Joint criminal trials with multiple juries: why they are used and suggested ways to implement them.

• Author: Hersh, Adam

Why They Are Used and Suggested Ways to Implement Them

When used properly, multiple jury trials can save large amounts of time and money while protecting the rights of defendants.

In multidefendant criminal cases, one jury is often insufficient to resolve all defendants' cases. The most common scenario is when the majority of evidence is admissible against each defendant, but one defendant has made a confession that also implicates the other defendants. While the out-of-court statement may be admissible against the confessing defendant, it is inadmissible against codefendants having the same jury as the declarant.[1]

Traditionally, a prosecutor in this type of multidefendant case may elect 1) a joint trial at which evidence of the statement is not admitted; 2) a joint trial at which evidence of the statement will be admitted after all references to the nondeclarant defendant have been deleted, provided the court determines that admission of the evidence with deletions will not prejudice the nondeclarant defendant; or 3) severance of the nondeclarant's case from the confessing defendant's case.[2]

While the first two options preserve a single trial with one jury, the loss or redaction of a defendant's statement can prevent full presentation of all relevant evidence against that defendant. The third option, severance, preserves a defendant's statement but can result in massive duplication of effort because the substantially same case is presented repeatedly before different juries. This option becomes especially problematic in cases with recalcitrant, hard-to-locate or petrified witnesses, as well as in sexual battery and child abuse cases where the trauma of successive testimony about painful events can result in the victim's inability to testify.[3]

To counter these concerns, a trend has emerged for multiple juries in a joint trial. That is, multiple defendants are tried simultaneously at one trial by separate juries, with each jury hearing evidence admissible as to that jury's defendant or defendants. The procedure essentially is a grant of severance, but within a framework permitting single presentation of overlapping evidence.[4] This article discusses the background, Florida experience, and application of multiple jury trials, and concludes that, with cooperation from all participants, multiple jury trials are an effective use of judicial resources that safeguard the rights of the accused.

Background

Federal appellate courts took the lead in considering the use of multiple jury trials. In United States v. Sidman, 470 F. 2d 1158 (9th Cir. 1972), cert. denied, 409 U.S. 1127 (1973),[5] a decision affirming a bank robbery conviction, the Ninth Circuit Court of Appeals concluded the multiple jury trial system did not violate a defendant's rights under the Sixth Amendment, Due Process Clause of the 14th Amendment, or Federal Rules of Criminal Procedure. Similarly, federal courts, when reviewing habeas corpus petitions of state court defendants, have refused to vacate convictions because multiple jury trials were used.[6]

In addition to federal courts, every state appellate court has upheld the multiple jury procedure against constitutional challenges.[7] In the process, however, some courts have cautioned against the widespread use of multiple jury trials and only reluctantly approved them.[8] Reversal of a multiple jury trial conviction has not occurred based on generalized grievances against the procedure, but rather when error in its application is identified.[9]

Although there is no specific statutory provision for multiple jury trials, courts have identified several sources for the power. The first is a trial court's broad discretion to execute rules of severance. In United States v. Rowan, 518 F. 2d 685 (6th Cir.), cert. denied, 423 U.S. 949 (1975), for example, a defendant in a multiparty bank robbery case had one jury render his verdict while two codefendants were tried at the same time by a second jury. On appeal, the defendant argued that permitting his jury to consider evidence relating solely to the guilt of the codefendants denied his right to a fair trial. This position was rejected in part on the trial court's wide authority to implement Rule 14 of the Federal Rules of Criminal Procedure regarding severance.[10] Other courts have indicated that Rule 57 of the Federal Rules of Criminal Procedure grants federal courts broad power to implement a multiple jury trial.[11]' Further, state courts may institute the procedure based on their common law authority.[12] In Florida, a state court's "very broad discretion in the procedural conduct of trials" has been used as a basis for approving multiple jury trials.[13]

Florida's Experience with Multiple Jury Trials

In Feeney v. State, 359 So. 2d 569 (Fla. 1st DCA 1978), Florida became one of the first states to endorse multiple juries after the Ninth Circuit's Sidman decision.[14] Feeney was convicted of two counts of robbery with a firearm after his codefendant, tried simultaneously before a separate jury, was acquitted. Noting that the overwhelming majority of evidence was admissible against both defendants, the First District Court of Appeal stated:

The law is, and must be, dynamic and not static. Procedural law is no exception. Experience comes about as a result of experiment. A trial judge has very broad discretion in the procedural conduct of trials. In the absence of demonstrated prejudice we are loathe to disapprove the novel procedure employed sub justice.[15]

Similar to federal and other state court decisions, Feeney made...