NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions

VOLUME 3: TRIAL PROCEDURE--ISSUES AND INSTRUCTIONS (Chapters 16-23)

TABLE OF CONTENTS

Chapter 16: Trial Procedure

16.1 Opening Statements
    16.1.1 Importance Of Opening Statements
    16.1.2 Opening Statements: Strategic Considerations
    16.1.3 Supplementary "Opening" Statements
    16.1.4 Failure Of Prosecutor To Support A Claim Made In The Opening Statement: Cautionary/Limiting Instruction
    16.1.5 Reference To Inadmissible Evidence In Opening Statement As Prosecutorial Misconduct
    16.1.6 Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice
    16.1.7 Failure Of Defense Counsel To Present Evidence Promised In Opening Statement
    16.1.8 Admission Of Client’s Guilt In Opening Statement As Ineffective Assistance Of Counsel
    16.1.9 Opening Statement: Improper For Prosecution To Comment On Anticipated Defense Evidence

16.2 Conduct And Duty Of The Jury During Trial
        16.2.1 No Premature Formation Of Opinion
            16.2.1.1 Duty To Keep An Open Mind And Not Form Premature Opinions
            16.2.1.2 Explanation To Jury Of Why Forming An Opinion May Be Prejudicial
            16.2.1.3 Admonition Not To Form Opinions About The Case Prior To Deliberations
            16.2.1.4 Jurors Must Not Form Opinions Prior To Deliberations, Even In Juror's Own Mind
            16.2.1.5 Duty Not To Form Premature Opinion Applies To Subsidiary Or Predicate Facts As Well As To Ultimate Verdict

        16.2.2 Duty Of Jurors To Be Unbiased
            16.2.2.1 Duty Of Jurors To Be Unbiased: Sympathy Or Antipathy Toward Witness, Party or Counsel
            16.2.2.2 Duty Of Jurors To Be Unbiased: Gender Bias
            16.2.2.3 Duty Of Jurors To Be Unbiased: Racial Bias
            16.2.2.4 Duty Of Jurors To Be Unbiased: Bias Based On Physical Or Mental Disability

        16.2.3 Duty Not To Converse With Other Persons
            16.2.3.1 Duty Not To Discuss Case With Other Jurors Prior To Deliberation
            16.2.3.2 Admonition Against Discussing The Case: Having Jurors Swear To Abide By The Admonition
            16.2.3.3 Duty Not To Converse With Nonjurors
            16.2.3.4 Duty Not To Converse With Attorneys, Parties Or Witnesses
            16.2.3.5 Duty Not To Discuss Emotional Outbursts By Witness Or Spectator

        16.2.4 Conduct Of Jury: Miscellaneous Instructions
            16.2.4.1 Consumption of Alcohol or Drugs by Jurors: Admonition Not To Use Intoxicants
            16.2.4.2 Jury Not To Consider Nature Of Charges
            16.2.4.3 Any Juror May Communicate With The Court At Any Time
            16.2.4.4 Repetition Of Adjournment/Separation Admonition
            16.2.4.5 Jury Must Not Consider Penalty During Guilt Phase Of Death Penalty Trial

16.3 Duty Of Jury As To The Evidence
    16.3.1 Jury Must Consider All Of The Evidence
    16.3.2 Jury Must Consider Evidence But Need Not Believe It
    16.3.3 Jury Not To Be Influenced By The Relative Number Of Witnesses: Cautionary Instruction
    16.3.4 "Number-Of-Witnesses" Instruction Should Not Be Given When Defendant Calls No Witnesses
    16.3.5 Whether Jury Should Be Instructed That It Must Attempt To Resolve Conflicts In The Evidence
    16.3.6 Jury Consideration Of The Evidence: Federal Circuit Model Instructions And Notes

16.4 Juror Exposure To And Consideration Of Extrinsic Evidence And Materials
    16.4.1 Jury Not To Read Internet, E-mail, On-line Discussion Groups Or Other Computer- Based Sources Of Media Reports About The Trial
    16.4.2 Jury Not To Consider Or Be Influenced By Public Opinion, Etc.
    16.4.3 Jurors Should Be Admonished To Refrain From Using Jury Booklets During Trial
    16.4.4 Providing Jurors With Trial Notebooks
    16.4.5 Jury Use Of Materials Not Received In Evidence But Which May Be Helpful In Managing The Evidence
    16.4.6 Materials In Juryroom: Sanitizing Juryroom And Reviewing Materials Before Sending Them To Jury
    16.4.7 Jury Consideration Of Extraneous Evidence
    16.4.8 Source And Means Of Juror Exposure To Extrinsic Evidence

