Chapter 11 Trial Proceedings Pre-Jury Selection

• Jurisdiction: United States

Chapter 11 Trial Proceedings Pre-Jury Selection

Bifurcation—Severance of Parties (See Chapter 2)

A complaint, information, or indictment can list a single defendant or multiple defendants to a crime. The document can be changed to add or join a defendant to an existing charging document, or to split up or sever parties on an existing document. Cal. Penal Code §1098 states: "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court orders separate trials." The judge has discretion to split up the defendants and order separate trials in the interests of justice. There is no right to have separate trials. But, if an Aranda/Bruton issue arises, the judge often considers separate trials as an appropriate remedy.

Bifurcation—Severance of Counts (See Chapter 2)

A complaint, information, or indictment can list a single defendant or multiple defendants to a crime. Cal. Penal Code §954 states: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses under separate counts." In addition, if crimes are charged in separate charging documents, and the counts are connected in their commission or are two or more different offenses of the same class of crimes, a court may order the documents consolidated in the interests of efficiency.

A court has discretion to consolidate or sever counts based on "substantial prejudice" to defendant. The court may consider:

• Whether evidence of the crimes to be jointly tried would not be cross-admissible in separate trials;
• Whether certain charges are unusually likely to inflame the jury against the defendant;
• The spillover effect of weak case joined with another weak or strong case and how it will affect overall outcome of charges; and
• Whether any charge carries death penalty or joinder turns a matter into capital case.

Bifurcation—Enhancements and Priors

Courts can bifurcate issues and hold separate trials on bifurcated issues. The defense often requests the court to sever a gang enhancement to prevent the jury from hearing gang-related evidence when deciding the underlying main charge(s) in the case. The defense should request the court to sever any prior convictions (which increase punishment) to prevent the jury from hearing about a defendant's prior criminal conduct, for...