When counts are properly joined in an indictment, and the defendant seeks severance based on prejudice, the The Severance Chimera for the defense.
(When you have counts that are improperly joined, you should read Improper Joinder Demurrer: Dismissal, Not Severance and A Strategic Demurrer Updated w/ sample demurrer .)
But last week, the COA issued an opinion where joinder came back to bite the state. It was a sex case. The alleged victims were the defendant's wife's two grandchildren. The trial court made a Southard/Lupoli error regarding one child, and the question for the COA was whether to reverse the convictions involving both children.
[B]ecause--as we concluded above--K's diagnosis likely affected the jury's conclusion about the credibility of K's testimony concerning his abuse, did that conclusion have the ancillary consequence of affecting the jury's determination of whether E's testimony about her abuse was also credible?
The court concluded it did.
Self-evidently, the convictions involving E would not have been overturned if the counts hadn't been joined. The question is, can this holding go beyond just those issues involving credibility of a complainant? If the defendant's confession regarding one child is erroneously admitted, would that require reversal of the counts involving the other child? If a bad eyewitness ID results in a robbery conviction being overturned, would that justify overturning a different conviction from a different day that had been joined with the first, if the bad ID from the first implicitly provided support for the second? Who knows, but it should perhaps be something you raise with the trial court in justifying severance. "Lots of very tricky issues, Judge, in this one case, but not the other. Why take the chance?"
The trial attorney should also put on the record how the evidence presented in one case would impact the evidence in the other.
And we shouldn't assume that trial courts are no longer making Lupoli/Southard type mistakes. In State v. Vidal, the COA noted:
In sum, Southard left open the question of whether OEC 403 would require exclusion of medical testimony of child sexual abuse where physical evidence supports an expert's opinion. Lovern, likewise, left that question unanswered.
My personal feeling is that the answer to the open question will be "depends." I had a case where the diagnosis was made largely based on the credibility of the complainant, but the physical evidence -- while it was disputable -- did exist. Nevertheless, the ambiguous physical characteristics were a secondary consideration. If the judge were to let in the diagnosis, I think I'd have good grounds for a reversal. But I'd predict a different result if the physical evidence was less ambiguous.
In other words, we won't get a Southard/Lupoli bright-line rule, but we will have objections that will win on appeal some of the time.
So, be sure to file a motion to exclude the diagnosis even when there is "some" physical evidence, and if you win on appeal, and there's more than one complainant, you may get more reversals than you would otherwise expect.