16.5 Duty To Report Exposure To Or Knowledge Of Extraneous Matters
    16.5.1 Duty To Report Personal Knowledge Of Fact In Controversy
    16.5.2 Duty To Report Recognition Of Witness Or Other Party During Trial
    16.5.3 Duty To Report Exposure To Improper Information
    16.5.4 Duty To Report Juror Misconduct
    16.5.5 Juror Not To Discuss With Other Jurors Matters Reported Privately To Court
    16.5.6 Challenge To "Juror Snitch" Instruction

16.6 Jurors Not To Conduct Independent Investigation
    16.6.1 Jurors Not To Engage In Independent Investigation
    16.6.2 Improper Use Of Dictionary, Reference, Reading Or Research Materials
    16.6.3 Admonition Against Visiting Crime Scene
    16.6.4 Accessing Information In The Media
    16.6.5 Use Of Magnifying Glass During Deliberations: Limiting Instruction
    16.6.6 Jurors May Not Consult Outside Party For Expertise, Information Or Opinion
    16.6.7 Juror Claim Of Personal Expertise During Deliberations
    16.6.8 Admonition To Refrain From Conducting Experiments To Test The Evidence
    16.6.9 Jurors Accessing Information From The Internet

16.7 Court's Duty To Inquire Into Juror Misconduct
    16.7.1 Duty To Inquire: General Principles
    16.7.2 Trial Publicity: Judge Has Duty To Inquire When Media Coverage Includes Information Not Presented At Trial
    16.7.3 Duty To Inquire: Threatening Or Harassing Phone Call Received By Juror
    16.7.4 Duty To Inquire: Jury Tampering
    16.7.5 Conduct Of Judicial Inquiry

16.8 Juror Notetaking
        16.8.1 Juror Notetaking: Procedural Issues
            16.8.1.1 Juror Notetaking: Permitted In Discretion Of The Court
            16.8.1.2 Courts May Not Require Jurors To Take Notes
            16.8.1.3 Benefits Of Juror Notetaking
            16.8.1.4 Disadvantages Of Juror Notetaking
            16.8.1.5 Deciding Whether Or Not To Oppose Juror Notetaking
            16.8.1.6 Juror Notetaking: Destruction Of Notes At End Of Trial
            16.8.1.7 Juror Notetaking: Due Process Grounds For Preserving Juror Notes
            16.8.1.8 Juror Notetaking: Federal Circuit Model Instructions And Notes

        16.8.2 Instructions Regarding The Notetaking Process
            16.8.2.1 Cautionary Instruction On Juror Notetaking Required On Request
            16.8.2.2 Limited Purpose Of Juror Notetaking
            16.8.2.3 Juror Notetaking: One Juror Must Not Take Notes For Another
            16.8.2.4 Juror Notetaking Should Not Impair Jurors' Ability To Listen To And Consider All The Evidence
            16.8.2.5 Juror Notetaking: Individual Responsibility To Listen Carefully To Evidence Even If Juror Does Not Take Notes
            16.8.2.6 Juror Notetaking: Advising Jury As To Availability Of Readback Of Testimony
            16.8.2.7 Admonition To Limit Juror Notetaking To The Evidence And To Refrain From Recording Opinions About The Evidence In Notes
            16.8.2.8 Juror Notetaking Using Means Other Than Writing To Accommodate Juror Disabilities
            16.8.2.9 Juror Notetaking: Admonition To Refrain From Taking Notes Concerning The Jury Instructions
            16.8.2.10 Juror Notetaking On Counsel's Summations Or Arguments To The Jury
            16.8.2.11 Juror Notetaking: Advising Jury That Court May Refuse Readback Of Attorney Arguments To Jury
            16.8.2.12 Juror Notetaking: Notes Should Not Be Removed From Courtroom
            16.8.2.13 Repetition Of Instructions Regarding Juror Notetaking

