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Can you sever your case if you have co-defendants?

On Behalf of | Mar 14, 2024 | Criminal Defense

It’s not uncommon for multiple people to be charged with committing the same criminal act. From a “white collar” offense like money laundering to a “street crime” like theft or dealing drugs, two or more people are often involved. 

Prosecutors often like to try defendants together if possible. It takes less time, manpower and court resources. However, that’s often not in the best interests of a defendant. 

If someone had less involvement in the actual criminal act or maybe even got caught up in the whole thing by mistake, it’s in that person’s best interests to have their case “severed” from the other(s). However, it’s not as easy as it may seem like it should be. It’s important to understand a bit about the legal concept of “joinder and severance.”

What has the Virginia Supreme Court ruled?

The state’s high court has ruled that cases of people “charged with participating in contemporaneous and related acts or occurrences” can be joined “unless such joint trial would constitute prejudice to a defendant.” If it would, then “the court must order severance as to that defendant or provide such other relief as justice requires.” 

The case for severance needs to be made to the judge before the trial begins unless something occurs during the trial that creates a case for severance where there wasn’t one before. For example, if a co-defendant engages in additional criminal activity – particularly if it’s related to the initial offense or to the trial – you likely don’t want your future tied to a judge or jury’s view of them.

How do you make a case for severance?

To sever your case from that of your co-defendant(s), you must why that prejudice against them would be likely to occur. Even if you didn’t know the other co-defendants or what they were doing, that alone may not be a reason. Large criminal enterprises often involve people in different areas who are working independently of one another. They can often be tried together. 

It’s crucial to have your own legal representation if you want to make a motion to sever. Even if you don’t, it’s wise to have your own counsel. You want someone who’s only allegiance is to you — and the law.



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