Joinder is when two or more criminal charges or co-conspirators are combined into one criminal case in Nevada. Joinder may be convenient for prosecutors, but it is often harmful to defendants.
Each criminal charge lends itself to specific defense strategies, so fighting one charge could hurt a defendant’s ability to prevail on another at a trial. And co-defendants often have conflicting interests, which could preclude them from advancing effective defenses on their own behalf.
Whenever joinder may be prejudicial to a defendant, the defendant can ask the court during the pretrial phase to sever the case into separate cases. If the judge agrees and severs the charges and/or alleged co-conspirators into separate cases, the defendant should have a more even playing field to fight the allegations.
In this article, our Las Vegas criminal defense attorneys discuss how joinder works in the criminal court process:
Joinder is the joining of offenses or co-conspirators into one case.
1. Joinder of offenses
A joinder of offenses is when prosecutors charge a defendant with more than one crime in the same case. Prosecutors may join two or more offenses in the same case if either:
- the offenses are based on the same act or transaction, or
- the offenses are based on two or more acts or transactions connected together, or
- the offenses constitute a common scheme or plan
In short, the D.A. does not have to bring a separate case for each separate offense if those offenses are sufficiently related.
Example: One night Oliver breaks into a North Las Vegas home and steals a $100 worth of property. He gets caught and arrested for burglary and petty larceny. Since the burglary and petty theft arose out of the same act, the prosecutor can charge Oliver of both crimes in just one case.
As in the example above, prosecutors may join related offenses into one case no matter whether they are
Prosecutors often make their joinder decision at the beginning of a case before the arraignment. They usually name all the charges in the initial charging documents (either an “indictment” or an “information”). But courts may elect to join offenses after the case has been ongoing.2
2. Joinder of defendants
A joinder of defendants is when prosecutors charge two or more defendants in the same case. Prosecutors may join defendants if they allegedly participated in the same criminal act or transaction — or in the same series of criminal acts or transactions.
In short, the D.A. does not have to bring a separate case for each defendant if those defendants participated in the same criminal activity.
Example: Jude and Tex rob a liquor store and drive away in Jude’s car. Jude is drinking and eventually gets into an accident. Since Jude and Tex both robbed the liquor store, the prosecutor charges them both with robbery and conspiracy in the same case. The case also includes a DUI charge for Jude.
As in the example above, all of the defendants in a case do not need to be charged in each count. Some defendants may be charged with more or different crimes than other defendants.3
Prosecutors often make their joinder decision at the beginning of a case before the arraignment. They usually name all the co-defendants in the initial charging documents (either an “indictment” or an “information”). But courts may elect to join defendants after the case has been ongoing.4
3. Benefits
Joining offenses or defendants in a case serves mostly the prosecution. It is a lot easier, quicker, and less costly for the prosecution to combine separate charges and defendants in one case than to litigate everything separately.
In some situations, a defendant could benefit from defending against multiple charges in the same case; if the state’s evidence is weak on one charge, it could cause the jury to be skeptical of the other charge(s) as well.
And in some situations, defendants might benefit from having co-defendants; perhaps certain defense strategies would benefit from having “safety in numbers.”
4. Prejudice
Defendants can file “motions to sever” when joinder is prejudicial to their cases.
Having joined offenses or defendants can be very harmful (“prejudicial”) to the defendant:
If the state’s evidence is strong on a particular charge, it may cause the jury to presume that the defendant is guilty on all the other charges as well. In other words, “the domino effect.”
If a co-defendant appears guilty, it may cause the jury to believe the joined co-defendants are guilty as well. In other words, “guilty by association.” Furthermore, the co-defendants may have conflicting interests and may present different defenses; these differences could, in turn, hurt each other’s cases.
Also, the D.A. may use joinder to try to overwhelm a defendant into a position of weakness: By making a criminal case as big as possible with multiple defendants and/or charges, the D.A. could succeed in pressuring a defendant into accepting a plea bargain instead of fighting the case.
5. Motions to sever
When a joinder of charges or co-defendants may be prejudicial to a defendant, the defendant can file a “motion to sever” with the court.5 As it sounds, a motion to sever asks the court to separate the charges and/or co-defendants into their own separate cases.
The court should grant a motion to sever “only when there is a serious risk that a joint trial would compromise a defendant’s specific trial right, or preclude the jury from reaching a reliable verdict.”6
Example: Ginger and Helen are co-defendants in a robbery case. After Helen was arrested, she made incriminating statements to the police. Due to these incriminating statements, Ginger believes being tried together with Helen would be prejudicial to Ginger. Therefore, Ginger files a motion to sever. The judge agrees that Helen’s incriminating statements could hurt Ginger’s ability to present her defense. So the judge divides the case into two separate robbery cases with Ginger and Helen as the sole defendant in each.
