Motions for Severance (or Consolidation) of Counts or Respondents

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 383-395

383

CHAPTER 18

MOTIONS FOR

SEVER A NCE OR

CONSOLIDATION

OF COUNTS OR

RESPONDENTS

PART A. MOTIONS CHALLENGING THE JOINDER

OF COUNTS OR SEEKING CONSOLIDATION

OF COUNTS

§ 18.01 Introduction: The Problem of Joined

Counts; Overview of the Possible Remedies

State statutes, rules of court, and caselaw typically permit the prosecution to include in

a single charging paper all charges arising from t he same event or episode (for example,

housebreaking, larceny, and receiving stolen property). Most juri sdictions further autho-

rize the prosecutor to include in the Petition charges arising out of separate events or

episodes that are (depending upon variances in local rules) (a) part of the same transac-

tion or series of transact ions, (b) part of a “common plan” or “common scheme” by the

respondent, or (c) legally the same or similar (for example, housebreaking on May 5 and

housebreaking on June 12).

In cases in wh ich all the charges against the respondent ari se from the same event or

episode (such as the ordinary set of housebreak ing-larceny-receiving charges based on a

single break-in), the joinder results in litt le prejudice to the respondent, and thus t here is

little reason to seek severance. In any event, most courts will compel a joint trial in this

situation, whether the respondent wants one or not.

However, in cases in which the prosecution has joi ned charges arising from different

episodes or transactions (on the basis of the fac tual connection between the tra nsactions

or the legal similarity of the charges), the respondent faces a significa nt risk that the