Substantial Compliance and the Co-Defendant Demurrer
by: Ryan • September 25, 2014 • no comments
The state has largely settled on its response to the co-defendant demurrer. For those of you just joining us, the co-defendant demurrer applies whenever co-defendants are jointly indicted but the charges for each aren't identical.
The state has, in the last couple of responses I've seen, largely conceded, even if only implicitly, that an indictment which falls into this category is in fact flawed. And the state makes a partial concession that one remedy is a demurrer. (I submit that's the only remedy but that's not the point of this discussion.)
What the state is claiming, however, is that a demurrer doesn't apply if the indictment is, per language right out of the joinder statute, in "substantial compliance." In support of this argument the prosecutor will insist that the error -- which again they are at least tacitly admitting to -- is one of form and not substance.
If substantial compliance means, "mostly complies with the law," then maybe they've got a point. Although one wonders how a trial judge is supposed to draw the line. But in fact substantial compliance means that the non-compliance does not impact a substantial right. And in fact these joint indictments do impact a substantial right. If the co-defendants are properly joined, the defendant would have to show substantial prejudice -- or perhaps a due process violation, assuming any daylight between those two standards -- to sever. If they aren't properly indicted -- or for that matter properly joined -- the defendant needs show no prejudice at all in order to obtain separate trials.
The non-compliance, in other words, results in a substantial burden shift to the defendant. In other words, there is a substantive impact. And as a result, the demurrer should be granted.
Please note that the state may respond that they could just indict separately and then join. I disagree. The prohibition against joint trials for co-defendants who aren't identically charged extends to those who are indicted separately, for the same reason the law prohibits joint indictments. And again, the state has tacitly conceded this point.