        16.8.3 How Juror Notes Should Be Used
            16.8.3.1 Juror Note Taking: Notes Not To Take Precedence Over Recollection
            16.8.3.2 Juror Notetaking: Admonition To Have Testimony Readback To Resolve Conflicts Between Notes And Recollection
            16.8.3.3 Juror Notetaking: Notes Are Not Evidence
            16.8.3.4 Views Of Jurors Who Took Notes Should Not Be Given Greater Weight Or Consideration
            16.8.3.5 Juror Notetaking: Quality Of Notes Should Not Affect Weight Of A Juror's Opinion
            16.8.3.6 Memory Or Notes Of One Juror Not To Take Precedence Over Another
            16.8.3.7 Jurors Not To Discuss Notes Before Commencement Of Deliberations
            16.8.3.8 Jurors Should Not Give Added Weight To Evidence Simply Because Some Jurors Have Taken Notes On It
            16.8.3.9 Jurors Should Be Permitted But Not Required To Share Their Notes With The Other Jurors During Deliberations
            16.8.3.10 No Juror Notes: Availability Of Readback

        16.8.4 Composite Notetaking Instructions
            16.8.4.1 Sample Composite Instructions Regarding Juror Notetaking

16.9 Questions To Witnesses By Jurors
        16.9.1 Juror Questions To Witnesses: Procedural Issues
            16.9.1.1 Propriety Of Permitting Jurors To Submit Questions For Witnesses; Instructional Safeguards To Consider If Juror-Authored Questions Are Allowed
            16.9.1.2 Should Trial Courts Inform Jurors That They May Pose Questions For Witnesses?
            16.9.1.3 Improper For Trial Counsel To State Juror Questions
            16.9.1.4 Counsel Should Be Given An Opportunity To Object, Outside The Jury's Presence, To Questions Posed By Jurors
            16.9.1.5 Counsel Should Be Entitled To Cross-Examine Witnesses Following Juror Questions
            16.9.1.6 Questions By Jurors: Undermining Of Prosecution's Burden Of Proof
            16.9.1.7 Federal Constitutional Challenge To Submitting Juror Questions To Witness

        16.9.2 Juror Questions To Witnesses: Specific Instructions
            16.9.2.1 Jurors Should Not Submit Questions Until After Lawyers Have Completed Their Questioning Of The Witness
            16.9.2.2 Jurors Not To Draw Any Inference From Judge's Refusal To Ask Witness Juror- Authored Question
            16.9.2.3 Questions By Jurors: Safeguards And Cautionary Instruction
            16.9.2.4 Juror-Authored Questions To Witnesses Should Be Limited To Factual Clarification
            16.9.2.5 Jurors Not To Speculate About How The Witness Would Had Answered Juror- Authored Questions Not Allowed By The Court
            16.9.2.6 Jurors Should Not Give Disproportionate Weight To Answers To Their Own Questions
            16.9.2.7 Jurors Must Not Discuss, Prior To Deliberations, Questions They Submit To Witnesses
            16.9.2.8 Jurors Must Not Speculate About What The Answer To A Rejected Question May Have Been
            16.9.2.9 Jurors Should Not Address Questions To Witnesses Or Counsel Directly
            16.9.2.10 Final Instructions Should Repeat The Cautionary Instructions Regarding Juror Questions To Witnesses
            16.9.2.11 Allowing Juror Questioning Is Reversible Error Per Se 

        16.9.3 Composite Instructions On Juror Questions
            16.9.3.1 Samples Of Composite Instructions On Juror Questions

16.10 Instructions On Instructions
    16.10.1 Duty Of Jury To Consider Instructions As A Whole
    16.10.2 No Adverse Inference From Repeated Instructions
    16.10.3 Order Of Instructions Has No Importance Or Significance
    16.10.4 No Special Significance To Handwritten Portions
    16.10.5 Duty OF Jury To Follow Instructions: Federal Models Instructions

16.11 Media In The Courtroom
    16.11.1 Cameras In The Courtroom: Explaining Purpose And Function To Jury
    16.11.2 Media Coverage Of Jurors In Courtroom: Potential Prejudice

16.12 Disruptive Spectators In The Courtroom
    16.12.1 Removal Of Disruptive Spectator: Cautionary Instruction
    16.12.2 Improper To Clear Courtroom In Response To Outburst By Single Spectator
    16.12.3 Remarks Of Spectators: Cautionary Instruction

