My client is charged with co-defendants. Do I try to get him his own trial, and how?

The vehicle: is the joinder even proper? (Fed. R. Crim. P. 8)

Before the prejudice analysis, the threshold question is whether the counts and the defendants belonged in the same indictment at all. Misjoinder is a distinct challenge from prejudice, and it is attacked on its own footing. The standard on each row is the rule’s own language, quoted verbatim; the note beside it is general method, not a claim about any case.

• Rule 8(a)

  Joinder of offenses

  The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.

  The first question in any joint-defendant case is whether the counts and the defendants were properly joined in the first place, because misjoinder is a distinct challenge from prejudice: it asks whether the charges even belong in the same indictment, not whether a proper joinder should be undone for prejudice. Counsel reads each count against the same-or-similar-character, same-act-or-transaction, and common-scheme-or-plan standards and identifies any count that does not fit, because a misjoined count is attacked on its own footing before the Rule 14 prejudice analysis is reached.

• Rule 8(b)

  Joinder of defendants

  The indictment or information may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.

  For co-defendants, the joinder question turns on whether they are alleged to have participated in the same act or transaction, or the same series of acts or transactions. Counsel tests the indictment against that standard: a defendant swept into a joint indictment on conduct that is not part of the alleged common series is a misjoinder candidate, and the point is preserved separately from the prejudice grounds. The rule expressly allows charging defendants together or separately and does not require every defendant to appear in every count, so the analysis is count-by-count and defendant-by-defendant.

The joinder standards are quoted from Fed. R. Crim. P. 8 (Cornell Legal Information Institute). The rule controls; confirm the current text and the controlling misjoinder authority in your circuit before relying on any of it.

The four prejudice grounds at a glance (Fed. R. Crim. P. 14)

Once joinder is proper, severance is sought under Fed. R. Crim. P. 14 to cure prejudice. Four grounds recur, each stated as a general category, not as a holding. Here is the whole set, one line each. One of them is worked in full below as a sample; the rest are worked in full, with the controlling cases and their verbatim holdings, in the Severance & Joinder Motion Pack.

• 1. Antagonistic defenses

  Whether the co-defendants' theories are so irreconcilable that the jury cannot credit one defense without disbelieving the other, turning a co-defendant's counsel into a second prosecutor.

• 2. Evidentiary spillover

  Whether evidence admissible against a co-defendant but not the moving defendant will be heard and cannot be reliably compartmentalized, burying discrete conduct under a co-conspirator's.

• 3. The Bruton confrontation problem

  Whether a non-testifying co-defendant's out-of-court statement implicates the moving defendant, raising a constitutional confrontation problem a limiting instruction cannot cure.

• 4. Disparity of evidence

  Whether the sheer imbalance between the evidence against the moving defendant and the co-defendants, measured by what the jury hears, threatens a reliable individualized judgment.

The severance grounds are worked under Fed. R. Crim. P. 14. How each ground is analyzed on your facts and in your circuit is a matter for your own research; confirm the controlling authority before relying on any of it.

Sample: The Bruton confrontation problem worked in full

To show what “worked in full” means, here is the Fed. R. Crim. P. 14 Bruton confrontation problem taken past the one-line description: the general prejudice theory and the drafting move a defender works through. This ground is set out because it is constitutional, not merely evidentiary, and is the one most often decisive in a case with a co-defendant confession. The other three grounds are worked to this depth, with the relief menu and the timing, in the Severance & Joinder Motion Pack.

That is one ground. The other three prejudice grounds worked to this depth, the Fed. R. Crim. P. 14 relief the court can order, the in-camera inspection of a co-defendant statement, and the how and when to move are the rest of the framework, drafted and worked in the Severance & Joinder Motion Pack.

The verified authorities the drafted motions are built on

The severance motions in the depth product are built on verified authorities. Each entry below is the lead authority of one of the two paid motion templates, surfaced here by reference to the product data so no holding is reproduced or reworded on this free page. The full holding language, the attaching precedent, and the drafted motion are in the pack.

• Bruton v. United States, 391 U.S. 123, 137 (1968)

  Lead authority for the severance-bruton motion template (391 U.S. at 137), with its verbatim holding and source URL carried in the depth product.

• Zafiro v. United States, 506 U.S. 534, 539 (1993)

  Lead authority for the severance-zafiro motion template (506 U.S. at 539), with its verbatim holding and source URL carried in the depth product.

The case authorities above are reused by reference from the source-cited severance-pack product data; each carries its own verified source URL there. This page authors no case holding of its own. Confirm the current authority in your circuit before relying on any of it.

Turn the analysis into the filed motion

The analysis runs in order: first, is the joinder even proper under Rule 8, because a misjoined count or defendant is attacked on its own footing before prejudice is reached; second, which Rule 14 prejudice ground the case presents, whether antagonistic defenses, evidentiary spillover, the Bruton confrontation problem, or disparity of evidence, and how each is shown with specifics from the record; third, what Rule 14 relief fits the prejudice, from a full severance down to a narrower count-severance or a limiting measure, and whether to ask the court to inspect a co-defendant statement in camera before it rules; and fourth, when to move, which is before the government locks its trial posture. The goal is a motion the court can grant on a clean pretrial record rather than a mid-trial severance forced by a problem that should have been raised earlier.

This sample is the shape of the analysis and one ground worked through. The Severance & Joinder Motion Pack is the source-cited depth product built to ground it: two pre-drafted motion templates, the Bruton redaction-failure severance for the non-testifying co-defendant statement, and the Zafiro spillover-prejudice severance for antagonistic defenses and disparity, each with the lead authority’s verbatim holding, the attaching precedent, editable motion language, and a reply-brief framework. The cousin shares the case: the free cross-examine-a-cooperating-witness framework is what you reach for when the co-defendant testifies instead of staying silent.

Reference

For the source-cited depth product that grounds the motion, see the Severance & Joinder Motion Pack and its Bruton and Zafiro templates. For the cousin that shares the case, use the free cross-examine-a-cooperating-witness framework. The joinder standards and the relief provisions are quoted from Fed. R. Crim. P. 8 and Fed. R. Crim. P. 14; verify the current rules and the controlling case law in your circuit before relying on any of it.