February 2006
Volume 2, Number 2
Table of Contents
Tips on How to Make it Through Trial

There are three principles that you should keep in mind during a multi-defendant trial:

The first is the importance of communication between all codefendants. Even if they are a pain in the neck, follow the rule that you should keep your friends close but your enemies closer. The last thing you need is to be surprised by a codefendant's case. Share opening and closing statements, if possible, and determine who will go first in the presentation of the defense. Even if you are not a peripheral defendant but a main focus of the government's case, keep close contact with those defendants who you may consider "free riders." Errors made by codefendant's counsel can rebound to the detriment of every defendant.

The second is to assess your role in the case. Is your client a main defendant, or a peripheral one? For example, two defendant in a large RICO case sat for ten months before their names were even mentioned. Marcus, supra, n. 162. If you client falls into the latter category, adopt an approach that mirrors his level of involvement so as to minimize the attention paid to him by the jury. Keep your client in a minimal role by your own conduct during trial. Make his or her level of involvement clear in a brief opening statement; only make objections that count for evidence and testimony that directly implicate your client; consider not cross examining a witness if he or she has not offered any testimony that relates to your client or if codefendant's counsel has ably destroyed the witness' credibility or made points that you would have; adopt a professional, low key demeanor during trial; and bring home the point in closing that it may be clear why the other defendant's are here, but the jury might have to think long and hard to come up with a theory of why the defendant is named in the indictment. Cotsirilos and Kennelly, supra, at 43-44. 

The third is to try and distance your client from the disruptive codefendant. This is essential because even as in the case of United States v. Lara , 181 F.3d 183 (1st Cir. 1999) , where the defendant, a/k/a "King Animal" stood up, turned his back to the jury, unzipped his pants, and urinated on the carpet in the courtroom, the defense motions to sever were denied, and the denial of those motions upheld by the trial court. Why? Because the courts are of the opinion that a cautionary instruction will cure whatever prejudice might spill over to the defendant. Alternatively, a reluctance to grant such motions also precludes defendants from acting up during a trial with outrageous conduct when they realize that it's not going well and they would rather take their chances in a second trial. Marcus, supra, at 97.

Copr. (C) 2006 West, a Thomson business. No claim to orig. U.S. govt. works. This article is reprinted with permission from West, a primary sponsor of the General Practice, Solo and Small Firm Division.

Originally published in Criminal Practice Guide, May/June 2005

 

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