Last Updated on February 20, 2025
Most people charged with a crime settle things in a plea bargain. When things aren’t settled this way, they go to trial. While most people go through their trials alone, some co-defendants facing charges from the same circumstances are tried together. While these joint trials save court resources and make it easier for witnesses, they also have their downsides, which is why defense lawyers sometimes file a motion to sever, meaning they request that the defendants be tried separately.
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What is a Joint Trial?
A joint trial, sometimes called a joinder, is one where the judge has ordered multiple defendants to attend court together because their cases involve similar circumstances. The charges themselves do not need to be the same. In most cases, this only happens when the prosecution charges the defendants together.
For example, if five friends plan a bank robbery together, they may all be tried simultaneously, even if only three entered the bank with weapons while one served as a getaway driver and the fifth only helped to plan the heist. While they would all be tried for conspiracy charges, if one of the armed robbers punched a teller, he would be the only one charged with battery.
The most common charges involving joint trials include:
What is a Joinder Under California Criminal Law?
There are two types of joinder cases in criminal law:
- Joinders of offenses: when a single defendant is tried for two or more related crimes simultaneously. In these cases, the different charges are often called “counts.”
- Joinders of defendants: where two or more co-defendants facing related charges are tried in a single trial
When Does California Require Co-Defendants be Tried Together?
California Penal Code 1098 (PC) specifies when joint trials should occur. It states that when two or more co-defendants are charged together for any offense, they should be tried jointly unless the court orders the trials to be separated. The judge has the discretion to sever the trial so all co-defendants will be charged individually, or only some defendants will be tried together.
One common misconception about joint trials is that the defendants must face the same charges to be tried together. However, the defendants need only to be involved in the same situation to be tried together —though they will usually face at least some of the same charges.
So, for example, imagine that two friends conspired to murder someone together. One of them may have committed the murder, but they both hid the body. In this case, they would both face conspiracy charges and charges for destroying evidence. While the person who killed the victim would face murder charges, the other would face charges related to aiding and abetting murder.
Along the same lines, the jury may hear the evidence against both defendants simultaneously, but they will evaluate each party’s charges individually. In the example above, this would mean that they could find the murderer guilty of all counts while the accomplice could be found innocent of all charges.
When are Co-Defendants Tried Separately?
Joinders of defendants can only be ordered if it will not violate any of the defendant’s right to a fair trial. For example, if the defendants either blame one another or attack the credibility of one another, then they shouldn’t be in a joint trial. Similarly, if one co-defendant waives their right to a speedy trial to gather more evidence to bolster their case while the other wishes the trial take place as soon as possible, their trial may be severed as both requests cannot be honored at the same time.
Evidence rules can often become very complex in these cases, as a piece of evidence that can be used against one defendant may not apply to another’s case, but could still bias the jury against them. While the judge may instruct the jury only to consider a piece of evidence as it applies to one defendant, sometimes this is insufficient to protect a defendant’s right to a fair trial and may require the trial to be severed.
For example, if the prosecution has evidence that a murderer sexually assaulted the victim before disposing of the body and the co-defendant did not plot this part of the murder, this evidence could bias jurors against the co-defendant. The judge should sever the trial in this case.
How is a Joint Trial Severed?
Either the prosecution or the defense can file a motion to sever. Defense attorneys often request for a trial to be severed on the grounds that it jeopardizes their client’s right to a fair trial.
A judge has wide discretion in deciding if defendants should be tried together or separately. The judge should weigh the efficiency of one trial versus any unfair prejudice to two defendants, given the particular evidence of the case or the conflicting positions of the defendants. Even a death penalty trial does not automatically require severance, though the judge must be cautious in evaluating the pros and cons, given the severity of the penalty.
If the defense’s motion to sever is denied and the defendant is found guilty, it may provide grounds for appeal if they believe this is why they lost their case.
Do Co-Defendants in a Joint Trial Need to Have the Same Lawyer?
No, nor is it advisable. Although not prohibited, it is rarely wise for the same lawyer to represent two defendants in a trial. Defendants are often placed in conflicting positions at trial, which is not a guaranteed basis for severance. Additionally, one defendant may be more guilty than another, putting a lawyer attempting to represent both in an unethical position of favoring one client’s defense over another. Even if the defendants start the trial with the same strategy, their positions often change based on the evidence.
The court can sanitize statements introduced by the prosecution against one defendant so the other defendant is not mentioned in the statement. If one defendant testifies, the other defendant’s lawyer can cross-examine the first defendant to protect his client’s rights —which would, again, be difficult for an attorney to do fairly and ethically if he represented both clients.
The Pros and Cons of Joint Trials
Courts may try defendants together for many reasons, but there are also considerable benefits to severing the trials. Here are some advantages to trying co-defendants at the same time:
- these trials save court resources by requiring only one courtroom, one judge, one DA, and one jury, which also means there will only be one jury selection process
- witnesses only have to testify a single time rather than make two or more appearances
Some disadvantages include:
- joint trials can become very complex if some evidence applies to only some defendants and not others, and each defendant has their own defense lawyer who may try to undermine the defense of other defendants
- when there are too many defendants or too many differing charges, trying all the parties at once can become too complicated
- a joint trial may occasionally violate the rights of one or more defendants, and if the trial must be severed after it has gone on for a while, doing so will waste more court resources than just severing it to start with
- if a defendant has a more checkered criminal background than their co-defendant, the jury may judge the second party for associating with a known criminal
If you have been accused of a crime and may be tried jointly with one or more co-defendants, please call Peter Liss at (760) 643-4050 to schedule a free initial consultation.
