THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 16 - CHAPTER 300
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300.28 Severance Of Codefendants

    300.28.1 Denial Of Severance As Violation Of Federal Constitution

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 16 - CHAPTER 300

    An abuse of discretion occurs when the failure to sever leads to the admission at one defendant's trial of incriminating extrajudicial statements by a joint defendant that would otherwise be inadmissible in a separate trial.  (People v. Aranda (CA 1965) 63 C2d 518, 529-530 [47 CR 353]; Bruton v. United States (1968) 391 US 123 [88 SCt 1620; 20 LEd2d 476].) This is so because, if the codefendant takes the 5th Amendment at trial the defendant is denied his federal constitutional right to confrontation (6th and 14th Amendments) because there is no opportunity to cross-examine. (Ibid.)

    Additionally, fundamental concepts of fairness and due process may be violated if severance is denied and the defendant is convicted based on guilt by association. Joint trials significantly increase the opportunities for jury confusion and misunderstanding and create the likelihood of guilt by association. As Justice Jackson observed in his concurrence in Krulewitch v. U.S. (1949) 336 US 440 [93 SCt 790; 69 LEd2d 716], "[a] codefendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together." (Id., at 454 (Jackson, J., concurring); see also U.S. v. Mardian (D.C. Cir. 1976) 546 F2d 973, 977 ["The 'dangers of transference of guilt' are such that a court should use 'every safeguard to individualize each defendant in his relation to the mass.' ... [¶] Particularly where there is a great disparity in the weight of the evidence, strongly establishing the guilt of some defendants, the danger persists that the guilt will improperly 'rub off' on the others"] (quoting Kotteakos v. U.S. (1946) 328 US 750, 774, 773 [66 SCt 1239; 90 LEd 1557]; U.S. v. Tootick (9th Cir. 1991) 952 F2d 1078, 1080 [recognizing "some degree of bias inherent in joint trials]; U.S. v. Marszalkowski (11th Cir. 1982) 669 F2d 655, 660 ["inherent in every joint trial is, of necessity, some degree of bias"].)

    Thus, although "the mere fact that one codefendant is less culpable than the remaining codefendants is not alone sufficient grounds to establish a trial court abused its discretion in denying severance," (U.S. v. Emmons (10th Cir. 1994) 24 F3d 1210, 1218-19 [quoting U.S. v. Youngpeter (10th Cir. 1993) 986 F2d 349, 353]), the Supreme Court has recognized that disparate levels of culpability may nevertheless be an appropriate basis for the district court to exercise its discretion in favor of severance. (Zafiro v. U.S. (1993) 506 US 534, 539 [113 SCt 933; 122 LE2d 317]; see also e.g., U.S. v. Sampol (D.C. Cir. 1980) 636 F2d 621, 643 ["even before trial had commenced, the joint trial of defendants on charges growing out of the same underlying event ... but premised upon entirely disparate levels and allegations of culpability, foreshadowed confusion of the evidence and prejudice to [the defendant moving for severance"]; U.S. v. Mardian (D.C. Cir. 1976) 546 F2d 973, 977 [endorsing "the rule ... requiring severance when the evidence against one or more defendants is 'far more damaging' than the evidence against the moving party" (citation omitted)]; U.S. v. Kelly (2nd Cir. 1965) 349 F2d 720, 759.)

RESEARCH NOTES:

Severance. Wharton’s Criminal Procedure (13th Ed. 1989) § 283.

Severance Of Counts. Gurule "Complex Criminal Litigation" (1996) (Lexis) § 12-3(a).

Severance Of Defendants. Gurule "Complex Criminal Litigation" (1996) (Lexis) § 12-3(b).

See also Manual On Recurring Problems In Criminal Trials [4. Simultaneous Use Of Two Juries].