Note that motions to sever must be filed with the court at least 10 days before the trial unless a good reason exists.7 And if the trial court refuses to grant severance, the defendant can always appeal to a higher court. The Nevada Supreme Court may overturn guilty verdicts when it finds that the trial judge “abused its discretion” by not granting severance.8
Note that the Nevada Supreme Court has ruled that there is one particular instance where severance of charges is mandatory: If a defendant faces more than one charge that includes possession of a firearm by an ex-felon, the possession charge must be prosecuted in a separate case from the other charges.9
Legal References
- NRS 173.115 Joinder of offenses: Misdemeanor joined in error must be stricken. 1. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or gross misdemeanors or both, are: (a) Based on the same act or transaction; or (b) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. 2. Except as otherwise provided in subsection 3, a misdemeanor which was committed within the boundaries of a city and which would otherwise be within the jurisdiction of the municipal court must be charged in the same criminal complaint as a felony or gross misdemeanor or both if the misdemeanor is based on the same act or transaction as the felony or gross misdemeanor. A charge of a misdemeanor which meets the requirements of this subsection and which is erroneously included in a criminal complaint that is filed in the municipal court shall be deemed to be void ab initio and must be stricken. 3. The provisions of subsection 2 do not apply: (a) To a misdemeanor based solely upon an alleged violation of a municipal ordinance.(b) If an indictment is brought or an information is filed in the district court for a felony or gross misdemeanor or both after the convening of a grand jury.
- NRS 174.155 Trial together of indictments or informations. The court may order two or more indictments or informations or both to be tried together if the offenses, and the defendants if there is more than one, could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under such single indictment or information.
- NRS 173.135 Joinder of defendants. Two or more defendants may be charged in the same indictment or information 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. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
- NRS 174.155.
- NRS 174.165 Relief from prejudicial joinder. 1. If it appears that a defendant or the State of Nevada is prejudiced by a joinder of offenses or of defendants in an indictment or information, or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. 2. In ruling on a motion by a defendant for severance the court may order the district attorney to deliver to the court for inspection in chambers any statements or confessions made by the defendants which the State intends to introduce in evidence at the trial.
- Rodriguez v. State, 117 Nev. 800, 32 P.3d 773 (2001)(Jointly-indicted defendants should be tried jointly absent compelling reasons; the court must consider prejudice both to the defendant but also the state resulting from costly, similar trials; the court should grant severance only when there is a serious risk that a joint trial would compromise a defendant’s specific trial right, or preclude the jury from reaching a reliable verdict.); also see Anderson v. State, 81 Nev. 477, 406 P.2d 532 (1965)(Defendant needs to show sufficient facts proving a joint trial would cause prejudice in order to get separate trials.); Floyd v. State, 118 Nev. 156, 42 P.3d 249 (2002)(In order to prove that joinder was unfairly prejudicial, the defendant needs to show that the jury wrongly accumulated evidence, that it utilized the proof of one offense to improperly convict the defendant of other offense(s), or that joinder precluded the defendant from testifying regarding certain changes.); Zana v. State, 125 Nev. 541, 216 P.3d 244 (2009)(It was not an abuse of discretion for the trial court to refuse the defendant’s motion to sever charges since the evidence was cross admissible.).
- NRS 174.125 Certain motions required to be made before trial.1. All motions in a criminal prosecution to suppress evidence, for a transcript of former proceedings, for a preliminary hearing, for severance of joint defendants, for withdrawal of counsel, and all other motions which by their nature, if granted, delay or postpone the time of trial must be made before trial, unless an opportunity to make such a motion before trial did not exist or the moving party was not aware of the grounds for the motion before trial. 2. In any judicial district in which a single judge is provided: (a) All motions subject to the provisions of subsection 1 must be made in writing, with not less than 10 days’ notice to the opposite party unless good cause is shown to the court at the time of trial why the motion could not have been made in writing upon the required notice. (b) The court may, by written order, shorten the notice required to be given to the opposite party. 3. In any judicial district in which two or more judges are provided:(a) All motions subject to the provisions of subsection 1 must be made in writing not less than 15 days before the date set for trial, except that if less than 15 days intervene between entry of a plea and the date set for trial, such a motion may be made within 5 days after entry of the plea.(b) The court may, if a defendant waives hearing on the motion or for other good cause shown, permit the motion to be made at a later date.
4. Grounds for making such a motion after the time provided or at the trial must be shown by affidavit.
See also O’Brien v. State, 88 Nev. 488, 500 P.2d 693 (1972)(Lack of timeliness is sufficient to deny a motion to sever.).
- See, for example, Rodriguez v. State, supra (On appeal, appellate has to show trail court abused its discretion in not severing the trial.”
- Brown v. State, 114 Nev. 1118, 967 P.2d 1126 (1998)(In cases with multiple counts that include possession of a firearm by an ex-felon, severance is required of the possession charge).