The Problem With Co-Defendant Cases

Multiple defendants are often charged in the same case for commission of the same crime. Drug cases, RICO cases, murder cases and home invasion robberies are some examples.

When multiple defendants are accused of the same crime, a unique and very concerning problem can — and often does — arise: One defendant confesses to the police and implicates another. What's the problem? The application of the Sixth Amendment guarantee to be able to confront one's accuser.

The problem is that a defendant has the Fifth Amendment right to remain silent and not be forced to take the stand at his or her own trial. If two defendants are tried jointly in the same trial, and both elect not to take the stand, then the evidence of one's confession/implication of the other defendant can only come from the detective who took that confession.

The one who didn't make a confession then cannot confront and cross-examine the accuser — that is, the other defendant, not the cop. Complicated? Not really, because there is a rule that takes care of it: the severance of defendants, meaning that they are given separate trials and no longer to be tried together by one jury.

Florida Rule of Criminal Procedure 3.152, pertaining to the severance of defendants, codifies the holding in Bruton v. United States, 391 U.S. 123 (1968), a United States Supreme Court case. In the event that there is a statement by one defendant that implicates another, then the state attorney's office will have to decide which of the following to have:

  1. A joint trial where the statements are not used at all.
  2. A joint trial where the statement is redacted — that is, edited so that only the confession of the one defendant is heard by the jury, and the part implicating the other defendant is left out. This can be tricky, as the detective has to be very careful not to mention the redacted testimony. It can also be complicated when the statement is on video and there are skips in the video that makes the jury wonder what is missing and why.
  3. Severance of the defendants from one another, with a separate trial for each defendant. This can be complicated because of speedy trial rights, and deciding which defendant to try first.

Facing A Co-Defendant Case?

If you have any questions about joint trial issues, call Bodiford Law, P.A., for expert guidance from criminal trial attorney Joe Bodiford. Call our Tallahassee office at 850-222-4529 (for existing clients) and 850-583-7381 (for new clients) or contact us online for a free consultation.