I have a case in which a co-defendant is going to trial beore her alleged cohort. Can I call the co-defendant who has a trial pending to the stand? Can she take the fifth in front of a jury? If not, am I entitled to an instruction as to the co-defendant not testifying? I think the jury will hold it against me if I don't call the co-defendant or attempt to call her.

My understanding has always been that you can't put a witness on the stand for the purpose of making them take the 5th. If you know they are going to do that ahead of time--I assume your co-defendant has counsel--then you can't put them up there in front of the jury.

In the past we've used testimonial immunity agreements in an effort to make co-defendants testify. However even then their attorney will instruct them not to answer and to take a contempt ruling from the judge that puts them in jail.

Bottom line from my perspective: Voir dire, voir dire, voir dire on this issue so when you don't call the co-defendant all the jurors know why.

I agree with Robert.

If you're going to do it, have the jury excused first. Do not build in error, your appellate prosecutors will appreciate it.