16.13 Conduct Of Attorneys
    16.13.1 Admonishment Of Attorney: No Adverse Inference Against Defendant
    16.13.2 Cautionary Instruction Regarding Duty Of Counsel To Interview Witnesses In Advance Of Trial
    16.13.3 Bench Conference: Cautionary Instructions
    16.13.4 Byplay Between Counsel: Cautionary Instruction
    16.13.5 Discussion Between Court And Counsel: Cautionary Instruction
    16.13.6 Attorney Objections Do Not Indicate A Desire To Keep Anything From The Jury
    16.13.7 Prosecution Disparagement Of Defense Attorney

16.14 Conduct Of Judge
        16.14.1 Bench Conference
            16.14.1.1 Bench Conference: Sample Instruction
            16.14.1.2 Bench Conference: No Inference As To Judge's Opinion Of The Case
            16.14.1.3 Bench Conference: Jury Misconduct To Consider Evidence Overheard During Side Bar Conference

        16.14.2 Questions Of Witness By Judge
            16.14.2.1 Questions To Witness By Judge: Cautionary Instruction
            16.14.2.2 Questions Of Witness By Judge: Right Of Defendant To Ask Additional Questions
            16.14.2.3 Judge Calling Witness: Cautionary Instruction

        16.14.3 Conduct Of Judge: Miscellaneous Issues And Instructions
            16.14.3.1 Summary Of Evidence By Judge
            16.14.3.2 Judge/Court Comments On The Evidence
            16.14.3.3 Court's Duty To Refrain From Improper Comment On The Evidence
            16.14.3.4 Jury Should Not Be Influenced By Court's Ruling Admitting Evidence
            16.14.3.5 No Inference From Rulings Of The Court: Cautionary Instruction
            16.14.3.6 Jury Not to Consider Conduct of Judge
            16.14.3.7 Jury Not To Consider Gestures By The Judge
            16.14.3.8 Judge Should Not Praise Prosecutor And/Or Prosecution Witnesses
            16.14.3.9 Judge Should Not Personally Attack Attorney
            16.14.3.10 Improper To Deny Motion For Acquittal In Presence Of The Jury
            16.14.3.11 Improper For Judge To Inform Jury That Witness May Be Prosecuted For Perjury
            16.14.3.12 Judge's Comments To Defense Witness Regarding Need To Testify Truthfully
            16.14.3.13 Naming Of Witness In Instructions As Improper Comment On The Evidence
            16.14.3.14 Improper For Judge To Interfere With Jurors’ Independent Judgment

16.15 Conduct Of Court Personnel
    16.15.1 Judge, Rather Than Clerk Or Bailiff, Should Administer The Oath To The Jury
    16.15.2 Communication Between Jury And Bailiff Or Court Clerk
    16.15.3 Jury Not To Consider Reaction To Evidence By Court Personnel
    16.15.4 Improper To Permit Court Clerk To Readback Testimony To Jury
    16.15.5 Duty To Instruct Should Not Be Delegated To Court Clerk

16.16 Interpreters
    16.16.1 Jurors To Be Guided By Official English Translation/Interpretation
    16.16.2 Use Of Interpreter By Defendant: Cautionary Instruction
    16.16.3 Defendant's Right To Interpreter: Federal Constitutional Grounds
    16.16.4 Defendant's Right to Simultaneous Translation By Interpreter
    16.16.5 Defendant Has Right To Testify Through Interpreter Without First Trying To Speak English Under Oath In Front Of The Jury
    16.16.6 Interpreter's Embellishment On Testimony Of Witness Is Improper
    16.16.7 Use of Interpreter By Witness: Testimony Must Not Be Treated Differently
    16.16.8 Bilingual Jurors: Must Only Consider Official English Translation/Interpretation
    16.16.9 Bilingual Jurors: Excusal Of Juror Based On Knowledge Of Language Being Interpreted
    16.16.10 Bilingual Jurors: A Juror's Perceived Shortcomings In Translation Should Be Discretely Communicated To The Judge Through Written Messages
    16.16.11 Interpreter In Juryroom
    16.16.12 Court Must Determine Need For Interpreter When There Is Evidence Of Potential Language Difficulty

16.17 Partial Dismissal Of Charges During Trial
    16.17.1 Partial Dismissal Of Charges Against Defendant: Cautionary Instructions
    16.17.2 Limiting Instruction As To Evidence Admitted Only As To Dismissed Charge

