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F 2.006a
Cautionary Instruction: Dismissed Counts
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.]
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.) CALJIC does not contain such an instruction. The above instruction is adapted from Saltzburg & Perlman, Federal Criminal Jury Instructions (1990 materials), Instruction 3.63. (See also Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. #16, p. 23.)