Joinder, Consolidation, and Severance of Defendants and Offenses

Question 1

Joinder of Offenses

Answer 1

Offenses may be joined in one indictment or information if based on the same act or transaction.

Question 2

Joinder of Defendants

Answer 2

Joinder of defendants is permitted if:

• Each defendant is charged in each count;
• Conspiracy plus (i.e., each defendant is charged with conspiracy and a substantive offense); or
• The offenses are all part of a common scheme or plan.

Question 3

Joint Representation

Answer 3

If two or more defendants have joined for trial and are represented by the same attorney or firm, the court must advise each of the right to separate representation.

Question 4

Consolidation of Offenses

Answer 4

Offenses that could have been joined in one indictment or information may be consolidated for trial upon motion of either side.

Defendant may move before trial to consolidate all state charges against him and may move for dismissal of charges unreasonably not consolidated.

Question 5

Severance of Offenses

Answer 5

Defendant has a right to sever charges improperly joined. Properly joined charges must alos be served on motion from either side if necessary to fairly determine guilt.

Question 6

Severance of Defendants

Answer 6

Defendant or the state may move for severance of defendants if proper to achieve a fair determination for each or to ensure a speedy trial.

Question 7

Bruton Problem

Answer 7

Arises when a defendant confesses and implicates a co-defendant. The issue is whether the co-defendants should be severed.

Question 8

What are the state’s thee options if a Bruton problem arises?

Answer 8

1. Omit the state
2. Remove all prejudicial references from the tainted statement; or
3. Sever

Question 9

Arraignment

Answer 9

Arraingment is the defendant’s formal response in open court to the formal charges.

• If defendant does not have counsel, the court must advise him of his right to counsel of choice or appoint counsel at the arraignment and all subsequent proceedings.
• ARRAIGNMENT CAN OCCUR AT ANY TIME AFTER THE DEFENDANT IS FORMALLY CHARGED.

Question 10

Types of Pleas

Answer 10

1. Guilty
2. Not Guilty
3. Nolo Contendere

Question 11

Acceptance of Please

Answer 11

• The presence of the defendant is generally required, especially for a felony case.
  
  • The defendant must be present in court to enter a plea of guilty or no contest.
  • The defendant may enter a plea of not guilty in wrting, through his attorney.

Question 12

Responsibility of Court in Pleadings

Answer 12

To ensure voluntariness of waiver and a factual basis for the plea, the judge has a plea colloquy with the defendant who is asked questions so he understands that:

1. there exists a right to counsel
2. the defendant has a right to trial and confrontation
3. pleading guilty or nolo contender without an express reservation of appeal waives appleas except for collateral attacks and habeas corpus
4. a guilty or nolo plea also waives trial possibly by jury
5. that, by pleading guilty, the court will ask the defendant questions under oath, the answer to which may be used against the defendant in a later perjury proceeding
6. all of the terms of the plea agreement, including potential length of sentence
7. that a plea may subject non-citizens to deportation.

Question 13

Withdrawal of Guilty Plea

Answer 13

• The court ay permit, and for good cause must permit, withdrawal of a guilty plea before sentencing.
  
  • Thereafter, a court may permit a not guilty plea or, with consent of the prosecutor, a plea of a lesser offense.
• Evidence of a withdrawn guilty plea may not be used at trial.
• A defendants who pleads guilty or nolo contendere without reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within 30 days after rendition of sentence only on limited grounds:
  
  • lack of subject matter jurisdiction
  • violation of a plea agreement
  • involuntary plea, or
  • sentencing error.
• A defendant who files a plea of guilty or nolo contendere for the purpose of participating in a drug court treatment program may withdraw the plea after succesful completion of the program.

Question 14

Plea Bargaining

Answer 14

• Negotiated pleas are encouraged, but the ultimate sentencing decision rests with the judge.
  
  • If the judge refused to go along with the negotiated plea, the defendant may withdray his plea.
• In return for a guilty or nolo contendere plea, the prosecutor may drop other charges or recommend or agree to a specific sentence.
• Details
  
  • Prosecutor must inform judge of all material facts, including DNA evidence, that might exonerate the defendant.
  • Prosecutor must record plea discussions with unrepresented defendants and furnish the record to the jduge.
  • The defense attorney must review the physical evidence against the defendant, communicate all plea offers to the defendant, and not enter a plea without the defendant’s consent.
• Breach of plea agreements
  
  • If prosecution breaches plea agreement, defendant may ask for new trial or sentencing hearing.
    
    • If defendant breaches a plea agreement, the state may move to vacate the plea within 60 days of the breach.