16.18 Disposition Of Charges Against Codefendant
    16.18.1 Cautionary Instructions Regarding Disposition Of Charges Against Codefendant
    16.18.2 Disposition Of Charges: Distinction As To Whether The Plea Of The Codefendant Was Made Before Or During Trial
    16.18.3 Jury Not To Consider The Guilty Plea Of An Accomplice Or Codefendant
    16.18.4 No Consideration Of Evidence As To Dismissed Codefendant

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

16.20 Retrial
    16.20.1 Needless Reference To Previous Trial Is Improper
    16.20.2 Cautionary Instruction Regarding Previous Trial

Chapter 17: Security And Privacy Issues

17.1 Courtroom Security: General Principles
    17.1.1 Propriety of Security
    17.1.2 Courtroom Security: Sources Of Prejudice To The Defendant
    17.1.3 Courtroom Security: Necessity Of Instruction
    17.1.4 Instruction Should Inform Jury That Security Measures Are Normal Procedures
    17.1.5 Courtroom Security: Necessity Of Repeating Presumption Of Innocence
    17.1.6 Courtroom Security: Effectiveness Of Instruction
    17.1.7 Courtroom Security: Request Or Sua Sponte
    17.1.8 Courtroom Security: No Instruction Over Objection
    17.1.9 Courtroom Security: Lack of Objection May Waive Issue For Appeal
    17.1.10 Making The Record To Show Prejudice From Courtroom Security
    17.1.11 Failure To Instruct Upon Security Measures: Standard of Prejudice

17.2 Shackling And Physical Restraint Of Defendant In Courtroom
        17.2.1 Propriety Of Shackling Defendant
            17.2.1.1 Shackling: Requirement Of Good Cause
            17.2.1.2 Improper For Court To Defer To Others Regarding Whether Shackling Or Other Security Measures Should Be Used
            17.2.1.3 Shackling: Violent Nature Of Charge Insufficient To Justify Physical Restraints In Courtroom
            17.2.1.4 Improper To Shackle At Penalty Phase Of Capital Trial Based Solely On Conviction At Guilt Trial
            17.2.1.5 Shackling: Failure To Object As Ineffective Assistance Of Counsel

        17.2.2 Shackling/Physical Restraint Of Defendant: Instructions
            17.2.2.1 Instruction That Shackling Is Routine Practice Not Related To Defendant

        17.2.3 Use Of Electric Shock Belt On Defendant
            17.2.3.1 Use Of Electric Shock ("Stun") Belt As Compromising Defendant's Ability To Participate In His Or Her Own Defense

17.3 Courtroom Security: Miscellaneous Issues
    17.3.1 Shackling Or Physical Restraint Of Defense Witness Or Other Restraint Of Defense Witness
    17.3.2 Appearance Of Defendant In Prison Uniform Or Jail Clothing/Jail Clothes
    17.3.3 Presence Of Additional Security Personnel
    17.3.4 Cameras And Tape Recordings Ordered Forbidden From Courtroom
    17.3.5 Stand-Up Metal Detectors
    17.3.6 Shackling Or Physical Restraint Of Defense Witness Or Other Restraint Of Defense Witness: Propriety/Cautionary Instructions
    17.3.7 Courtroom Security: Self-Representation -- Exclusion Of Pro Se Defendant From Sidebar Conferences

17.4 Juror Anonymity
    17.4.1 Juror Anonymity Improper Without A Good Cause
    17.4.2 Juror Anonymity Is Prejudicial To The Defendant
    17.4.3 If The Court Orders Juror Anonymity, Cautionary Procedures And Instruction May Be Necessary
    17.4.4 Limiting Admonition May Not Cure Improper Juror Anonymity
    17.4.5 Jury Anonymity Does Not Represent The Court’s Opinion
    17.4.6 Juror Anonymity: Presence Of Counsel When Deciding
    17.4.7 Juror Anonymity: Request For More Extensive Voir Dire

17.5 Sequestering Jury: Cautionary Instruction
    17.5.1 Propriety Of Sequestering Jury
    17.5.2 Sequestering Jury: Cautionary Instruction

