The idea of putting two or more defendants on trial together is that the court system will be able to dispose of two prosecutions with one jury and one proceeding.  It is often referred to as the interest of "judicial economy. This may work in some cases, but there are many instances where it creates prejudice to one or all defendants to try multiple defendants at once. This article will discuss when criminal defendants should be tried separately and why it should be examined closely and discussed between attorney and client.

Most of us watched the tragic trial of the three men accused in the death of Ahmaud Arbery. While most commentators zeroed in other aspects of the case; White Privilege, injudicious comments by defense counsel, and the absurd performance by one of the defendants on cross-examination, experienced trial lawyers all asked, "What are these guys doing in the same jury trial?"

The courts always prefer judicial economy, so we begin with the defendants scheduled for trial together. To break up that presumption, defense counsel must decide to file a "Motion for Severance of Defendants." (It has different names in different jurisdictions.).

So, how do we decide whether co-defendants should be tried together?

First, do they have "antagonistic defenses?" In other words, can their defenses be inconsistent with each other? If the answer is yes, then the defendants should be tried separately. For example, in a recent case I had, one of the defendants claimed he was at home asleep during the time of the crime. His co-defendant claimed that my client was the mastermind behind the whole thing. Fingerpointing was inevitable.

Next, Did they talk to law enforcement before or after their arrest. As a rule of thumb, the narrations of arrestees will never match perfectly. And we know those narrations will be pointed out to the jury.

Third, Is there physical evidence found near one defendant and none on or near the other? This includes DNA, fingerprints, blood spatter, or any other type of physical evidence linking one defendant to the scene and another not. If there is such evidence, it makes more sense to try them separately so that "guilt by association" cannot be imputed.

Fourth, What are the criminal histories of the Defendants? Are there violent offenses on one defendant's record and nonviolent or even no offenses on the other? If there is a significant difference in their criminal histories, it avoids prejudice to ask the court to try them separately.

Fifth, What are the defenses of the Defendants? If one claims alibi and the other's defense is he just happened to be standing nearby when the alibi-claiming defendant committed the crime, it would be prejudicial to the alibi Defendant to try them together.

Sixth, Is there a reasonable possibility that either defendant will testify? It creates disharmony in the trial if one elects his right not to speak and the other chooses to testify.

Finally, Is there any possibility that evidence unfavorable to only one defendant can be introduced? No matter what the jury is instructed, the fallout from such evidence could be devastating to the defendant not related to that evidence.

These are just a few examples of when criminal defendants should be tried separately. Other factors can come into play, but these seven reasons provide a strong argument for severing defendants whenever possible. Trying two defendants together when their defenses conflict creates an aura of prejudice. This is a difficult decision for any defense lawyer but an impactful one, as we saw in Georgia.  Every lawyer must "leave tracks" that he or she considered severance and discussed the decision with his client.

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