Co-Defendants and Separate Trials

Co-Defendant’s in Colorado criminal cases many times -as a matter of strategy and tactics do NOT want to be tried together. One reason may be that in a joint trial the more guilty of the two one with perhaps a much worse criminal history tends to “shade” the case against the less guilty of the two.. In this situation the former defendant will seek a severance of the trials this article addresses that issue.

The Rule in Colorado is that severance is to be granted as a matter of right if there is material evidence admissible against one but not all of the parties and admission of that evidence is prejudicial to the party against whom the evidence is not admissible.

Even if the evidence at issue would be inadmissible against the defendant seeking severance, severance is not mandatory unless it is also shown that the evidence is prejudicial to the moving defendant.

To establish prejudice for the purposes of § 16-7-101, the defendant must show that the evidence was so inherently prejudicial that the jury could not have limited its use to a proper purpose.

Here is The Specific Colorado Law on Severance (each section is “broken out” so that it is easier to understand):

When two or more defendants are jointly indicted or informed against for any offense and there is material evidence, not relating to reputation, which is admissible against one or some of them but which is not admissible against all of them if they are tried separately and which is prejudicial to those against whom it is not admissible, those against whom such evidence is admissible shall be tried separately upon motion of any of those against whom the evidence is not admissible. In all other cases, defendants jointly prosecuted shall be tried separately or jointly in the discretion of the court.

This section is mandatory when it appears that a defendant would be prejudiced on a joint trial by the admission of evidence which would not be admissible as against him, but which would be competent as against his co-defendant.

A defendant is entitled to severance of trial as a matter of right if there is evidence that is admissible against one but not all of the parties and if the evidence is prejudicial to the defendant against whom the evidence is not admissible.

The supreme court has interpreted this section to mean, in the mandatory severance setting, that the trial court must determine whether the admitted evidence was so inherently prejudicial that the jury could not have limited its use to its proper purpose.

The trial court’s decision will be upheld on appeal absent a showing of an abuse of discretion and actual prejudice to the moving party. Severance is to be based upon a finding of prejudice rather than simply the differences which are incidental to any trial of more than one defendant.

Where two defendants are indicted jointly, and there is evidence not relating to reputation, admissible as against one of them, but inadmissible as against the other, the one against whom such evidence is inadmissible is entitled to a separate trial as of right under this section.

BUT where the evidence is admissible against all defendants, severance need not be allowed.

And such this as evidence of reputation of another defendant is expressly excluded as a ground for severance by this section.

When an out-of-court statement of a co-defendant does not make reference to the co-defendant, severance should be granted only when it is necessary to promote a fair determination of the guilt or innocence of one or more defendants.

The court should make this determination by considering, among other factors, whether, in view of the number of offenses and defendants charged and the complexity of the evidence offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense and as to each defendant.

If a defendant is not entitled to a severance as a matter of right, a motion for severance is addressed to the sound discretion of the trial court, whose decision will be affirmed absent a showing of abuse of discretion and actual prejudice to the moving party.

The factors to be considered in determining whether denial of a severance constitutes an abuse of discretion include:

1. whether the number of defendants or the complexity of evidence is such that the jury will confuse the evidence and the law applicable to each defendant;
2. whether, despite admonitory instructions, evidence admissible against one defendant will improperly be considered against another; and
3. whether the defenses are antagonistic.

Defenses are not antagonistic where they do not specifically contradict each other. Therefore where joint defendants merely deny participation in the crime and do not present evidence or testimony that the other defendant was solely responsible, arguments made by the lawyers that suggest that the other defendant was responsible for the crime does NOT establish the existence of antagonistic defenses.

Please call our law firm if you have questions about.

H. Michael Steinberg has been a Colorado criminal law specialist attorney for 42 years (as of 2012). For the First 13 years of his career, he was an Arapahoe Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.

In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277

If you have questions about Law of Severance in Colorado in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and also to provide quality legal representation to those charged in Colorado adult and juvenile criminal matters.

In the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg provides quality legal representation to those charged in Colorado adult and juvenile criminal matters as regards the Law of Severance in Colorado.