§ 8.7 Joinder of Charges and Defendants

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 8.7 JOINDER OF CHARGES AND DEFENDANTS

§ 8.7-1 Jointly Indicted Defendants

"Jointly charged defendants shall be tried jointly unless the court concludes before trial that it is clearly inappropriate to do so and orders that a defendant be tried separately." ORS 136.060(1). When determining whether a joint trial is appropriate, the trial court must strongly consider the victim's interest in a joint trial. ORS 136.060(1).

In examining whether joinder is "clearly inappropriate," cases have focused on whether joinder violates a pertinent statute or comes in conflict with the state or federal constitution. The likelihood of substantial prejudice to the defendant, by itself, is insufficient. State v. Turner, 153 Or App 66, 72-73, 956 P2d 215, rev den, 327 Or 317 (1998). Appellate court review for abuse of discretion in this area "should center on the circumstances as they appeared at the time the motion was ruled on." State v. Quintero, 110 Or App 247, 252 n 6, 823 P2d 981 (1991), adh'd to as clarified on recons, 114 Or App 142, 834 P2d 496, rev den, 314 Or 392 (1992); State v. Tyson, 72 Or App 140, 143 n 3, 694 P2d 1003, rev den, 299 Or 37 (1985).

§ 8.7-2 Severance of Joint Trials

Severance is not required per se when codefendants assert mutually exclusive defenses. State v. Turner, 153 Or App 66, 73-74, 956 P2d 215, rev den, 327 Or 317 (1998). In addition, the mere possibility that one codefendant would be prejudiced by the introduction of evidence regarding the other codefendant's criminal activities does not compel severance. State v. Coleman, 130 Or App 656, 661, 883 P2d 266 (1994), rev den, 320 Or 569 (1995). The possibility of prejudice exists in any joint trial, and "[u]nder ORS 136.060, jointly-charged defendants must be tried jointly unless the trial court concludes that it is 'clearly inappropriate' to do so." Coleman, 130 Or App at 661.

If a defendant moves to sever the trial from that of a codefendant, the trial court may require the production of "any statements or confessions made by any defendant" that the state intends to introduce at trial. ORS 136.060(2). A major consideration is the possibility that a nontestifying defendant's inculpatory statements may be admitted into evidence, because the admissions of these statements might violate a defendant's constitutional right of confrontation. Sometimes confessions may be redacted to solve any constitutional problem. Richardson v. Marsh, 481 US 200, 206-11, 107 S Ct 1702, 95 L Ed 2d 176 (1987); State v. Umphrey, 100 Or App 433, 438-39, 786 P2d 1279, rev den, 309 Or 698 (1990). Other times, such as when the confession directly implicates the defendant, severance is necessary. Cruz v. New York, 481 US 186, 107 S Ct 1714, 95 L Ed 2d 162 (1987); Bruton v. United States, 391 US 123, 88 S Ct 1620, 20 L Ed 2d 476 (1968); State v. Lavadores, 230 Or App 163, 174-75, 214 P3d 86 (2009) (the admission of a nontestifying codefendant's redacted statements violated the defendant's right to confrontation because the redactions, which used terms like "we all," "others," and "they," along with the use of proper names and nicknames for the other individuals except the defendant, alerted the jury to the fact that the defendant's name had been deleted); State v. Ennis, 212 Or App 240, 158 P3d 510, rev den, 343 Or 223 (2007) (the admission of a nontestifying codefendant's redacted testimony...