Indicted With Co-Defendants in New Jersey? Motions to Sever a Joint Trial

Being charged in the same indictment as several other defendants can create a serious risk of guilt by association.

One defendant may be accused of committing a violent offense. Another may allegedly have possessed the weapon. A third person may be charged only with helping someone after the crime had already occurred.

Even though those defendants face different charges and are accused of very different conduct, the State may attempt to try all of them before the same jury.

That can expose a less culpable defendant to weeks of damaging testimony, graphic evidence, incriminating statements and accusations that would never be presented if that person were tried separately.

New Jersey law permits defendants to request separate trials when a joint proceeding would cause unfair prejudice. These applications are generally made through a motion to sever under New Jersey Court Rule 3:15-2.

Why Are Multiple Defendants Charged in the Same Indictment?

New Jersey Court Rule 3:7-7 permits two or more defendants to be charged in the same indictment when they are alleged to have participated in the same act, transaction or connected series of acts or transactions.

The defendants do not have to be named in every count. One indictment can therefore contain numerous serious charges against several people while naming another defendant in only one limited count.

For example, one indictment might contain:

• Murder and aggravated-manslaughter charges against one defendant;
• Weapons charges against another defendant;
• Conspiracy charges against several defendants;
• Evidence-tampering allegations against another person; and
• A single hindering charge against someone accused of assisting only after the principal crime occurred.

The fact that these charges appear in the same indictment does not necessarily mean that every defendant had the same intent, participated in the same conduct or possessed the same level of criminal responsibility.

Why Does the State Prefer a Joint Trial?

New Jersey courts generally prefer joint trials when much of the same evidence and testimony will be used against several defendants.

A single trial can:

• Avoid presenting the same witnesses repeatedly;
• Reduce the burden on victims;
• Preserve court resources;
• Decrease the risk of inconsistent verdicts; and
• Help the jury assess the defendants’ relative responsibility.

However, judicial efficiency cannot override a defendant’s right to a fundamentally fair trial. When a joint proceeding would create unfair prejudice, Rule 3:15-2(b) permits the court to order separate trials of particular counts, sever one or more defendants or provide other appropriate relief.

Why Can a Joint Trial Be Dangerous?

The fundamental danger is that the jury may stop asking:

What did this particular defendant do?

and begin asking:

What did this group of people do?

A judge will ordinarily instruct the jurors to consider each defendant and each count separately. Nevertheless, some evidence is so extensive, inflammatory or closely connected to a co-defendant’s defense that it may be difficult for jurors to realistically compartmentalize it.

Guilt by association

When several people sit together at the defense table, jurors may consciously or subconsciously view them as members of a single criminal group.

That danger becomes especially serious when one person is accused of a shocking or violent crime while another is charged with substantially less serious conduct.

New Jersey courts have held that the ordinary danger of association inherent in every joint trial is not, by itself, sufficient to require severance. A successful motion must identify specific prejudice beyond the general concern that the client will look bad because of the other defendants.

Evidence against one defendant may affect everyone

A joint jury may hear evidence concerning:

• A murder weapon;
• Autopsy photographs;
• Surveillance recordings;
• Prior threats;
• Gang affiliation;
• Other criminal conduct;
• Flight from police;
• Incriminating text messages;
• A co-defendant’s statements; or
• Graphic testimony from victims and witnesses.

Some of that evidence may be admissible against only one defendant. It might never be heard in a separate trial involving a person charged with a limited offense occurring later.

The defense should identify each item of evidence and explain:

1. Which defendant it concerns;
2. Whether it would be admissible against the client in a separate trial;
3. Why it is especially inflammatory; and
4. Why a jury instruction would not adequately eliminate the prejudice.

The evidence against one defendant may be much stronger

A significant disparity in evidence does not automatically require separate trials.

One defendant may have confessed. Another may have been identified on video. A third may be connected to the case only through disputed circumstantial evidence.

