THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 16 - CHAPTER 300
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    300.20 Misconduct Of Cocounsel

    300.20.1 Misconduct Of Cocounsel As An Abridgement Of Defendant's Constitutional Rights

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 16 - CHAPTER 300

PRACTICE NOTE: While there may be a tendency in some situations to view cocounsel as an ally, cocounsel may intentionally or unintentionally impact the rights of the other defendant(s). The law is clear that the conduct of counsel for a codefendant can violate a defendant's constitutional rights. (People v. Estrada (CA 1998) 63 CA4th 1090, 1096 [75 CR2d 17]; see also People v. Hardy (CA 1992) 2 C4th 86, 157 [5 CR2d 796].) For example, "...counsel for a codefendant may not comment on the defendant’s failure to testify." [Footnote omitted.] (Wharton’s Criminal Procedure (West, 13th ed. 1989) § 353 p. 128; U.S. v. Alpern (7th Cir. 1977) 564 F2d 755, 761 [improper argument by codefendant’s counsel cured by cautionary instruction].)

    In sum, "the direction of a blow is less important than the wound inflicted" and, therefore, the analysis applicable to prosecutorial misconduct is at least a useful guideline for the review of misconduct committed by counsel for a codefendant. (Estrada, 63 CA4th at 1096.)

Annotation, Comment On Accused’s Failure To Testify, By Counsel For Defendant, 1 ALR3rd 989.