3 Ways for Denver Drug Attorneys to Sever Cases with Co-Defendants

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In Denver drug cases, charges are often filed against one or more codefendants. In these types of cases, one of the on-going considerations for a Denver Drug Attorney is whether to seek a severance.

The right to have a severance comes from the Colorado Legislature which passed the following law (section 16-7-101):

When two or more defendants are jointly indicted or informed against for any offense and there is material evidence, not relating to reputation, which is admissible against one or some of them but which is not admissible against all of them if they are tried separately and which is prejudicial to those against whom it is not admissible, those against whom such evidence is admissible shall be tried separately upon motion of any of those against whom the evidence is not admissible. In all other cases, defendants jointly prosecuted shall be tried separately or jointly in the discretion of the court.

There are many reasons for seeking a severance but as seen in the Statute above, a defendant may have an automatic right to a severance in situations where there are incompatible facts that do not overlap. The reason for severance in these two situations is that facts may be relevant in one defendant’s case but not in another defendant’s case. Naturally, if a great deal of facts are relevant to one defendant but not the other, their introduction may cause a great deal of bias and prejudice against a defendant and could result in an unfair trial for the defendant.

As such, there is mandatory severance in Colorado when the following two-pronged test is satisfied: (1) there must be material evidence admissible against one but not all of the parties; and (2) admission of that evidence must be prejudicial to the defendant against whom the evidence is not admissible. People v. Gonzales, 198 Colo. 450, 601 P.2d 1366 (1979); see § 16-7-101, C.R.S. (1978 Repl.Vol. 8); Crim.P. 14.

Additionally, a Judge has very little discretion about whether to grant a severance under these circumstances. Accordingly, a “defendant is entitled to severance of trial as a matter of right if there is evidence that is admissible against one but not all of the parties and if the evidence is prejudicial to the defendant against whom the evidence is not admissible.” People v. Montoya, 942 P.2d 1287 (Colo. App. 1996).

In Colorado, there is great reluctance by judges to grant severances because it is not judicially efficient to conduct multiple trials covering a great deal of the same issues. By presenting the argument that the facts are vastly different between the defendants, it is possible to demonstrate to the judge that there is no judicial savings by trying the cases together. Rather, there will only be bias and prejudice which could result in a successful appeal and a less judicially efficient solution. As such, the argument can be presented in a light that makes severance not only better for the defendant but also better for the court.

Another argument that a Colorado Drug Attorney may use to seek a severance is that a codefendant made a statement that implicates you in the crime. The severance, under this set of circumstances would be sought based on the inability of the defendant to confront the codefendant who does not have to take the stand due to his constitutional right to remain silent. Note that this defense should not be brought under an evidentiary right because the statement would be admissible under the Colorado Rules of Evidence. The severance must be sought on the Constitutional premise.

A third argument for severance is common in conspiracy cases and comes from 18-2-202 of the Colorado Revised Statutes. This section states the general procedure for a court to use when determining whether co-defendants can be prosecuted together or whether the cases should be severed. This statute states:

  1. Subject to the provisions of subsection (2) of this section, two or more persons charged with criminal conspiracy may be prosecuted jointly if:

    (a) They are charged with conspiring with one another; or

    (b) They are charged with being involved in conspiracies that are so related as to constitute different aspects of a scheme of organized criminal conduct. In such case it is immaterial that the persons charged are not parties to the same conspiracy.

    (2) In any joint prosecution under subsection (1) of this section:

    (a) No defendant shall be charged with a conspiracy in any judicial district other than one in which he entered into the conspiracy or in which an overt act pursuant to such conspiracy was done by him or by a person with whom he conspired; and

    (b) Neither the liability of any defendant nor the admissibility against him of evidence of acts or declarations of another shall be enlarged by this joinder; and

    (c) The court shall order a severance or take a special verdict as to any defendant who so requests, if it deems it necessary or appropriate to promote the fair determination of his guilt or innocence.

It should be noted that this statute is heavily based in the facts. As such, it is important to argue the unique facts of your case and how the differences between the co-defendants will cause problems for you such as “enlargement” of evidence of acts or declarations or will create a situation where you will not be able to receive a fair determination of guilty or innocence.

Due to the seriousness of these types of cases and the criminal penalties in Colorado for drug offenses with co-defendants, it is important that you talk to a Criminal Defense Attorney in Denver who handles drug cases about your options.

The information in this post is for informational purposes only and should not be construed as legal advice or as the creation of an attorney-client relationship. For legal advice, please contact an Attorney.

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Nathaniel has worked in criminal law on both sides of the aisle spending time working for the prosecution as well as the defense. Most recently Nathaniel has represented individuals in violent felonies and drug cases. Prior to this work, Nathaniel handled DWIs, Domestic Violence Cases, Property Crimes, and White Collar Crimes. On the prosecutorial side, Nathaniel has most notably worked in Bosnia helping to prosecute individuals who committed war crimes and crimes against humanity in the Bosnian War from 1993-1995. In particular, Nathaniel helped in the prosecution of military leaders who arranged for the organized murders and rapes of innocent civilians in various towns in Bosnia. Nathaniel is a graduate of the University of Texas School of Law, Northwestern University, and Phillips Exeter Academy. Google Profile: Nathaniel Baca