TITLE TWO — PRELIMINARY PROCEEDINGS
Rule 9. Joinder of Offenses or Defendants
Joinder of Offenses.
Related Offenses. Two or more offenses are related offenses if they are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan. Whether two or more offenses are related is a question for the judge, determined from the charging instrument, the statement of facts supporting it, and the offers of proof of the parties.
Joinder of Related Offenses in Criminal Information. If two or more related offenses are of the same or similar character, they may be charged in the same criminal complaint, with each offense stated in a separate count. Each count shall be separately numbered, shall identify the statutory provision alleged to have been violated, and shall satisfy Rule 4(a). A count that fails to state an offense does not impair the remaining counts.
Joinder of Related Offenses for Trial. If a defendant is charged with two or more related offenses, either party may move for joinder of such charges. The trial judge shall join the charges for trial unless he determines that joinder is not in the best interests of justice.
Joinder of Unrelated Offenses. Upon the written motion of a defendant, or with his written consent, the trial judge may join for trial two or more charges of unrelated offenses upon a showing that failure to try the charges together would constitute harassment or unduly consume the time or resources of the parties. The trial judge shall join the charges for trial unless he determines that joinder is not in the best interests of justice.
Determination; Factors. In determining whether joinder is in the best interests of justice under subdivisions (a)(3) and (a)(4) of this rule, the judge shall consider:
whether the evidence of each offense would be admissible at a separate trial of the other, as provided by Rid. R. Evid. 404;
whether the offenses are so similar in character that proof of one is likely to be taken as proof of another;
the number of counts and the burden upon the court, the parties, and the witnesses of separate trials;
the effect of joinder or severance upon the seventy-two hour period prescribed by Rule 46(a) and upon the speedy trial rights secured by 6 R. Stat. § 131.305 and Rule 19;
whether the defendant wishes to testify as to some counts and not as to others; and
whether a charge of treason is joined with any other charge.
Time for Motion. A motion under this rule is a pretrial motion and shall be filed within the time allowed by Rule 13(d)(2), except that a motion for severance based upon a ground not previously known may be made as provided by subdivision (d)(2) of this rule.
Joinder of Defendants. Two or more defendants may be joined in the same criminal complaint if the charges against them arise out of the same criminal conduct or episode or out of a course of criminal conduct or series of criminal episodes so connected as to constitute parts of a single scheme, plan, conspiracy or joint enterprise. The defendants may be charged separately or together in one or more counts; all of the defendants need not be charged in each count.
Identification of Defendants. A complaint joining two or more defendants shall identify each defendant by username or, if the username is unknown, by any name or description by which the defendant can be identified with reasonable certainty, in the manner required by Rule 6(b)(1).
Counsel. Each joined defendant shall appear by separate counsel unless the judge, after inquiry on the record of each affected defendant, finds that joint representation presents no conflict of interest and that each defendant has knowingly assented to it. The judge may inquire at any time thereafter and may order separate counsel upon a finding of conflict.
Discovery. Automatic discovery under Rule 14(a)(1) runs separately to each joined defendant. A statement of a co-defendant is discoverable by every defendant under Rule 14(a)(1)(A)(i).
Consolidation of Offenses or Defendants on Motion of Court. The trial judge may order two or more complaints to be tried together if the offenses and the defendants, if more than one, could have been joined in a single complaint. The procedure shall be the same as if the prosecution were under a single complaint.
Notice; Opportunity to Be Heard. Before ordering consolidation on the court’s own motion, the judge shall give the parties notice in the proceeding communications and an opportunity to be heard. The judge shall state the grounds for consolidation on the record.
Lead Case; Where Papers Are Filed. The electronic filing system maintains no consolidated case record. An order of consolidation shall accordingly designate one case, by its case number, as the lead case. All subsequent filings shall be made in the lead case. Each consolidated case remains open upon the docket, and the Clerk shall file the order of consolidation in every consolidated case.
