SERIES 200 POST-TRIAL: INTRODUCTORY
F 205 CHARGE REMOVED FROM JURY CONSIDERATION
F 206 ONE OR MORE DEFENDANTS REMOVED FROM CASE
TABLE OF CONTENTS
F 205 CHARGE REMOVED FROM JURY CONSIDERATION
F 205 Inst 1 Cautionary Instruction: Dismissed Charge
F 206 ONE OR MORE DEFENDANTS REMOVED FROM CASE
F 206 Inst 1 (a & b) Cautionary Instruction: Dismissed Defendant
Return to Series 200 Table of Contents.
F 205 Charge Removed From Jury Consideration
F 205 Inst 1 Cautionary Instruction: Dismissed Charge
*Replace CC 205 with:
Alternative a:
I told you when the trial began that one of the charges against the defendant[s] was __________ <describe charge>.This charge will no longer be part of the trial and should have no bearing on any of your decisions regarding the remaining charges. [I told you that certain evidence __________ <briefly describe the evidence in summary form—e.g., prior acts of the defendant> could be used only in connection with the charge that is no longer part of the case. You should now completely disregard this evidence.]
Alternative b:
The issue of the guilt of the defendant[s] as to [Count[s] ____, ____, ] is no longer before you.
Do not consider this fact for any purpose. It is not relevant to whether the defendant[s] [is] [are] guilty or not guilty of any remaining count[s].
Further, do not conclude from the fact that this instruction has been given that I am expressing any opinion as to the facts or whether [any] defendant is guilty or not guilty of any other crime[s].
Points and Authorities
When part of the charges are dismissed mid-trial, there is a danger that the jury may speculate as to the reasons for the dismissal. The prejudice which may accrue from such speculation may be countered by an instruction that the dismissed count should not be considered. (See U.S. v. D’Alora (1st Cir. 1978) 585 F2d 16, 21-22.) Additionally, any evidence admitted only as to the dismissed charged should not be used. (See CALJIC 17.46 (7th ed.); see also Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. #16, p. 23.)
Identification Of Parties— See FORECITE
F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 6.7 [Reliability: Non-Capital Charge]
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.006a.
F 206 One Or More Defendants Removed From Case
F 206 Inst 1 (a and b) Cautionary Instruction: Dismissed Defendant
*Replace CC 206 with:
Alternative a:
The case has been disposed of as to the defendant[s] __________ <name defendants dismissed>. [He] [She] [They] [are] [is] no longer of concern to you, and you should not speculate as to the reason for this disposition. This disposition should not control or influence your verdict with reference to the remaining defendant[s] and you must base your verdict as to [him] [her] [them] solely on the evidence against [him] [her] [them].
Alternative b:
The fact that an accomplice has entered a plea of guilty cannot be considered by you as evidence of the guilt of any other person.
Points and Authorities
When the case has been dismissed against one of the defendants during trial, there is a danger that the jury will speculate as to why this action has been taken. (People v. Young (1978) 85 CA3d 594, 602.) Specifically, the jury might speculate that the co-defendant has pled guilty. This instruction, which is a standard federal instruction.
Alternative “a” above has been held to satisfactorily address this concern. (See U.S. v. Gibbons (2nd Cir. 1979) 602 F2d 1044, 1048; see also Young 85 CA3d at 602; see also Devitt, et al., Fed. Jury Prac. & Inst. (1992), §11.10; Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. #17, p. 24.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.7 [Guilt By Association]
FORECITE CG 6.7 [Reliability: Non-Capital Charge]
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
The second instruction above was given as requested in People v. White, No. 117535, San Francisco Superior Court.
CALJIC NOTE: See FORECITE F 2.005a.