17.6 Anonymity Of Victim
    17.6.1 Anonymity Of Victim: Cautionary Instruction

17.7 Public Trial Issues
    17.7.1 Public Trial: Generally
    17.7.2 Right To Public Trial: Voir Dire
    17.7.3 Right To Public Trial: Jury Instruction Procedures
    17.7.4 Closing Of Courtroom
    17.7.5 Arguing For Closure Of Trial
    17.7.6 Arguing Against Closure Of Trial
    17.7.7 Public Trial: Unwillingness Of Witness To Testify In Front Of Defendant's Family Is Not Good Cause To Close Courtroom
    17.7.8 Public Trial: Exclusion Of Nondisruptive Children Violates Right To Public Trial
    17.7.9 Public Trial: Closure Of Courtroom Based On Undercover Officer's Safety Concerns -- Requirement Of Good Cause
    17.7.10 Jury View: Presence Of Press And Public

Chapter 18: Defendant’s Conduct At Trial

18.1 Self Representation
    18.1.1 Self Representation Instructions
    18.1.2 Self Representation At Trial Does Not Preclude Representation By Counsel At Motion For New Trial
    18.1.3 Self Representation On Appeal
    18.1.4 Self Representation: Instruction To Accused Regarding Dangers Of Self Representation
    18.1.5 Self Representation: Court May Deny Request For Self-Representation Made After Start Of Jury Selection
    18.1.6 Self-Representation: Exclusion Of Pro Se Defendant From Sidebar Conferences
    18.1.7 Self Representation: Whether Judge Must Warn Defendant Of Dangers
    18.1.8 Defective Faretta Waiver As Structural Error
    18.1.9 Self-Representation: No Denial Of Right When Standby Counsel Gives Advice To Potential Defense Witness
    18.1.10 Failure To Inform Defendant Of Maximum Penalty Made Faretta Waiver Invalid

18.2 Absence Of Defendant
    18.2.1 Absence Of Defendant From Outset Of Trial: Should The Jury Be Cautioned Regarding Consciousness Of Guilt?
    18.2.2 Absence Of Defendant: Midtrial
    18.2.3 Absence Of Defendant: Right To Instruction On Privilege Against Self Incrimination
    18.2.4 Absence Of Defendant From Outset Of Trial For Reasons Other Then Flight
    18.2.5 Absence Of Defendant: Structural Error -- Proceeding Regarding Counsel's Conflict Or Ineffectiveness
    18.2.6 Absence Of Defendant Due To Arrest On Unrelated Charges

18.3 Failure Of Defendant To Testify
    18.3.1 Defendant's Failure To Testify Is Not A "Strategic Maneuver"
    18.3.2 Failure To Testify Instruction Must Preclude Any "Unfavorable Inference"
    18.3.3 Whether Instructions Against Drawing Inference From Failure To Testify Should Be Given When Defendants Disagree
    18.3.4 Waiver Of Instruction Regarding The Defendant's Failure To Testify To Avoid Prejudicially Highlighting The Matter
    18.3.5 Defendant Has Right To Instruction On Privilege Against Self Incrimination Even If Defendant Is Not Present During Trial
    18.3.6 Defendant Who Fails To Testify Need Not Disprove Anything
    18.3.7 Reference To Defendant's Testimonial Rights During Voir Dire As Prejudicial Error
    18.3.8 Failure Of Defendant To Testify: Federal Circuit Model Instructions And Notes

18.4 Failure Of Defendant To Present Evidence
    18.4.1 Defendant Not Required To Produce Any Evidence
    18.4.2 Distinction Between Instruction Regarding The Defendant's Failure To Testify And The Failure To Present Evidence
    18.4.3 "Number-Of-Witnesses" Instruction Should Not Be Given When Defendant Calls No Witnesses

18.5 Testimony Of Defendant
        18.5.1 Credibility Of Defendant's Testimony: Relying On Defendant’s Interest In The Outcome Of The Trial
            18.5.1.1 Improper To Provide A Separate Instruction On The Defendant's Interest In The Outcome
            18.5.1.2 Instruction On Defendant's Personal Interest In The Outcome Of The Case Should Be Balanced
            18.5.1.3 Instruction On Witness's Interest In Outcome Of Case: Improper If Defendant Is The Only Witness With Such An Interest
            18.5.1.4 Pre-Emptive Instruction Regarding Defendant's Interest In The Case