The defense must explain why the difference does more than merely make another defendant appear more culpable. The question is whether the structure of the joint trial prevents the jury from fairly evaluating the client’s individual charge.

What Is a Motion to Sever?

A motion to sever asks the court to separate:

• One defendant from the other defendants;
• Particular counts from the rest of the indictment;
• A co-defendant’s case from the client’s trial; or
• Particular evidence or statements that cannot fairly be presented in a joint proceeding.

Rule 3:15-2(b) authorizes the court to grant severance or other relief when a defendant or the State would be prejudiced by otherwise permissible joinder.

Whether to grant severance is generally committed to the trial court’s discretion. The court balances the risk of prejudice against the State’s and judiciary’s interest in conducting one efficient trial. New Jersey appellate courts continue to apply that standard.

It is not enough to argue that the defendant would have a better chance of winning alone. The motion must demonstrate a genuine and substantial risk of an unfair trial.

When May New Jersey Courts Sever Co-Defendants?

Several circumstances can support a motion to sever.

A Co-Defendant Made a Statement Implicating the Client

One of the most serious problems arises when a co-defendant gave police a statement, confession or admission that refers to the client.

The co-defendant may refuse to testify at trial by invoking the privilege against self-incrimination. If the State nevertheless introduces that person’s out-of-court statement, the client may have no opportunity to cross-examine the person who made the accusation.

Rule 3:15-2(a) specifically addresses this situation. When the prosecutor intends to introduce one defendant’s statement involving another defendant, the court must determine before trial whether the references to the other defendant can be effectively removed.

When an effective deletion cannot be made without harming the rights of either defendant, separate trials may be required.

Simply replacing a defendant’s name with an obvious phrase such as “the other person” may not solve the problem when the surrounding evidence makes the person’s identity unmistakable.

Defense counsel should obtain and analyze every:

• Recorded interrogation;
• Written statement;
• Body-camera admission;
• Jail call;
• Text message;
• Social-media communication; and
• Statement attributed to a co-defendant.

The motion should identify the exact language that creates the prejudice and explain why redaction cannot cure it.

The Defendants Have Mutually Antagonistic Defenses

Defendants do not receive separate trials merely because their defenses are inconsistent.

Severance becomes more appropriate when the defenses are antagonistic at their core, mutually exclusive or irreconcilable.

For example:

• Defendant A argues that Defendant B was the shooter.
• Defendant B argues that Defendant A was the shooter.
• Acceptance of either defense necessarily requires the jury to reject the other.
• One defendant’s complete defense depends upon proving the other defendant guilty.

New Jersey courts distinguish those circumstances from cases in which each defendant merely denies participating or attempts to raise reasonable doubt about the State’s evidence.

Separate trials are generally required only when the defenses are so fundamentally incompatible that the jury cannot logically accept both.

The Co-Defendant Becomes a Second Prosecutor

In a joint trial, the client may be attacked by more than the State.

A co-defendant’s attorney may attempt to protect that client by:

• Blaming the defendant;
• Introducing damaging evidence;
• Calling hostile witnesses;
• Cross-examining the defendant’s witnesses;
• Emphasizing the defendant’s alleged conduct; or
• Arguing that the co-defendant was manipulated or misled by the defendant.

The client may effectively face two prosecution theories: one from the prosecutor and another from the co-defendant’s attorney.

A severance motion is stronger when the defense can identify affirmative evidence or arguments the co-defendant plans to present against the client, rather than merely speculating that blame may be shifted during trial.

Most of the Trial Has Nothing to Do With the Client

A particularly compelling situation can arise when the client is named in only one count of a lengthy indictment.

Suppose numerous defendants are charged with a homicide, weapons offenses and conspiracy. The client is charged only with allegedly helping one defendant after the homicide was complete.

A joint trial could expose that client to:

• Graphic homicide evidence;
• Autopsy testimony;
• Evidence concerning the weapon;
• Testimony about conduct occurring outside the client’s presence;
• Statements made before the client allegedly became involved; and
• Evidence relevant only to proving the principal offense.

