BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 1 - Criminal Pre-Trial

    1.08 Joint Representation Of Codefendants (FRCRP 44(c)(2))

        1.08.1 Joint Representation Of Codefendants: Introductory Note
        1.08.2 Joint Representation Of Codefendants: Procedure
        1.08.3 Joint Representation Of Codefendants: Other Sources [Reserved]

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

1.08.1 Joint Representation Of Codefendants: Introductory Note

[Note: Under the Crime Victims’ Rights Act, 18 USC 3771(a)(2) and (3), any victim of the offense has the right to notice of "any public court proceeding . . . involving the crime . . . of the accused," and to attend that proceeding. It may be advisable to ask the prosecutor if there are any victims and, if so, whether the government has fulfilled its duty to notify them.]

FRCRP 44(c)(2) provides as follows in cases of joint representation:

The court must promptly inquire about the propriety of joint representation and must personally advise each defendant of the right to effective assistance of counsel, including separate representation. Unless there is good cause to believe that no conflict of interest is likely to arise, the court must take appropriate measures to protect each defendant’s right to counsel.

When a trial court becomes aware of a potential conflict of interest, it must pursue the matter, even if counsel does not. Judges should strongly recommend to codefendants that they avoid dual representation and should make clear that a court-appointed attorney is available to represent each defendant or to consult with each defendant concerning dual representation. This section is a hearing procedure for so advising defendants and for obtaining a waiver of the right to separate counsel. Note, however, that in certain situations, a district court may disqualify an attorney, despite a defendant’s voluntary, knowing, and intelligent waiver of the right to conflict-free counsel. See Wheat v. United States, 486 U.S. 153, 163 (1988) ("district court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses").

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
With March 2000 Revisions

1.08.2 Joint Representation Of Codefendants: Procedure

A.     Determine if the defendant is competent.

1. Ask the defendant:

(a) Mr., Ms., Mrs., Miss _________, how old are you?

(b) How far did you go in school?

[If you are not sure the defendant can understand English, ask:]

(c) Are you able to speak and understand English?

[Ask defense counsel if he or she has been able to communicate with the defendant in English. If you doubt the defendant’s capacity to understand English, use a certified interpreter. See 28 USC 1827.]

(d) Have you taken any drugs, medicine, or pills or drunk any alcoholic beverage in the past twenty-four hours? Do you understand what is happening today?

2. Then ask defense counsel and prosecutor:

Do either of you have any doubt as to the defendant’s competence at this time?

3. State your finding on the record of the defendant’s competence.

B.     Emphasize the seriousness of the charges. Tell the defendant the maximum punishment for each count.

C.     Tell the defendant:

1. If at any time you do not understand something or have a question, consult your lawyer or ask me any questions.

2. This proceeding can be continued to another day if you wish to consult another lawyer.

D.     Advise the defendant about the apparent conflict of interest in his or her lawyer’s representation. For example, state:

The United States Constitution gives every defendant the right to effective assistance of counsel. When one lawyer represents two or more defendants in a case, the lawyer may have trouble representing all of the defendants with the same fairness. This is a conflict of interest that denies the defendant the right to effective assistance of counsel. Such conflicts are always a potential problem because different defendants may have different degrees of involvement. Each defendant has the right to a lawyer who represents only him or her.

E.     Point out the various ways in which dual representation might work to the defendant’s disadvantage. This may be done by giving the defendant a form to read or by advising the defendant in the following way:

1. Dual representation may inhibit or prevent counsel from conducting an independent investigation in support of each defendant’s case. For example, the attorney–client privilege may prevent your lawyer from communicating to you information gathered from another defendant.

2. The government may offer immunity or offer to recommend a lesser sentence to one defendant for cooperating with the government. Should you receive such an offer, your lawyer ought to advise you whether or not to accept it. But if your lawyer advises you to accept the offer, it may harm the cases of the other defendants represented by that lawyer.

3. The government may let a defendant who is not as involved as other defendants plead guilty to lesser charges than the other defendants. After the guilty plea, however, the government may require the defendant to testify. A lawyer who represents more than one defendant might recommend that the first defendant not plead guilty in order to protect the other defendants that the lawyer represents. On the other hand, the lawyer might recommend that the first defendant plead guilty, which might harm the cases of the other defendants.

4. Dual representation may affect how your lawyer exercises peremptory challenges or challenges for cause during jury selection. Potential jurors who may be perceived as favorable to you may be perceived as harmful to another defendant, or jurors who may be perceived as favorable to other defendants may be harmful to you.

5. Sometimes one of the defendants represented by a lawyer will take the stand to testify in his or her own behalf. In order to represent the other defendants fairly, the lawyer should question the defendant on the stand as completely as possible. However, the lawyer may not be able to do that because he or she cannot ask the defendant as a witness about anything that the defendant has told the lawyer in confidence.

6. The best defense for a single defendant often is the argument that while the other defendants may be guilty, he or she is not. A lawyer representing two or more defendants cannot effectively make such an argument.

7. Evidence that helps one defendant might harm another defendant’s case. When one lawyer represents two or more defendants, the lawyer might offer or object to evidence that could help one defendant but harm another.

8. Regarding sentencing, dual representation would prohibit the lawyer from engaging in post-trial negotiations with the government as to full disclosure by one defendant against the other. It would also prohibit the lawyer from arguing the relative culpability of the defendants to the sentencing judge.

F.     An attorney proposing to represent codefendants should be required to assure the court that there will be no conflict that could result in a lack of effective assistance of counsel or other prejudice to any defendant.

G.     Consider recommending that the defendant consult with other, independent counsel about the wisdom of waiving the right to separate counsel. Offer to make CJA counsel available (if appropriate) and allow adjournment for that purpose.

H.     If the defendant wants to waive the right to separate counsel, get a clear, on-the-record oral waiver by him or her of the right to separate counsel. In addition, you may want the defendant to sign a written waiver.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

1.08.3 Joint Representation Of Codefendants: Other Sources [Reserved]