        18.5.2 Procedures And Instructions When Defense Counsel Believes That Defendant Will, Or Did, Commit Perjury
            18.5.2.1 Jury Should Not Be Told To Disregard Defendant's Testimony Even If Defense Counsel Believes That The Defendant Committed Perjury
            18.5.2.2 Cautionary Instruction When Defendant Testifies In Narrative Form

        18.5.3 Jury Consideration Of The Fact Defendant Attended The Trial
            18.5.3.1 Consideration Of Defendant's Trial Attendance: Opening The Door For Consistent Statements
            18.5.3.2 Consideration Of Defendant's Trial Attendance: Defense Argument As To Prosecution Witness
            18.5.3.3 Consideration Of Defendant's Trial Attendance: Request That Defendant Be Allowed To Testify Before The Prosecution Witnesses

18.6 Demeanor And In-Court Behavior Of Nondisruptive Defendant
    18.6.1 Jury May Not Consider The Defendant's Nontestimonial Appearance Or Demeanor While Not Testifying
    18.6.2 Capital Trial: No Consideration Of Nontestimonial Appearance Or Demeanor
    18.6.3 Non-Disruptive Defendant: Improper To Consider Nontestimonial Demeanor Or Appearance
    18.6.4 Jury May Only Consider The Defendant's Testimonial Demeanor On The Question Of Credibility
    18.6.5 Consideration Of Defendant's Culture, In Evaluating Demeanor At Trial
    18.6.6 Medication Of Defendant At Trial
    18.6.7 Credibility Of Witnesses: Improper For Prosecutor To Force Defendant To Evaluate The Credibility Of Prosecution Witnesses -- Forcing A Defendant To Call A Prosecution Witness A Liar Is Prosecutorial Misconduct
    18.6.8 Improper For Prosecutor To Ask Defense Witnesses If Government Witnesses Were Lying – Forcing A Defense Witness To Call A Prosecution Witness A Liar Is Prosecutorial Misconduct
    18.6.9 Improper Prosecution Comment On Defendant’s In-Court Demeanor

18.7 Disruptive Defendant
    18.7.1 Disruptive Defendant: Cautionary/Limiting Instruction
    18.7.2 Disruptive Defendant: Options Available To Court
    18.7.3 Disruptive Defendant: Defendant Should Be Warned
    18.7.4 Disruptive Defendant: Ejecting Defendant

Chapter 19: Multiple Defendants

19.1 Checklist Of Multiple Defendant Issues
    19.1.1 Multiple Defendants: Generally
    19.1.2 Multiple Defendants: Separate Consideration Of Multiple Defendants (see Deliberations)
    19.1.3 Multiple Defendants: Elements Of Charge Must Be Specified As To Each Defendant
    19.1.4 Separate Consideration For Each Defendant: Applicability To All Decisions And Findings
    19.1.5 Separate Consideration For Each Defendant: Circumstances Where Instruction May Not Be Fully Applicable
    19.1.6 Individualized Consideration For Accomplice
    19.1.7 Multiple Defendants: Verdict As To One Defendant Should Not "Influence" Verdict As To Other Defendant; Use Of Term "Control" Not Sufficient
    19.1.8 Conspiracy: Decision Must Be As To Each Defendant (Multiple)
    19.1.9 Adoptive Admissions: Jointly Interrogated Defendants

19.2 Instruction Must Not Favor One Codefendant Over The Other
    19.2.1 Multi-Defendant Trial -- No Emphasis Of Individual Defendant
    19.2.2 Due Process Requires That The Instructions Be Balanced Between Codefendants
    19.2.3 Accessory Instruction As To One Defendant And Not The Other May Be Improper Comment On Facts
    19.2.4 Instruction On Lesser Offenses As To One Codefendant And Not The Other May Improperly Direct The Jury

