Due Process Joinder Issues

This wikilog article is a draft, it was not published yet.

by: Thad Betz • September 10, 2016 • no comments

We’ve all been there: clients facing a slew of crimes against alleged victim #1 and a slew of crimes against alleged victim #2. These could have been joined in the same indictment, or they could have been separate charging documents joined together. The result is the same---you are left thinking, after reading a pretty depressing joinder severance statute, ORS 132.560, that the cases or counts will remain joined together and that your client won’t get a fair trial. Its true, they won’t. And that fundamental fairness is at the core of the argument we need to be making (as Ryan earlier noted.) It seems there are at least three different places that due process comes into play: (1) reading due process into the subfactors allowing joinder, (2) weighing whether or not joinder itself can provide for a fair trial using Rule 403, and (3) crafting specific trial procedures and jury instructions in the event of a joinder of wholly separate incidents.

First, as we all know, joinder is only appropriate if it fits within one of the three statutory criteria and does not result in substantial prejudice. ORS 132.560(b). The joined offenses must be: (A) of the same or similar character, (B) based on the same act or transaction, or (C) [based] on two or more acts or transactions connected together or constituting parts of a common scheme or plan. It seems that at least some federal district courts have read balancing and other bad acts into their analysis of “same or similar character”. For example, In United States v. Buchanan, 930 F.Supp 567, the Court held that two separate instances of bank fraud were improperly joined together, although they all involved deceitful actions by a bank owner and other loans he executed in a partnership. The Court held that the “same or similar character” provision “must be narrowly applied to situations where permitting joinder will not lead to the sort of prejudice addressed in Rule 404(b). The Court wrote:

Put simply, one way of evaluating a Rule 8(a) “similar character” joinder, is to pose the question in terms of Rule 404(b): If the government had charged only the misapplication of bank funds related to Buchanan's role as Bank President, could the government introduce evidence of malfeasance in connection with the Canal Street Associates Limited Partnership? The answer is clearly “no.” Id. at 666.

In essence, if the evidence from one indictment is not admissible in the other, the cases are not of “same or similar character.” See also United States v. Randazzo, 80 F.3d 623, fn 1 (1996) (About the best one can say is that in such cases the evidence of one crime is more likely to be independently admissible, on theories reflected in Fed.R.Evid. 404(b), in proving the other, “similar” crime. E.g., United States v. Shue, 766 F.2d 1122, 1134 (7th Cir.1985). See also McElroy v. United States, 164 U.S. 76 (1896) (discussing “same class of crime” provision)). When reading Buchanan and Randazzo, you cannot be left without the impression that the Court is detecting a fairness issue and using the rules of evidence to inform their decision on joinder. As one opinion essentially noted, if we’re not going to read some limitations into “same or similar character”, the door would be cast open so wide as to be meaningless.

Second, when assessing whether or not joinder is appropriate, argue outside ORS 132.560. In the vast majority of cases, the statute is wholly unhelpful to the defense anyway. And, as Ryan noted in his post, if we’ve learned anything from State v. Williams, its that other act evidence triggers due process considerations, and joinder is, at its core, other act evidence. Here is an excerpt from a recent brief I wrote that can act as a starting point for those with better writing skills:

As noted above in Johnson, supra, ORS 132.560 was adopted to be congruent with Federal Rule 8 and essentially contains the exact same language for joinder. However, the compatibility between Oregon and the Federal rules diverge with respect to severance. Whereas Oregon requires “substantial prejudice” to sever, Federal Rule 16 merely requires prejudice to either party. In sum, if joinder has been made so liberal, as ORS 132.560 intends, severance cannot have an unequally high burden without running afoul of “fundamental fairness.” To that end, Defendant objects to joinder under the due process clause of the 5th and 14th Amendments.