Effect upon the Charging Instruments. Consolidation does not merge the charging instruments, amend any count, or alter the burden of proof as to any count or any defendant. Each count is tried, and each defendant is adjudicated, upon the instrument by which that count or that defendant was charged.
Severance of a Consolidated Case. The judge may at any time vacate an order of consolidation in whole or in part upon the standards of subdivision (d) of this rule.
Relief from Prejudicial Joinder.
In General. If it appears that a joinder of offenses or of defendants is not in the best interests of justice, the judge may upon his own motion or the motion of either party order an election of separate trials of counts, grant a severance of defendants, or provide whatever other relief justice may require.
Motion by the Defendant. A motion of the defendant for relief from prejudicial joinder shall be in writing and made before trial and shall be supported by an affidavit setting forth the grounds upon which any alleged prejudice rests, except that a motion for severance may be made before or at the close of all the evidence if based upon a ground not previously known.
Grounds. Prejudice warranting relief under this subdivision includes, without limitation:
that the defenses of joined defendants are irreconcilably antagonistic, such that the fact finder’s acceptance of one defendant’s defense requires the rejection of another’s;
that a statement of a co-defendant which implicates the moving defendant will be offered and the co-defendant will not be subject to cross-examination;
that evidence admissible against one defendant or upon one count is inadmissible against another defendant or upon another count and a limiting instruction under Rid. R. Evid. 105 will not cure the risk of misuse;
that there is a gross disparity in the weight or nature of the evidence as among joined defendants or joined counts;
that a joined defendant would give exculpatory testimony at a separate trial and will not testify at a joint trial;
that joinder would deprive a defendant of a trial by jury to which the defendant is entitled, or would submit to a jury a charge upon which no jury trial is authorized by law; or
that joinder cannot be accomplished without exceeding the period prescribed by Rule 46(a) as enlarged.
Determination. The judge shall rule upon a motion under this subdivision before the empanelment of a jury or, in a bench trial, before the first witness is sworn, and shall state findings upon the record. A ruling upon a motion under this subdivision is not a ruling upon a motion to dismiss or for appropriate relief within the meaning of Rule 15(a)(1).
Renewal. A motion denied under this subdivision may be renewed at the close of the State’s evidence and at the close of all the evidence. A ground for severance that first becomes known during trial shall be raised as soon as it becomes known; a defendant who fails to do so waives it.
Relief Available. Upon a finding of prejudice the judge may sever counts, sever defendants, order separate trials in any sequence, exclude or redact the offending evidence, give a limiting instruction, or grant such other relief as justice requires. The judge shall order the least relief adequate to cure the prejudice found.
Conspiracy. A complaint for conspiracy to commit a substantive offense shall not be tried simultaneously with a complaint for the commission of the substantive offense, unless the defendant moves for joinder of such charges pursuant to subdivision (a) of this rule.
Charge of Treason; Severance Required Upon Demand for Jury Trial. A jury trial is available only upon a charge of treason, as provided by 6 R. Stat. §§ 131.111 and 131.306. Where a charge of treason is joined with any other charge and the defendant demands a jury upon the charge of treason, the judge shall sever the charge of treason for trial by a jury of six persons as provided by 6 R. Stat. § 131.114, and shall try the remaining charges to the court. No count other than treason shall be submitted to a jury.
Effect of Joinder, Consolidation, or Severance upon Time. Joinder or consolidation does not enlarge the seventy-two hour period prescribed by Rule 46(a); enlargement is available only under Rule 46(b) or upon a continuance granted under Rule 10. Upon severance, each severed charge and each severed defendant proceeds upon its own record, and the time already elapsed is charged to each severed matter as it stood at severance.
Waiver; Preservation. A motion under this rule is a pretrial motion governed by Rule 13. A ground for joinder or severance that reasonably could have been known when a pretrial motion was filed and that was not stated is waived, subject to relief for cause under Rule 13(a)(2) and to subdivisions (d)(2) and (d)(5) of this rule.