Obsolete Date: 3/1/2006
If it appears that a defendant or the prosecution is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, 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 relief justice requires. In ruling on a motion by a defendant for severance the court may order the prosecuting attorney to deliver to the court for inspection in camera any statements or confessions made by the defendants which the prosecution intends to introduce in evidence at the trial.
Rule 14 was amended, effective March 1, 2006.
Rule 14 follows Fed.R.Crim.P. 14 in substance and controls with respect to the discretionary power of the courts of this state to grant relief from prejudicial joinder. It differs from the federal rule in that it includes the complaint with the indictment and information. For consistency with these rules, it also substitutes the words "prosecuting attorney" and "prosecution" for the words "attorney for the government" and "government."
Rule 14 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Rule 14 is a restatement of prior existing federal law under which severance and other similar relief was entirely discretionary with the court. Rule 14 is designed to promote economy and efficiency and to avoid a multiplicity of trials, where these objectives can be achieved without substantial prejudice to the right of defendants to a fair trial.
An issue raised in Rule 14 is when should the trial of multiple defendants be separated so that prejudice to the defendants will be avoided. Even though a danger of prejudice exists in all trials involving multiple defendants, the general rule is that public policy considerations in the administration of justice require that the severance be denied in the absence of a clear-cut showing of prejudice against which the trial court will not be able to afford protection. Under Rule 14, the duty of the court to grant a severance is a continuing one, which must be exercised in light of developments during the trial. If the original joinder was improper, Rule 14 confers no discretion—a severance must be ordered and failure to sever constitutes reversible error. If the original joinder was proper, then Rule 14 permits a severance in the discretion of the court.
Rule 14 must be considered in light of Rule 8 because in drafting Rule 8(a), the draftsmen followed the civil rules in providing for free joinder at the pleading stage while retaining within the court broad power to shape the trial to avoid prejudice. The three most common situations in which defendants seek relief from prejudicial joinder are: (1) confession of a co-defendant, (2) testimony of a co-defendant, and (3) conspiracy cases.
Rule 14 is similar to N.D.R.Civ.P. 42 (Consolidation; Separate Trials), in granting to the court the discretion to order a separate trial in order to avoid prejudice to the defendant and to protect the defendant's substantive rights.
SUPERSEDED: N.D.C.C. §§ 29-11-10.1, 29-11-50.