Return to CALJIC Part 14-17 – Contents
F 17.00 n1 Multiple Defendants: Elements of Charge Must Be Specified As to Each Defendant.
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 [conviction against four defendants reversed when elements of the charge were specified only as to one of the defendants].)
F 17.00 n2 Prejudicial Joinder Of Weak Case With Strong Case.
There is a high risk of prejudice whenever joinder of counts allows evidence of other crimes to be introduced in a trial of charges with respect to which the evidence would otherwise be inadmissible. (See U.S. v. Lewis (9th Cir. 1986) 787 F2d 1318.) Bean v. Calderon (9th Cir. 1998) 163 F3d 1073, held that such a joinder was prejudicial in a case where the jury was not instructed to consider the evidence of each count separately. (See also People v. Grant (2003) 113 CA4th 56, 587-90, 593 [joinder substantially prejudiced defendant and denied him a fair trial].)
F 17.00a
Multiple Defendants, One Count
*Add to CJ 17.00:
ALTERNATIVE FORMS
Alternative Form 1:
Multiple Defendants Charged In One Count
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 as to each defendant. Each defendant is entitled to your separate consideration. Do not think of the defendants as a group. You must return a separate verdict for each defendant.
Points and Authorities
(Adapted from Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Inst. # 46, Alternative B, p. 56.) The Federal Judicial Center instruction is preferable to CJ 17.00 because it more clearly admonishes the jury regarding the applicable considerations when multiple defendants are charged in one count. For example, the CALJIC instruction contains no admonition requiring the jury to give separate consideration to the evidence about each defendant.
Jury consideration of improper matters lessens the prosecution’s burden of proof in violation of the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
Alternative Form 2:
Instruction Concerning Consideration Of Each Defendant Separately
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.
Points and Authorities
Adapted from Deerings EC 355, “Suggested Forms.”
Jury consideration of improper matters lessens the prosecution’s burden of proof in violation of the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
RESEARCH NOTES: Inconsistency of criminal verdicts as between two or more defendants tried together, 22 ALR3d 717 and Later Case Service.
