[5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.21 [Single Defendant–Multiple Counts] (2001).]

    A separate crime is charged against one or more of the defendants in each count of the indictment. Each count, and the evidence pertaining to it, should be considered separately. The case of each defendant should be considered separately and individually. The fact that you may find one or more of the accused guilty or not guilty of any of the crimes charged should not control your verdict as to any other crime or any other defendant. You must give separate consideration to the evidence as to each defendant.

[5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.23 [Multiple Defendants–Multiple Counts] (2001).]

    Each count of the indictment charges the defendant with having committed a separate offense.

    Each count and the evidence relating to it should be considered separately, and a separate verdict should be returned as to each count. 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] (1999).]

    Each count of the indictment charges each defendant named in that count with having committed a separate offense.

    You must give separate consideration both to each count and to each defendant. You must consider each count and the evidence relating to it separate and apart from every other count.

    You should return a separate verdict as to each defendant and as to each count. Your verdict of guilty or not guilty of an offense charged in one count should not control your decision as to that defendant under any other count.

[7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 7.04 [Separate Consideration of Charges Multiple Defendants Multiple Counts] (1999).]

    A separate crime is charged against the defendant in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count.

[9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 3.12 [Separate Consideration of Multiple Counts--Single Defendant] (2000).]

    A separate crime is charged against the defendant in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count.

[9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 3.13 [Separate Consideration of Multiple Counts--Single Defendant] (2000).]

    A separate crime is charged in each count. You must consider each count separately. Your verdict, if any, on one count should not influence in any way your consideration of any other count.

[See WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 3.01 [MULTIPLE COUNTS—SINGLE DEFENDANT] (West, 2nd ed. 1994).]

    You must separately consider the case as to each defendant and each crime charged against that defendant. Your verdict, if any, on any count as to any defendant must not influence in any way your consideration of any other count or as to any other defendant.

[See WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 3.03 [MULTIPLE DEFENDANTS—MULTIPLE COUNTS] (West, 2nd ed. 1994).]

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    See FORECITE National™ 83.2.5 [Conspiracy And Substantive Offense Should Be Considered Separately].