The motion should not merely say that the evidence is “prejudicial.” It should demonstrate, witness by witness and exhibit by exhibit, how much of the trial would be irrelevant or inadmissible if the client were tried alone.

Useful questions include:

• How many counts name the client?
• When did the client’s alleged involvement begin?
• Was the principal crime already complete?
• Was the client present for the violent conduct?
• Did the client know about the original plan?
• Would the graphic evidence prove any disputed element of the client’s charge?
• Could the client’s case be tried using only a small fraction of the State’s witnesses?

A Separate Trial May Produce Exculpatory Testimony

A co-defendant may possess information that clears or substantially assists the client but may refuse to testify while their own prosecution remains pending.

In State v. Sanchez, the New Jersey Supreme Court established that severance should be granted when the court is reasonably certain that:

1. The defendant will call the co-defendant as a witness in a separate trial;
2. The co-defendant will actually testify in a separate proceeding, even though unwilling to testify at the joint trial; and
3. The proposed testimony is credible and substantially exculpatory.

A vague representation that the co-defendant “might help” is not enough.

The application should ordinarily include a detailed certification, affidavit, statement or other reliable proffer explaining:

• Whether the co-defendant will testify;
• What the testimony will be;
• Why the testimony is credible;
• How it exculpates the defendant; and
• Whether the offer depends on the order of the separate trials.

The Jury May Be Unable to Keep the Evidence Separate

A multi-defendant case may involve dozens of counts, multiple locations, different time periods and separate theories of liability.

The possibility of confusion increases when:

• Defendants are named in different combinations of counts;
• The alleged conduct occurred on different dates;
• Some defendants are charged as principals and others as accomplices;
• Evidence is admitted for a limited purpose against only one person;
• Multiple statements must be separately considered; or
• The client’s alleged conduct is temporally remote from the central offense.

The motion should identify concrete examples of likely confusion. Courts generally presume that jurors follow limiting instructions, so the defense must explain why instructions would be insufficient under the particular facts.

What Is Usually Not Enough to Obtain Severance?

A court will not ordinarily grant separate trials merely because:

• The client believes a separate trial would be strategically better;
• The evidence against another defendant is stronger;
• One co-defendant faces more serious charges;
• Some evidence applies only to one defendant;
• The defendants intend to criticize each other;
• The client fears guilt by association; or
• The case will be complicated.

These circumstances can still contribute to a stronger cumulative argument, but the motion should demonstrate a specific threat to the client’s ability to receive a fair determination of the charges actually brought against that client.

What Should a Criminal Defense Attorney Do?

A severance analysis should begin as soon as the indictment and discovery are available.

Review the indictment defendant by defendant

The attorney should identify:

• Every count;
• Every defendant named in each count;
• The alleged conduct underlying each charge;
• The relevant dates;
• The required mental state; and
• The State’s alleged theory of liability.

This can reveal that defendants placed together in one indictment are accused of fundamentally different conduct.

Separate the evidence by defendant

A useful case-analysis chart can include:

The chart can help demonstrate that a large portion of the State’s case does not concern the client.

Identify evidence that would not be admissible separately

The defense should ask:

What evidence will this jury hear only because my client is being tried with someone else?

That evidence may include a co-defendant’s statements, prior conduct, weapons, inflammatory photographs or proof concerning crimes in which the client allegedly had no involvement.

Determine the co-defendants’ anticipated defenses

Defense counsel should attempt to determine whether another defendant intends to argue that:

• The client committed the offense;
• The client possessed the weapon;
• The client planned the crime;
• The client acted alone;
• The client caused the co-defendant to participate; or
• The client fabricated or concealed evidence.

The court needs more than a general assertion that the defendants may blame one another.

Explain why jury instructions will not cure the problem

The State will commonly argue that the judge can instruct jurors to consider each charge and defendant separately.