19.3 Conflict Between Codefendants
    19.3.1 Clarification Of Burden Of Proof When One Defendant Points The Finger At Another
    19.3.2 "Reverse Missing Witness" Instruction When Witness Is Codefendant Or Accomplice
    19.3.3 Inculpatory Statement Of One Codefendant In Multi-Defendant Trial (Bruton)
    19.3.4 Whether Instructions Against Drawing Inference From Defendant's Failure To Testify Should Be Given When Defendants Disagree
    19.3.5 Limitation Of Consciousness Of Guilt Evidence To Applicable Codefendant
    19.3.6 Applicability Of Flight Of Codefendant To Defendant: Conspiracy Or Joint Venture
    19.3.7 Consciousness Of Guilt By Codefendant Is Not Testimony Against Defendant For Purposes Of Confrontation And Bruton
    19.3.8 [Reserved]
    19.3.9 Efforts by Defendant to Alter Evidence In Multiple Defendant Cases: Only Applicable To Defendant Who Made The Attempt
    19.3.10 Conspiracy: Limiting Instruction When Coconspirator Statements Are Not Admissible Against All Codefendants
    19.3.11 When Alibi Is Not Raised By All Codefendants In Multi-Defendant Trial
    19.3.12 Remorse As Mitigation: Conflict Between Codefendants When One Relies On Remorse And The Other Doesn't
    19.3.13 Remorse As Mitigation: Conflict Between Codefendant's Regarding Right To Testify And Right To Allocution
    19.3.14 Readback: Where Readback Helps Some Codefendants And Harms Others (Multiple)
    19.3.15 Accomplice Cautionary Instruction: Refusal As Reversible Error
    19.3.16 Accomplice Instruction: Improper When Accomplice Is Codefendant
    19.3.17 No Reference To The Term "Accomplice"
    19.3.18 Impeachment By Prior Conviction: Cautionary/Limiting Instruction In Multiple Defendant Cases
    19.3.19 Presence Of Codefendant As Suggestive
    19.3.20 Propriety Of Partial Verdict Instruction: Multiple Defendants
    19.3.21 Lingering Doubt Or Residual Doubt: Multiple Defendants
    19.3.22 Severance Of Parties: Cautionary Instruction

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

19.5 Behavior Of Codefendant Or Counsel For Codefendant
    19.5.1 Cautionary Instruction Regarding Disruptive Behavior By Codefendant
    19.5.2 Duty To Object: Misconduct Of Cocounsel
    19.5.3 Misconduct Of Cocounsel As An Abridgement Of Defendant's Constitutional Rights
    19.5.4 Limitation Of Consciousness Of Guilt Evidence To Applicable Codefendant
    19.5.5 Witness Who Has Pled Guilty: Limited Purpose Instruction
    19.5.6 Impeachment Of Codefendant With Prior Conviction: Limiting Instruction
    19.5.7 Limitation Of Flight Evidence To Applicable Codefendant
    19.5.8 Conspiracy: Limiting Instruction When Coconspirator Statements Are Not Admissible Against All Codefendants
    19.5.9 Conspiracy: Limiting Instruction That Subsequent Concealment By One Conspirator May Not Be Considered As To Other Coconspirators

19.6 Multiple Defendants: Miscellaneous Issues
    19.6.1 Joint Defense And Joint Defense Agreements
    19.6.2 Failure To Conduct Adequate Discovery And/Or Investigation Regarding Codefendant As Ineffective Assistance Of Counsel
    19.6.3 Failure To Cross-Examine Codefendant Or Object To Codefendant’s Testimony As Ineffective Assistance Of Counsel
    19.6.4 Objection By Codefendant May Be Sufficient To Preserve Issue For Appeal
    19.6.5 Multiple Defendants: Counsel's Conflict Of Interest Must Have Adverse Effect To Require Reversal

Chapter 20: Prosecutor Duties And Misconduct At Trial
    20.1 Duty Of Prosecutor To Ensure Fundamentally Fair Trials
    20.2 Prosecutor Misconduct During Argument To Jury Or Summation
    20.3 Credibility Of Witnesses: Improper For Prosecutor To Force Defendant To Evaluate The Credibility Of Prosecution Witnesses
    20.4 Prosecutor Misconduct: Improper Vouching For Witness
    20.5 Prosecutor Misconduct: Duty To Correct Misstatements Made By Prosecution Witnesses
    20.6 Prosecution Misconduct: Question Assuming As True A Fact Known To Be False
    20.7 Suggestive Questions As Prosecutorial Misconduct
    20.8 Prosecution Misconduct: Refusal To Follow Exculpatory Leads As Evidence Of Bias
    20.9 Prosecutor Misconduct: Death Penalty
    20.10 Prosecution Misconduct: Premature Display Of Physical Evidence
    20.11 Prosecutor Comment On Assertion Of Marital Privilege

Chapter 21-23: [Reserved]