Instruction 1.320, Criminal Model Jury Instructions for Use in the District Court

WITHDRAWN CHARGES AGAINST DEFENDANT

WITHDRAWN CASE AGAINST CODEFENDANT;

WITHDRAWN CHARGES AGAINST DEFENDANT

I. WITHDRAWN CASE AGAINST CODEFENDANT

Members of the jury, I am withdrawing from your consideration

the case against [codefendant] . That case is no longer before you for

decision. You are to deliberate in this case only concerning the

charge(s) pending against [remaining defendant] .

You are not to speculate about why the case against [codefendant]

has been withdrawn from your consideration, and it is not to influence

your verdict(s) concerning [remaining defendant] in any way. You are

not to consider it in any way or discuss it in your deliberations. Your

responsibility is to decide the charges that remain pending against

[remaining defendant] based solely on the evidence.

This instruction may be given when a codefendant has entered a change of plea or has

successfully moved for a required finding of not guilty and is therefore no longer in the

case. Commonwealth v. Pasciuti, 12 Mass. App. Ct. 833, 839-846 & n.7 (1981) (proper

even without request to advise jury not to speculate why case against codefendant has

been withdrawn, and that it should not influence their verdict as to remaining

codefendant, which should be based solely on evidence against him).

The parties may request and the judge should consider whether certain evidence should

or must be stricken as a result of the withdrawal of a case against a co-defendant. See

Commonwealth v. Anolik, 27 Mass. App. Ct. 701, 707-708 (1989).

Where the co-defendant is absent from the trial for another reason, like death, see

Commonwealth v. Mora, 82 Mass. App. Ct. 575, 580-581 (2012), or failure to appear

WITHDRAWN CHARGES AGAINST DEFENDANT

after impanelment, see Commonwealth v. Muckle, 59 Mass. App. Ct. 631, 634-635

(2003), a neutral instruction informing the jury that the co-defendant was not present and

that they should not speculate as to the reasons for that absence is proper.

II. WITHDRAWN CHARGES AGAINST DEFENDANT

Members of the jury, I am withdrawing from your consideration

the following charge(s) against the defendant: [withdrawn charge(s)] .

(That charge is) (Those charges are) no longer before you for

decision. You are to deliberate in this case only concerning the

remaining charge(s), namely:

[remaining charges] .

You are not to speculate about why (one charge) (some charges)

have been withdrawn from your consideration, and it is not to

influence your verdict(s) on the remaining charge(s) in any way. You

are not to consider it in any way or discuss it in your deliberations.

Your responsibility is to decide the charge(s) that remain(s) based

solely on the evidence.

This instruction may be given when a defendant has successfully obtained a required

finding of not guilty as to one or more of multiple pending complaints. See, e.g.,

Commonwealth v. Kalhauser, 52 Mass. App. Ct. 339, 347 (2001); Commonwealth v.

Yelle, 19 Mass. App. Ct. 465, 475 (1985) (“proper and advisable” to give instruction sua

sponte).

The parties may request and the judge should consider whether certain evidence should

or must be stricken as a result of the withdrawal of certain charges. See Commonwealth

WITHDRAWN CHARGES AGAINST DEFENDANT

v. Anolik, 27 Mass. App. Ct. 701, 707-708 (1989) (after granting a motion for required

finding on some of the indictments, the trial judge instructed the jury to disregard any

evidence that was not directly relevant to the indictments still on trial.)