COURT FOR THE COUNTY OF 
| Chapter 11: Severance of Charges and Defendants |
There are two kinds of severance issues that counsel should consider: severance of charges and severance of
co-defendants. The court rules which apply are
11-2 Mandatory Severance of Charges
11-3 Mandatory Severance of Defendants
One example of prejudice to a substantial right that requires severance of co-defendants is when there are antagonistic defenses. People v Hurst, 396 Mich 1 (1976); People v Stanley Jackson, 158 Mich App 544, 555 (1987). A defense is deemed antagonistic when it appears that a codefendant may testify to exculpate himself and to incriminate the defendant. Severance is required if the trial court finds a serious risk that a joint trial would compromise a specific trial right of one defendant, or would "prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v US, 506 US 534; 113 SCt 933; 122 LEd2d 317 (1993). The defendant must show that joinder will prejudice substantial rights. People v Hana, 447 Mich 325 (1994). Defenses must be mutually exclusive or irreconcilable. People v Cadle On Remand, 209 Mich App 467 (1995); People v Perez-DeLeon and Velez-Ruiz, 224 Mich App 43 (1997). Your motion for severance based on antagonistic defenses must be specific and supported by attachments describing the inconsistency. People v Harris, 201 Mich App 147, 153 (1995).
Another reason to sever defendants is when the prosecution's use of a codefendant's confession which implicates the defendant at a joint trial will constitute prejudicial error despite clear, concise and understandable instructions that the confession could only be used against the codefendant and must be disregarded with respect to the defendant. Bruton v United States, 391 US 123; 88 SCt 1620; 20 LEd2d 476 (1968). However, if the confessions of codefendants are interlocking (more than one confession and they are similar as to facts but perhaps differ as to the level of culpability of each defendant), then severance is not required. Parker v Randolph, 442 US 62; 99 SCt 2132; 60 LEd2d 713 (1979); People v Hartford, 117 Mich App 413 (1982). Again, the burden is on the defendant to show that the confession of the codefendant incriminates him and is not interlocking.
Where severance is not warranted, separate juries can be requested. Dual juries should be used where defendants demonstrate inconsistent defenses, rather than "mutually exclusive or irreconcilable" defenses. People v Hana, 447 Mich 325 (1994); People v Brooks, 92 Mich App 393 (1979).
11-4 Discretionary Severance of Charges or Defendants
Even if severance is not mandatory, the court has the authority to sever charges or defendants "to promote
fairness to the parties and a fair determination of the guilt or innocence of one of the defendants." The court
will consider the timeliness of the motion, the drain on parties' resources, the potential for confusion or
prejudice, the complexity or nature of the evidence, the convenience of the witnesses and the parties' readiness
for trial.
In the four sample motions which follow, mandatory and discretionary severance are addressed separately. If you are concerned about winning a motion for mandatory severance, you may decide to ask the court for discretionary severance, in the alternative, in the same motion.
11.2 Motion for Severance of Charges (mandatory) [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF ____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
____________________________________/
The Defendant, 
, by 
attorney, moves this Court to sever the charges against 
and order separate trials on each charge, pursuant to 
right to due process,
1. 
is charged with 
.
2. These charges are not based on the same conduct, nor are they connected or constituting a single scheme or plan.
3. Because the offenses are unrelated, the court must sever them for separate trial.
4. To allow the prosecution to proceed against 
on all charges at once would severely
prejudice 
. 
.
For these reasons, 
requests that this motion to sever charges be granted and that
receive separate trials.
Respectfully submitted,
___________________
Attorney for Defendant
11.3 Motion for Severance of Defendants (mandatory) [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
___________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
___________________________________/
The Defendant, 
, by 
attorney, moves this Court to sever 
trial from
the codefendant(s), pursuant to 
right to due process,
1. 
is charged with 
.
2. Based on
the codefendant(s) defense is antagonistic to the Defendant's defense. People v Hurst, 396 Mich 1 (1976). The defenses are mutually exclusive or irreconcilable. People v Cadle On Remand, 209 Mich App 467 (1995). People v Harris, 201 Mich App 147, 153 (1993).
3. The codefendant(s) confession implicates 
. 
. As a result, the
introduction of the codefendant's statement will compromise 
state and federal
constitutional confrontation rights. Bruton v US, 391 US 123; 88 SCt 1620; 20 LEd2d 476 (1968).
4. To allow the prosecution to proceed against 
and 
codefendant(s) would
severely prejudice substantial rights of 
. People v Hana, 447 Mich 325 (1994).
For these reasons, 
requests that this Court grant 
motion for a separate trial.
Respectfully submitted,
___________________
Attorney for Defendant
11.4.a Motion for Severance of Charges (discretionary) [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
_____________________________________/
The Defendant, 
, by 
attorney, moves this Court to sever the charges against 
and order separate trials on each charge, pursuant to 
right to due process and
1. 
is charged with 
.
2. This motion is timely. 
.
3. To try these charges together will be a drain on 
resources. 
.
4. There is a great potential for confusion. 
.
5. There is a great potential for prejudice. 
.
6. The evidence is complex. 
.
7. The nature of the evidence is such that it will be too difficult for the jurors to separate which evidence applies
to which charge. 
.
8. Trying the charges together will be inconvenient to defense witnesses. 
.
9. The defense cannot be ready to try all charges on the trial date of 
.
.
10. This Court should use its discretionary authority to grant the Defendant separate trials for each offense. MCR 6.120(C). People v Tobey, 401 Mich 141 (1977).
For these reasons, 
requests that 
motion to sever charges be granted and that 
receive separate trials on 
.
Respectfully submitted,
___________________
Attorney for Defendant
11.4.b Motion for Severance of Defendants (discretionary) [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
____________________________________/
The Defendant, 
, by 
attorney, moves this Court to sever 
trial from
the codefendant(s), pursuant to
1. 
is charged with 
.
2. Trial of 
with 
codefendant(s) will prejudice 
.
3. This motion is timely. 
.
5. To try all these charges at once would be a drain on the Defendant's resources.
6. There is a great potential for confusion. 
7. There is a great potential for prejudice. 
8. The evidence is complex. 
9. The nature of the evidence is such that it will be too difficult for the jurors to separate which evidence applies
to which charge. 
10. Joint trial will be inconvenient to defense witnesses. 
.
11. The defense cannot be ready to try all charges by 
, the date presently set for trial.
12. This Court should use its discretionary authority to grant 
a separate trial,
For these reasons, 
requests that this motion for a separate trial be granted.
Respectfully submitted,
___________________
Attorney for Defendant