Chapter 1 - § 1.7 • JOINDER AND SEVERANCE

• Jurisdiction: Colorado

§ 1.7 • JOINDER AND SEVERANCE

§ 1.7.1—Summary

Both statute and rule require the joinder of offenses if the prosecuting attorney has knowledge of the offenses, and they were committed during the same criminal episode within the same judicial district. Failure to join such offenses will result in a bar to the prosecution of the non-joined offenses. A defendant who is aware of separate offenses fitting this description must inform the court. Failure to inform waives any claim based on the failure to join.

Either the defendant or the prosecution may seek separate trials of joined offenses if prejudice would result from a single trial of the offenses. The decision concerning separate trials is left to the sound discretion of the trial court and will not be disturbed unless the defendant shows actual prejudice.

While DUI prosecutions rarely involve more than one defendant, the issues relating to the joinder and severance of defendants are also discussed briefly below.

§ 1.7.2—Joinder of Offenses

Crim. P. 8(a)(1) and C.R.S. § 18-1-408(2) require that all offenses known to the prosecutor that arise from the same criminal episode be prosecuted by separate counts in a single prosecution. Any offense not so joined cannot be the basis of a subsequent prosecution. While double jeopardy considerations are the foundation for these provisions, the compulsory joinder requirements of the statute and rule extend further than the constitutional guarantees against double jeopardy and are broader than the concepts of collateral estoppel. Corr v. District Court, 661 P.2d 668 (Colo. 1983); People v. Taylor, 732 P.2d 1172 (Colo. 1987).

The purposes of compulsory joinder are to protect the accused from the harassment and oppressive effect of successive prosecutions based upon essentially the same conduct and to conserve judicial and legal resources. Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981); Ruth v. County Court, 595 P.2d 237 (Colo. 1979).

The elements that must be satisfied to bar a subsequent prosecution are:

1) The several offenses must be committed within the same judicial district;
2) There must be a prosecution against the offender;
3) There must be prosecutorial knowledge of the several offenses at the commencement of the prosecution;
4) The several offenses must arise from the same criminal episode; and
5) The offender previously must have been subjected to a single prosecution.

People v. Herr, 868 P.2d 1121, 1125 (Colo. App. 1993). For a further discussion of...