The Severance Argument You Need to Start Making

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

by: Ryan • May 5, 2016 • no comments

Assume the following facts. Defendant is charged in two different counties with sex crimes against two different victims (one per county). He goes to trial in the first county and he's convicted.

He goes to trial in the second county, and the state seeks to offer evidence of his prior conviction. So the court does a Williams balancing, which means it applies the current due process analysis, which it describes as follows:

In a prosecution of child sexual abuse, the federal constitution requires that a trial court determine whether the risk of unfair prejudice posed by the evidence outweighs its probative value under OEC 403.

Okay, next hypothetical. Defendant is charged with the same counts of sexual abuse, same victims, but now they are charged in the same county. State wants to join them for trial (or includes them in the indictment). You move for severance. What's the standard for severance?

According to ORS 132.560:

If it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses under subsection (1) or (2) of this section, the court may order an election or separate trials of counts or provide whatever other relief justice requires.

And as you know if you've been practicing law for more than 6 months, "substantial prejudice" is a nearly impossible burden to meet.

Here's the argument I recommend you make:due process requires applying the "other bad act" standard when deciding severance. That's because counts from separate criminal episodes that are joined for trial are still "other bad acts" regardless of whether the state needs to prove them by a preponderance or by proof beyond a reasonable doubt. The Oregon statutes may favor joinder, but I see no reason Oregon statutes should raise the standard under the due process clause.

Furthermore, in doing the balancing, the court still needs to determine and evaluate the evidentiary value of one crime joined with another, and if there is none, the court should sever. Further, under Baughman, the balancing test is specific to the evidentiary reason given for the admissibility of one count against the other.

But judge, the prosecutor might say, the statute says we don't have to give an evidentiary basis for joinder of similar crimes. But I think they do, under the due process clause.

If you lose that argument, it is then important to ask the court for a limiting instruction that only allows the jury to consider evidence of count 1 for very limited reasons when evaluating count 2.

It's possible that if the judge did the proper balancing and gave the proper instruction then your client might only experience a marginal benefit. But there's an old joke I recall from an old Archie comic about the weather. Archie: Why aren't you carrying an umbrella, Jughead? Weatherman said there was an 80% chance of rain. Jughead: Sure, but he only has a 50% chance of being right.

Assuming my analysis is correct, the chances of a judge screwing up the balancing or the jury instructions is more likely higher than 50%.