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2.14 Disposition of Charge Against Codefendant

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2.14 DISPOSITION OF CHARGE AGAINST CODEFENDANT

For reasons that do not concern you, the case against codefendant [name] is no longer before you. Do not speculate why. This fact should not influence your verdict[s] with reference to the remaining defendant[s], and you must base your verdict[s] solely on the evidence against the remaining defendant[s].

Comment

Although it is not plain error to give a similar instruction when a codefendant dies after the jury begins to deliberate, it would be advisable under certain circumstances to give a "simple and honest" explanation to a jury as to why a codefendant is no longer in the case, particularly if the codefendant’s removal from the case occurred early in the trial. United States v. Bussell, 414 F.3d 1048, 1054 (9th Cir.2005). The later in the trial the codefendant is "removed," the more likely the jury would be influenced by a fact-specific disclosure, especially if the remaining defendant[s] had a close relationship with the withdrawn defendant, and therefore a better approach at that stage might be simply informing the jury that the codefendant "was no longer a defendant in the case." Id.

No reference should ordinarily be made in this situation to a plea of guilty by the codefendant. See, e.g., United States v. Barrientos, 758 F.2d 1152, 1159-60 (7th Cir.1985) (when a codefendant becomes absent from a trial for any reason, a trial court should acknowledge the codefendant’s absence to the jury and instruct them on their duty to consider the evidence of guilt or innocence as to the remaining defendant without any reference to any implications of the codefendant’s absence). See also United States v. Carraway, 108 F.3d 745, 755 (7th Cir.1997); United States v. Rapp, 871 F.2d 957, 967-68 (11th Cir.1989).

See also United States v. Candoli, 870 F.2d 496, 501-02 (9th Cir.1989) ("flight" instruction on codefendant’s midtrial disappearance did not prejudice defendant when instruction did not require jury to consider codefendant’s absence as evidence of guilt and provided that evidence of codefendant’s flight was not admissible against defendant).