If any of the defendants would be prejudiced by a joinder of defendants or offenses then the defendants may file a motion for severance. A motion for severance may be filed with respect to the defendants and/or the offenses charged in the indictments. It is within the trial court’s discretion to grant or deny the motion for severance.
Severance of Defendants
When two or more defendants have been joined in a single indictment, one or more of the defendants may file a motion for severance. The defendant requesting the severance must show that valid reasons exist supporting the severance because in the interest of judicial economy it is more logical to join defendants for the same offenses that arose from the same transactions or occurrences. The defendant must show that a specific right will be violated by a joint trial or that a jury would be unable to make a reliable determination.
If the trial court denies the severance motion the trial court’s decision will only be overturned if it is shown that an abuse of discretion occurred. The abuse of discretion must have taken place at the time that the motion was ruled upon based upon the facts known at the time of the ruling.
Severance of Offenses
The defendant may file a motion seeking to sever the offenses that he is charged with in an indictment or information. The defendant must show a valid basis supporting his request to sever. The defendant must argue that he will be unduly prejudiced by the joinder of offenses. In the interest of judicial economy, joinder of similar offenses is looked upon favorably.
Granting Severance Motions
The trial court may grant the severance motion if the defendant or defendants presented sufficient evidence to support their contention that severance was required. The following represent some reasons that the trial court may accept in granting a severance motion:
- The defendant’s right to confrontation as afforded under the Sixth Amendment to the United States Constitution may be violated.
- The defendant’s right to present evidence as afforded under the Sixth Amendment to the United States Constitution may be violated.
- The other evidence presented in the case against the co-defendants may unduly prejudice the defendant seeking the severance.
The defendant may also seek a severance by claiming that his co-defendant would offer exculpatory testimony at a separate trial. In evaluating such a claim the trial court will analyze the following:
- The sufficiency of the evidence that the co-defendant would testify to at a severed trial.
- The degree which the exculpatory testimony would affect the proceedings.
- The effect on judicial economy.
- The likelihood that the testimony would be subject to impeachment.
Severance is also required if any of the defendants seek to present an antagonistic defense. This type of defense is one that requires the jury to believe the core testimony of one defendant and disbelieve the testimony of the co-defendant.
Waiver of Severance Request
Under the federal rules of criminal procedure, it is required that any request for a severance of offenses or defendants be made prior to trial. If the defendant seeking the severance fails to raise the issue prior to trial, the severance issue is deemed waived. The trial court may permit the defendant to file his motion for severance, if good cause is shown.