Relatedly, in State v. Williams, the Oregon Supreme Court weighed in on “other bad acts evidence in OEC 404(4). 357 Or 1 (2015). Simply put, this rule allows for the introduction of character evidence against the defendant “if relevant.” Although absent from Rule 404, the Court found that the due process clause compelled a Rule 403 balancing prior to admission of “other bad acts evidence.” The Court summarized the due process requirements in Williams as follows:

In our view, the only way that a court can ensure that the admission of “other acts” evidence is not unfairly prejudicial and a violation of “fundamental concepts of justice” is to conduct OEC 403 balancing. We therefore hold that that balancing *19 is required by **465 the Due Process Clause. Even if due process does not categorically prohibit the admission of “other acts” evidence to prove propensity in prosecutions for child sexual abuse, it at least requires that, on request, trial courts determine whether the probative value of the evidence is outweighed by the risk of unfair prejudice. Id. at 19.

Because joining a trial together in this circumstance has equal effect as the admission of other bad acts, such joinder cannot constitutionally be accomplished without a Rule 403 balancing. To do otherwise would violate the fairness guarantees of the United States Constitution. Indeed:

The Supreme Court also has explained that “[t]he term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). In Old Chief, the Court recognized that such improper grounds include “generalizing a defendant's earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged.” Id. Although the Court was not deciding a constitutional issue in Old Chief, its discussion demonstrates how the Court characterizes the prejudice posed by “other acts” evidence. As the Court recognized in Dowling, 493 U.S. at 352, 110 S.Ct. 668, the violation of due process that may result from such unfair prejudice is obviated by the application of a rule of evidence that permits a court to consider the risk of prejudice and exclude the evidence when appropriate.

Id. at 17. Therefore, in the instant matter, the Court must engage a Rule 403 balancing prior to allowing the joinder. Otherwise, such joinder violates the Defendant’s right to fair trial under the 5th, 6th, and 14th Amendments to the United States Constitution.

Just recently, the Court of Appeals touched on this issue in State v. Buyes, 280 OR App 564 (2016). There, the Defendant objected to joinder of two different victims in a sex abuse case. One of the arguments against joinder is summarized and dismissed in a footnote:

Defendant also argues that joining his cases subjected him to “loss of the protection” of OEC 404(3), Oregon’s prohibition against other “bad acts” evidence.

But the Supreme Court has essentially foreclosed that argument for the reasons described in State v. Miller, 327 Or 622, 632, 969 P2d 1006 (1998). There, the

court explained that, when charges against a defendant are “joined lawfully for trial,” the evidence of defendant’s criminal conduct is “relevant to prove that defendant had perpetrated the particular offenses to which that evidence pertain[s].” Id. The court reasoned that “[t]hat qualifies as a valid noncharacter purpose that supports admission of the state’s evidence of defendant’s criminal acts” and, accordingly, “admission of that evidence would not violate OEC 404(3) [.]” Id. Here, as in Miller, the evidence concerning K and J was admissible for the nonpropensity purposes of proving the particular charges concerning each victim and did not constitute “bad acts” evidence prohibited by OEC 404(3).

So, just read those passages from Miller a few times. They’re absurd—the only phrase coming to mind is “standardless standard”. However, note that the Court doesn’t hold that 404(3) has no application, just that there is a valid non-character purpose. Well, fine. But in doing so, that also also necessarily concludes that the 404(3) applies to a decision on joinder—and therefore should also trigger a Rule 403 balancing test, just as in Williams.

Last, failing all of these arguments about joinder and severance, there remains the issue of whether or not trial courts ought to be conducting trials with different procedures than we are accustomed to, in order to comport with the due process clause and provide defendants with that fundamentally fair trial. Justice DeMuniz, as he does, provided us a virtual play-by-play of what arguments to make in State v. Tidwell, 259 Or App 152 (2013). Tidwell was prosecuted for two different DUII’s from two different incidents. DeMuniz begins by noting:

The majority in this case has correctly interpreted and applied the case law from this court [regarding joinder of the two DUIIs]. However, as my analysis of the complete record reveals, this court’s case law, focusing only on the pretrial record, is not adequate to ensure that a defendant, subject to joinder, has received a fair trial. In this case, the fair trial protections mentioned by the trial court in denying defendant’s motion to sever were never realized at trial.

DeMuniz went on to detail that a trial Court should provide instruction to the jury that the jury consider each charge separately, point out what pieces of evidence are directed at which charge, and allow for separate opening and closing arguments. We are well guided to take his suggestions and advance these arguments to trial courts.