IV. ARRAIGNMENT AND PRETRIAL
(a) Severance Motion.
(1) Timing.
(A) By Defendant. A defendant's motion for severance of offenses or defendants shall be made before trial, except that a motion for severance may be made before or at the close of all evidence if based on a ground not previously known. A defendant waives severance if the motion is not timely.
(B) By State. The state’s motion for severance of counts or defendants may be granted by the court only prior to trial, except with the consent of the defendant.
(2) Double Jeopardy. If during the trial the court grants a motion for severance made by the defendant or with the defendant’s consent, the ruling does not bar a subsequent trial of that defendant on the offenses severed.
(b) Severance of Offenses.
(1) Involving Permissive Joinder of Offenses. If two or more offenses are joined or consolidated for trial pursuant to Rule 8(b), the defendant has the right to a severance of the offenses unless the offenses are part of a common scheme or plan and the evidence of one would be admissible in the trial of the others.
(2) Involving Mandatory Joinder of Offenses. If two or more offenses are joined or consolidated for trial pursuant to Rule 8(a), the court shall grant a severance of offenses in any of the following situations:
(A) Before Trial. Before trial on motion of the state or the defendant when the court finds a severance appropriate to promote a fair determination of the defendant's guilt or innocence of each offense.
(B) During Trial. During trial, with consent of the defendant, when the court finds a severance is necessary to achieve a fair determination of the defendant's guilt or innocence of each offense. The court shall consider whether–in light of the number of offenses charged and the complexity of the evidence–the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.
(C) Conflicting Positions on Continuance. When the court finds merit in both the district attorney general’s motion for a continuance based on exigent circumstances that temporarily prevent the state from being ready for trial of the joined prosecutions and in the defendant’s objection to the continuance based on a demand for speedy trial. A court granting a severance under this subdivision shall also grant a continuance of the prosecutions in which the exigent circumstances exist.
(c) Severance of Defendants.
(1) Because of Out-of-Court Statement. If a defendant moves for a severance because an out-of-court statement of a codefendant makes reference to the defendant but is not admissible against the defendant, the court shall determine whether the state intends to offer the statement in evidence at trial. If so, the court shall require the prosecuting attorney to elect one of the following courses:
(A) a joint trial at which the statement is not admitted in evidence or at which, if admitted, the statement would not constitute error;
(B) a joint trial at which the statement is admitted in evidence only after all references to the moving defendant have been deleted and if the redacted confession will not prejudice the moving defendant; or
(C) severance of the moving defendant.
(2) Because of Speedy Trial or Fair Determination Concerns. On motion of the state or the defendant other than under Rule 14(c)(1), the court shall grant a severance of defendants if:
(A) before trial, the court finds a severance necessary to protect a defendant's right to a speedy trial or appropriate to promote a fair determination of the guilt or innocence of one or more defendants; or
(B) during trial, with consent of the defendants to be severed, the court finds a severance necessary to achieve a fair determination of the guilt or innocence of one or more defendants.
(3) Because of Failure to Prove Grounds for Joinder. The court shall grant a severance of defendants if:
(A) a defendant moves for severance at the conclusion of the state's case or at the conclusion of all the evidence;
(B) there is not sufficient evidence to support the allegation on which the moving defendant was joined for trial with the other defendant or defendants; and
(C) in view of this lack of evidence, severance is necessary to achieve a fair determination of the moving defendant's guilt or innocence.
Advisory Commission Comment.
Offenses permissively joined by the prosecution (or by the court) may be severed upon motion by the defendant as a matter of right, with one exception: where the offenses are part of a common scheme or plan and the evidence of one would be admissible upon the trial of the others.
The provisions of section (b)(2) set out when and under what circumstances there may be a severance of cases consolidated under the compulsory joinder rule.
Severance of defendants is covered in section (c), dealing with the Bruton issue. Bruton v. United States, 391 U.S. 123 (1968). Subdivision (c)(1) contains provisions making severance unnecessary where no Bruton violation would follow, as would be true, for example, where the confessing codefendant testifies or where redaction eliminates any prejudice to the nonconfessing codefendant.