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June 7, 2006

A reminder from the 9th Circuit of one of the pitfalls for the defense attorney representing a defendant charged with multiple offenses: a motion for severance is waived if you don't renew it at the close of the state's case and the close of all the evidence. This is in keeping with the law in this district and, in fact, with virtually every district in Ohio.

I got nailed on this several years ago.


I'd been appointed to handle the appeal of a defendant charged with three counts of felonious assault for trying to run over some guys in a parking lot, and a domestic violence involving his girlfriend that had allegedly occurred a few weeks later. On the day of trial, the prosecutor announced that the state was ready to go forward, and would first try the felonious assault case, and then proceed on the domestic violence charge. To everyone's surprise, the judge announced that the two cases would be tried at the same time. On appeal, the court admitted that it was "at a loss to see how the trial court could have found the offenses underlying these two indictments similar in character so as to justify their joinder," but nonetheless affirmed because the defense counsel hadn't renewed the motions at the close of the state's case and the close of all the evidence.

I did some digging on this, and this appears to be one of those rules that courts always cite without ever giving any explanation of why it exists. In fact, if you trace it back far enough, you'll find that the earlier Ohio court decisions on this are based on Federal court decisions. But there's a hitch: most of those Federal decisions involve cases of severance of defendants, not charges.

There's a big difference between the two situations. Let's say you think it's prejudicial for your client to be tried with a co-defendant. At the close of the state's case, or even after all the evidence is in, renewing the motion for severance does allow the court a meaningful remedy: if it feels that your client has been prejudiced, it can grant the motion to sever. True, your case will have to be tried again, but it's not a total loss: the jury can still determine the co-defendant's case. A prejudicial joinder of offenses, however, is a completely different ball game, because there's no remedy other than starting all over: the court can't simply tell the jury to disregard all the evidence on the improperly joined offense.

In fact, the primary reason for permitting joinder - economy of judicial resources - is different, depending upon whether you're talking about defendants or charges. Joining defendants unquestionably saves judicial resources: the alternative is presenting the same evidence to two different juries. Joining charges, however, doesn't accomplish that: there's no savings in presenting three witnesses on Case A and three witnesses on Case B to the same jury, or presenting the three witnesses on Case A to one jury and the three witnesses on Case B to a different one. The only substantial savings of time that accrues from trying offenses together is the time spent on voir dire of the jury - you only have to do it once, instead of twice.

This isn't to suggest that severance of offenses should be freely granted; it's still up to the defendant to show prejudice, and there's no reason to sever if, for example, the same evidence could come in as "other acts" under Evidence Rule 404(B), as the court notes here. But requiring defendants to renew motions for severance of offenses at the close of the state's case and of all the evidence doesn't make much more sense than requiring them to renew their evidentiary objections at that point.

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