Criminal Justice Section  

   Standards
 

JOINDER & SEVERANCE

PART I.

DEFINITIONS

Standard 13-1.1 Accusatory instrument

An accusatory instrument is a written statement which accuses one or more persons of the commission of one or more offenses and which is sufficient to support a prosecution.

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Standard 13-1.2 Related offenses

Two or more offenses are related offenses if they are based upon the same conduct, upon a single criminal episode, or upon a common plan.

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Standard 13-1.3. Unrelated offenses

Unrelated offenses are any offenses which are not "related" offenses.

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PART II.

JOINDER

Standard 13-2.1. Joinder of offenses

Any two or more offenses committed by the same defendant:

(a) may be joined in one accusatory instrument, with each offense stated in a separate count; or

(b) may be joined for trial, upon the application of the prosecuting attorney or the defense.

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Standard 13-2.2. Joinder of defendants

(a) Two or more defendants may be joined in one accusatory instrument:

(i) charging one offense, or charging two or more unrelated offenses (with each offense stated in a separate count) when each of the defendants is charged with accountability for each offense included; or

(ii) charging two or more offenses (with each offense stated in a separate count) when the offenses are alleged to be related.

(b) Two or more defendants may be joined for trial upon the application of the prosecuting attorney or the defense whenever the defendants could have been joined in an accusatory instrument pursuant to paragraph (a).

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Standard 13-2.3 Failure to join certain offenses

(a) When a defendant has been charged with two or more related offenses which are within the jurisdiction of the same court, a timely defense motion to join the offenses for trial should be granted unless the court determines that, because the prosecuting attorney does not have sufficient evidence to warrant trying some of the offenses at that time, or for some other reason, the ends of justice would be defeated if the motion were granted in whole or in part.

(b) A defendant's failure to move for joinder constitutes a waiver of any right of joinder as to "same conduct" or "single criminal episode" offenses which the defendant knew had been charged.

(c) A defendant who has been tried for one offense may thereafter move to dismiss any additional offense based upon the same conduct or the same criminal episode, unless a motion for joinder of these offenses was previously denied, unless the right of joinder was waived pursuant to paragraph (b), or unless the two offenses are not within the jurisdiction of the same court. The motion to dismiss must be made prior to the second trial, and should be granted unless the court determines that, because the prosecuting attorney did not have sufficient evidence to warrant trying the additional offense at the time of the first trial, or for some other reason, the ends of justice would be defeated if the motion were granted in whole or in part.

(d) Entry of a plea of guilty or nolo contendere to one offense does not bar the subsequent prosecution of any additional offense based upon the same conduct or the same criminal episode. A defendant may enter a plea of guilty or nolo contendere on the basis of a plea agreement in which the prosecuting attorney agreed to seek dismissal, agreed not to oppose dismissal, or agreed not to initiate prosecution of other offenses based upon the same conduct or upon the same criminal episode.

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PART III.

SEVERANCE

Standard 13-3.1. Severance of offenses

(a) Whenever two or more unrelated offenses have been joined for trial, the prosecuting attorney or the defendant shall have a right to a severance of the offenses.

(b) The court, on the application of either the prosecuting attorney or the defendant, should grant a severance of related offenses:

(i) before trial, whenever severance is deemed appropriate to promote a fair determination of the defendant's guilt or innocence of each offense; or

(ii) during trial, whenever, upon the consent of the defendant or upon a finding of manifest necessity, severance is deemed necessary to achieve a fair determination of the defendant's guilt or innocence of each offense.

(c) When evaluating whether severance is "appropriate to promote" or "necessary to achieve" a fair determination of the defendant's guilt or innocence for each offense, the court should consider among other factors whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.

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Standard 13-3.2. Severance of defendants

(a) When a defendant moves for severance because an out-of-court statement of a codefendant makes reference to, but is not admissible against, the moving defendant, the court should determine whether the prosecution intends to offer the statement in evidence as part of its case in chief. If so, the court should require the prosecuting attorney to elect one of the following courses:

(i) a joint trial at which the statement is not admitted into evidence;

(ii) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been deleted, provided that, as deleted, the statement will not prejudice the moving defendant; or

(iii) severance of the moving defendant.

(b) The court, on application of the prosecuting attorney, or on application of the defendant other than under paragraph (a), should grant a severance of defendants:

(i) before trial, whenever the defendants are not joinable pursuant to standard 13-2.2(a), or whenever severance is deemed appropriate to promote a fair determination of the guilt or innocence of one or more defendants; or

(ii) during trial, whenever, upon consent of the defendant to be severed or upon a finding of manifest necessity, severance is deemed necessary to achieve a fair determination of the guilt or innocence of one or more defendants.

(c) When evaluating whether severance is "appropriate to promote" or "necessary to achieve" a fair determination of one or more defendants' guilt or innocence for each offense, the court should consider among other factors whether, in view of the number of offenses and defendants charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense and as to each defendant.

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Standard 13-3.3. Timeliness of motion; waiver, double jeopardy

(a) A defendant's motion for severance of offenses or defendants must be made before trial, except that a motion for severance may be made before or at the close of all the evidence if based upon a ground not previously known. Severance is waived if the motion is not made at the appropriate time.

(b) On any motion for severance of offenses or defendants, the court should order the prosecution to disclose, in camera or otherwise, any information which it intends to introduce as evidence and which would assist the court in ruling on the motion.

(c) If a defendant's pretrial motion for severance was overruled, the motion may be renewed on the same grounds before or at the close of all the evidence. Severance is waived by failure to renew the motion.

(d) Unless consented to by the defendant, or unless granted upon a finding of manifest necessity, a motion by the prosecuting attorney for severance of counts or defendants may be granted only prior to trial.

(e) If a motion for severance is granted during the trial and the motion was made or consented to by the defendant, the granting of the motion shall not bar a subsequent trial of that defendant on the offenses severed.

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Standard 13-3.4. Failure to prove grounds for joinder

If a defendant moves for severance of offenses or defendants at the conclusion of the prosecution's case or of all the evidence, and the evidence is not sufficient to support the allegations upon which the offenses were joined or upon which the moving defendant was joined for trial with the other defendant or defendants, the court should grant a severance if, in view of the insufficiency of the evidence, severance is deemed necessary to achieve a fair determination of the moving defendant's guilt or innocence of one or more offenses.

PART IV.

AUTHORITY OF THE COURT

Standard 13-4.1. Authority of court to order joinder on its own motion

The court may order joinder for trial of two or more offenses or of two or more defendants if neither party objects.

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Standard 13-4.2. Authority of court to order severance on its own motion

The court may order a severance of offenses or defendants on its own motion before trial if a severance could be obtained on motion of the prosecution or a defendant, or during trial if the severance is required by manifest necessity.

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PART V.

REQUIREMENT OF AN ADEQUATE RECORD

Standard 13-5.1. Making a record

Upon the disposition of any motion to join or to sever offenses or defendants, the court must make a record of the reasons for granting or denying the motion.

 

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