Arguing a Motion to Sever

In the world of criminal defense, a motion to sever is filed by defense attorneys to separate counts and/or codefendants into separate cases for trial.

In Missouri,  prosecutors can charge defendants with any number of offenses in separate counts of a multi-count case. Additionally, more than one defendant can be charged in the same case as “co-defendants”. This combination of multiple charges and/or co-defendants in the same case is referred to as “joinder”.

Criminal defense attorneys who file a Motion to Sever should argue severance on two grounds. First, they should argue the charges or c0-defendants have not been properly joined. Secondly, they should argue that the joinder of these offenses and co-defendants is overly prejudicial to a fair administration of justice.

Motion to Sever due to Improper Joinder

RSMo. 545.140 sets out when joinder is proper. The specific text is as follows, if you’re interested:

  1.  Notwithstanding supreme court rule 24.06, two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense.  Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

  2.  Notwithstanding Missouri supreme court rule 24.07, two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or infractions, or any combination thereof, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

When arguing that joinder of charges or defendants under the same indictment is improper, your criminal defense attorney should consider how closely related the alleged actions are in time, subject matter, and motivation. If charge B occurs several months after charge A and involves totally different co-defendants, victims or witnesses, a motion to sever might be successful the grounds of improper joinder.

RSMo. 545.140 also sets out that joinder is not proper when substantial prejudice would result. The same statute defines “substantial prejudice” as bias or discrimination against one or more defendants or the state which is actually existing or real and not one which is merely imaginary, illusionary or nominal.

Motion to Sever based on Prejudice

Under Supreme Court Rule 24.06, a defendant shall be ordered to be tried separately only if he files a written motion requesting a separate trial.  After hearing that motion, the court may order the defendant be tried separately if it finds a probability of prejudice exists.  Such types of prejudice specifically referenced in the rule are as follows:

(1) The defendant is subject to assessment of punishment by the jury and the defendant shows a probability of prejudice would result from this fact if he is not tried separately; or 

(2) There is, or may reasonably be expected to be, material and substantial evidence not admissible against the defendant that would be admissible against other defendants if a separate trial is not ordered; or 

(3) There is an out-of-court statement that is not admissible against the defendant that would be admissible against other defendants if a separate trial is not ordered unless the court finds the out-of-court statement can be limited by eliminating any reference to the defendant; or 

(4) A separate trial is necessary to a fair determination of whether the defendant is guilty.

Remember, this rule requires that the motion to sever be submitted to the court IN WRITING. This is not the type of motion that can be brought up orally by your criminal defense attorney on the morning of your trial. Also, you must allege that the joinder of your trial with the trial of other counts or other co-defendants will result in the “probability of prejudice”. In other words, failure to grant your motion to sever could result in an infringement of your right to a fair trial.

Why should I argue both improper joinder and probability of prejudice?

Your criminal defense lawyer should argue that the charges are improperly joined in the first place because joinder is reviewed on appeal as a matter of law, whereas severance is just reviewed for abuse of discretion. A trial court’s judgment under the “abuse of discretion” standard is next to impossible to over on appeal because the appellate court grants great deference to the ruling of the trial court. Thus, by arguing on grounds of improper joinder, you are preserving an issue for the appellate court to review under a legal bases easier to meet.

As always, if you have more questions or need more information about joinder, a motion to sever, or any other criminal defense questions, contact us any time for a free consultation. We’d be happy to sit down with you and discuss your case free of charge.