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Motion to Sever

What is a Motion to Sever in California?

In the State of California, co-defendants charged with the same crime are tried together by default unless the court determines otherwise defined under Penal Code 1098 PC.

If you are a co-defendant in a criminal case, petitioning the court to separate the trials can often result in more lenient penalties or dismissal of the case, especially if your alleged participation was less than that of the other defendant(s), if you're a victim of mistaken identity, etc.

In legal terms, a motion to sever is a formal request to the court to separate a defendant's charges or cases from those of other defendants in the same crime or series of related crimes.

Motion to Sever in California
A motion to sever means to ask the court to separate a defendant from other people in the same case.

PC 1098 says, “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials. In ordering separate trials, the court, at its discretion, may order a separate trial as to one or more defendants and a joint trial as to the others or may order any number of the defendants to be tried at one trial and any number of the others at different trials, or may order a separate trial for each defendant; provided, that where two or more persons can be jointly tried, the fact that separate accusatory pleadings were filed shall not prevent their joint trial.”

Thus, a motion to sever is a request by the prosecutor or defense lawyer asking the court to have separate jury trials on the different charges. It can also ask the court to sever the trials of co-defendants, resulting in defendants being tried separately rather than together.

The defendant frequently requests a motion to sever so that the jury does not hear all the evidence related to all the charges in the same trial. The court might grant the motion to sever if it appears that anyone may be prejudiced by offenses or defendants being tried together.

The prosecution and the defense have the right to sever two or more charges when the crimes are unrelated to each other but have been joined together for a trial.

When dealing with related offenses, the court will grant a severance of those charges if they believe the evidence of each crime could prejudice the jury, and severance is necessary for a fair determination of the defendant's innocence or guilt.

The court determines the complexity of the evidence and makes their judgment on whether or not they believe the trier of fact can distinguish the evidence and apply the law to each offense. Let's review this topic in more detail below.

Understanding the Motion to Sever

The motion to sever is based on the concept of ensuring a fair trial. It is typically requested when an attorney believes that their strategy will be hindered by the presence of co-defendants in the same trial.

This may be due to conflicting defenses, prejudicial evidence, or the possibility of unfavorable influence on the jury due to other defendants' actions.

A motion to sever is not a right but a privilege granted at the court's discretion. The judge weighs the potential prejudice against the defendant against the interests of judicial economy and efficiency.

Who May File a Motion to Sever?

A motion to sever may be filed either by the prosecution or the defense. In most cases, the defense files the motion because the defendant stands to gain more from separating the trials than the prosecution.

Generally, it is best for a prosecutor to group multiple defendants accused of committing the same or related offenses. However, there may be times when the prosecution feels that their case(s) would benefit from being heard separately.

For example, if one co-defendant is more likely to evoke sympathy than the other, the jury may be more likely to acquit than if the two were tried separately.

What Are the Common Reasons for Requesting a Motion to Sever?

Defense attorneys may file a motion to sever for various strategic reasons. Three potential scenarios that might prompt such an action:

  1. Conflict of Interests: If co-defendants have conflicting defenses, it may be in the best interest of one or both parties to sever the cases. This allows each defendant to present their case without the risk of contradiction or undermining by the other. This motion is commonly requested if one co-defendant intends to testify against the other as part of their defense.
  2. Prejudicial Association: An attorney might file a motion to sever if they believe their client's case could be unjustly prejudiced by associating with a co-defendant with more damning evidence against them. In other words, the association hinders the defendant from getting a fair trial. The goal is to prevent jury bias that might arise from this association.
  3. Inadmissible Evidence: In a joint trial, evidence admissible against one defendant may not be admissible against another. A motion to sever can prevent such evidence from being presented to the jury, reducing the risk of prejudice against the defendant.

What Are Some Examples?

EXAMPLE 1: John and Jim are accused of jointly committing a robbery. John's defense strategy is to claim they were not present at the scene, while Jim plans to argue that John forced them to participate in the crime under duress.

Common Reasons for Requesting a Motion to Sever
There are several strategic reasons a criminal defense lawyer will file a motion to sever.

These defenses contradict each other, potentially undermining each other's credibility before the jury. By filing a motion to sever, each defendant can present their defense without interference from the other, thereby maintaining the integrity of their individual arguments.

EXAMPLE 2: Jenny and Sam are charged with conspiracy to commit a cybercrime. Evidence against Jenny is substantial, including digital records, eyewitness testimonies, and forensic proof.

In contrast, the evidence against Sam is less compelling, primarily based on his association with Jenny. In a joint trial, the weighty evidence against Jenny could unduly influence the jury's perception of Sam. Filing a motion to sever would allow Sam to have a separate trial, preventing potential prejudice that could arise from the association with Jenny.

What Are the Possible Outcomes of a Motion to Sever?

If a motion to sever is granted, each defendant will have a separate trial. This allows each individual to present their case independently, without the influence of other defendants' actions or evidence.

However, if the motion is denied, the trial will proceed with all defendants together. This does not necessarily mean a negative outcome for the defendant, but it does require careful strategizing and preparation to minimize potential prejudice.

If you are involved in a criminal case with multiple defendants, contact our law firm to review the case details and legal options. Eisner Gorin LLP has offices in Los Angeles, CA.

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