Appendix E -3 Prosecution's Response to a Motion for Severance

• Library: How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.)

APPENDIX E-3 Prosecution's Response to a Motion for Severance

Defendant seeks severance from his codefendants, claiming that he will suffer prejudice from a spillover of evidence, because of a disparity in the weight of evidence to be introduced against them, because of the possibility of conflicting defenses, because of the potential for exculpatory codefendant testimony in a severed trial, and because of the danger of jury confusion. These contentions are without merit under the applicable law and the facts of this case.

(1) The General Law

Under Federal Rule of Criminal Procedure 8(b), joinder of both offenses and defendants is proper when the defendants are alleged to have participated "in the same series of acts or transactions connected together or constituting parts of a common scheme or plan." Co-conspirators should be tried together, and the Rule is to be liberally construed in favor of joinder. United States v. Davis, 882 F.2d 1334, 1340 (8th Cir. 1989), cert. denied, 494 U.S. 1027 (1990).¹ Joint trials of conspiracy defendants are favored for reasons of judicial economy, and a denial of severance is reversible only when great prejudice and an abuse of discretion are shown. Opper v. United States, 348 U.S. 84, 94 (1954); United States v. Payne, 923 F.2d 595, 597 (8th Cir.), cert. denied, 501 U.S. 1219 (1991); United States v. Robinson, 774 F.2d 261, 266 (8th Cir. 1985); United States v. Reed, 733 F.2d 492, 508 (8th Cir. 1984); United States v. Reeves, 674 F.2d 739, 744 (8th Cir. 1982).

Whether a joinder of defendants is proper is generally to be determined from the face of the indictment. United States v. Grey Bear, 863 F.2d 572, 581 (8th Cir. 1988) (en banc); United States v. Bruun, 809 F.2d 397, 406 (7th Cir. 1987). As the Indictment in this case set forth on its face a single conspiracy to distribute cocaine, the defendants are properly joined for trial.

(2) Spillover Evidence and Jury Confusion

While Federal Rule of Criminal Procedure 14 does permit severance where joinder will result in unfair prejudice, "whether or not prejudice occurs depends primarily on whether the jury could compartmentalize the evidence against each defendant." United States v. Nevils, 897 F.2d 300 (8th Cir.), cert. denied, 498 U.S. 844 (1990). The roles played by the various defendants in this case, as described in the Indictment, are sufficiently distinct to preclude prejudice from spillover and to prevent jury confusion. The standard instructions to the jury to...