Every criminal case has its unique challenges. Multi-codefendant federal criminal jury trials, however, add additional difficulties and considerations the extend beyond the customary issues that present themselves during a criminal trial.
In April 2024, the trial lawyers of McCormack & McCormack Mr. Jarrett McCormack and Mr. Robert Canoy undertook a two week federal jury trial in an effort to beat the odds. What odds? The odds which indicate that the deck is stacked against the Defense and in favor of the prosecution in federal cases.
In 2023, the Pew Research Center published their conglomeration of statistics from federal criminal cases for fiscal year 2022. Not surprisingly, their research found that for fiscal year 2022, 89.5 percent of those charged with federal crimes pled guilty. That’s right, nearly 90 percent of federal cases charged in 2022 resulted in guilty pleas.
Sometimes fortune favors the bold, but it is not without its risks. According to Pew’s research, of all the federal criminal defendants who went to contested jury trials in 2022, only 0.4% were found not guilty.
These stifling odds also do not take into consideration the unique challenges that occur when a person faces a joint trial in which multiple co-defendants have their fate decided at the same time by the same jury. The challenges with these types of trial are the lack of protections on the use of evidence which is admitted during the trial.
To explain this predicament further, imagine the situation where each codefendant and their counsel have only their own best interest at heart, as expected. Many times this self-interest leads to not only animosity between the codefendants, but an actual situation where one codefendant’s trial strategy relies heavily on placing the blame on another codefendant. This may result in one or more defendants not only defending against the Government prosecutors across the isle but also multiple codefendants sitting at the table next to them. This becomes compounded by the fact that all evidence against all codefendants is received and considered by the same jury—even evidence which has little to do with a particular codefendant. The phrase guilty by association takes on new meaning in these situations. While the Court will provide a standard “spillover” jury instruction, in which the Court attempts to instruct the jury that they must keep the evidence separate and find sufficient proof for each defendant without regard to the other defendants, the effectiveness of this instruction is concerning.
One of the only significant protections that is binding on the federal courts is the Brutonrule for codefendant cases. The Bruton rule began as an absolute bar to admitting a codefendant’s pretrial confessions, admissions, or incriminating statements in a trial with multiple codefendants. At its origin, the rule’s theory was founded in constitutional confrontation clause concerns because a codefendant obviously cannot cross-examine, confront, or otherwise question a codefendant during trial. Through subsequent cases, however, the Bruton rule is now subject to numerous exceptions and work arounds that have diminished its impact in terms of real worldprotections in codefendant trials.
In practice, in preparation for your case, it is helpful to envision the uniqueness of a multiple codefendant jury trial. To that end, several practice tips and pointers may be helpful:
In the pretrial stages of your case, each codefendant will file their own motions. When cases and concepts are not adverse, there is strategically the option to file joint motions, or to join or otherwise adopt a codefendant’s filing. Codefendants counsel have the option to enter into a Joint Defense Agreement (JDA), in which their might be varying amounts of strategic cooperation between codefendants in preparation for trial. When codefendant equities and interest are completely inapposite, such a JDA will likely not be possible. Before trial you will also need to make the determination of whether you want to attempt to sever your case from the group in hopes of achieving your own trial—but the standard to actually have the Court order a severance over the Government’s objection is significant making most severance motions end in a denial.
As trial begins the codefendants will work through jury selection. Each defense counsel will submit proposed voir dire questions which are unique to their case concerns. Many federal judges do not allow any attorney conducted voir dire, so you may be simply proposing questions that the judge will ask the venire. After the judge finishes the voir dire process, counsel will be given the opportunity make challenges for cause. Some judges will require all codefendant counsel to confer and essentially propose joint defense challenges for cause—a situation that could become problematic if there were disagreement.
Similarly, once challenges for cause are decided by the Court, the Government and the Defense will have an opportunity to exercise peremptory challenges. There is no rule basedpolicy on how peremptory are handled in multiple codefendant cases. Instead of dividing the total peremptory challenges amongst each individual codefendant, many judges will require the codefendants to jointly exercise their challenges for cause. What would be the remedy if the codefendants could not agree who to strike? Good question.
As trial proceeds the uniqueness continues. The prosecution will give their opening statement and then each codefendant may give an opening statement—generally in the order in which they were named on the indictment. As witnesses are called by the prosecution, each codefendant has the opportunity—in turn—to question each witness. The order of question, however, is usually set by the standard order of events, meaning you may always be the first (or last) of the defendants to have access to a given witness. Consequently, you have don’t really have a remedy for codefendant eliciting information from a witness which may be helpful to them but very harmful for your client.
All in all, federal multiple codefendant trials present a unique set of challenges and difficulties which are very unique to that practice. In selecting your attorney for this type of case, be sure that you retain counsel which has experience with this very nuanced and specialized area of the law.
To find out more about how we can help, contact our firm online or request a free consultation today.