The defense should explain why the prejudice is:

• Repeated throughout the trial;
• Highly emotional or inflammatory;
• Central to another defendant’s strategy;
• Based on evidence inadmissible against the client;
• Difficult to compartmentalize; or
• So extensive that an instruction cannot realistically eliminate it.

Seek alternative relief when appropriate

Complete severance is not the only possible remedy.

Rule 3:15-2 permits the court to direct other appropriate relief. Depending on the case, the defense may seek:

• Separate trials of defendants;
• Separate trials of particular counts;
• Redaction of a co-defendant’s statement;
• Exclusion of specified evidence;
• Limiting instructions;
• A particular order of trials; or
• Reconsideration if the actual trial developments reveal greater prejudice.

Can a Severance Motion Be Renewed?

The risks of a joint trial may become clearer as the case develops.

Circumstances can change when:

• A co-defendant gives a new statement;
• A defendant accepts or rejects a plea agreement;
• The State changes its theory;
• A co-defendant identifies a conflicting defense;
• New evidence is produced;
• Opening statements reveal an unexpected blame-shifting strategy; or
• Evidence admitted at trial exceeds what was anticipated.

Defense counsel should preserve the issue and seek renewed relief when later developments create a stronger and more concrete showing of prejudice.

Frequently Asked Questions

Does being indicted with someone mean the State claims we are equally responsible?

No. Defendants can be charged in the same indictment even though they face different counts, allegedly performed different acts and became involved at different stages.

Can my case be severed because my co-defendant is charged with murder?

Not automatically.

The defense must explain specifically how the murder evidence would unfairly prejudice the client and why the jury could not fairly consider the client’s more limited charge separately.

Is guilt by association enough to obtain a separate trial?

Ordinarily, no. The general danger of association exists in most joint trials. The motion must identify a particular and substantial form of prejudice.

What happens if my co-defendant confessed and named me?

The court must determine whether the references to you can be effectively removed from the statement. If the statement cannot be properly redacted without violating your rights or unfairly altering the evidence, separate trials may be necessary.

What if my co-defendant plans to blame me?

Blame shifting alone may not be enough. The strongest argument exists when the defenses are mutually exclusive—meaning that accepting the co-defendant’s defense effectively requires the jury to convict you.

Can a person charged with hindering be tried with someone charged with the original crime?

Potentially, yes, if the alleged conduct is sufficiently connected to the same series of events.

However, severance may be appropriate when the hindering defendant is named in only a limited count, was not present for the principal offense and would otherwise be exposed to extensive inflammatory evidence unrelated to the elements of the hindering charge.

Who decides whether the trials are separated?

The Superior Court judge assigned to the criminal case decides the motion after considering the parties’ submissions, the anticipated evidence and the degree of potential prejudice.

New Jersey Criminal Defense Attorney Anthony J. Vecchio

Anthony J. Vecchio represents defendants charged in complex New Jersey criminal cases involving:

• Multi-defendant indictments;
• Conspiracy;
• Hindering apprehension or prosecution;
• Evidence tampering;
• Obstruction;
• Weapons offenses;
• Aggravated assault;
• Homicide-related charges; and
• Other indictable offenses in Superior Court.

A multi-defendant indictment requires more than reviewing the charge directly naming the client. Defense counsel must understand the evidence against every co-defendant, the anticipated trial strategies and the information the jury may hear merely because the cases remain joined.

Contact a New Jersey Criminal Defense Lawyer

Being tried with the wrong co-defendants can expose a person to accusations and evidence that would never be admitted in a separate trial.

A properly supported motion to sever should identify the client’s limited alleged conduct, distinguish the evidence against each defendant and explain why jury instructions cannot provide a fair solution.

Contact the Law Offices of Anthony J. Vecchio to discuss a New Jersey indictment involving multiple defendants or a possible motion for severance under Rule 3:15-2.