MOTION TO SEVER COUNTS

COURT INFORMATION

Court Name: ________________________________________________

Case Number: ________________________________________________

Judge: ________________________________________________

Trial Date: ________________________________________________

DEFENDANT INFORMATION

Defendant Name: ________________________________________________

Date of Birth: ________________________________________________

Charges/Counts:

Count	Charge	Statute	Date of Offense
1	_________________________	_____________	_____________
2	_________________________	_____________	_____________
3	_________________________	_____________	_____________
4	_________________________	_____________	_____________
5	_________________________	_____________	_____________

COUNSEL INFORMATION

Defense Attorney: ________________________________________________

Bar Number: ________________________________________________

Address: ________________________________________________

Phone: ________________________________________________

Email: ________________________________________________

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I. INTRODUCTION

COMES NOW the Defendant, _________________________, by and through undersigned counsel, and moves this Honorable Court pursuant to [Federal Rule of Criminal Procedure 14 / State Rule ___] for an Order severing the counts in this indictment/information for separate trials. In support thereof, Defendant states as follows:

II. COUNTS SOUGHT TO BE SEVERED

Group A (to be tried separately):

☐ Count(s) _____________ charging _____________________________________________

Group B (to be tried separately):

☐ Count(s) _____________ charging _____________________________________________

Group C (to be tried separately): (if applicable)

☐ Count(s) _____________ charging _____________________________________________

III. LEGAL STANDARD

A. Federal Rule of Criminal Procedure 8(a) - Joinder of Offenses

Rule 8(a) permits joinder of offenses in the same indictment only if they:

1. Are of the "same or similar character"; OR
2. Are "based on the same act or transaction"; OR
3. Are "connected with or constitute parts of a common scheme or plan"

If joinder does not meet ANY of these standards, it is MISJOINDER and severance is mandatory.

B. Federal Rule of Criminal Procedure 14 - Relief from Prejudicial Joinder

Rule 14(a) provides that even if joinder is proper under Rule 8, "if the joinder of offenses... appears to prejudice a defendant..., the court may order separate trials of counts... or provide any other relief that justice requires."

C. Standard of Review

☐ Misjoinder (Rule 8 violation): If joinder is improper, the court has no discretion and MUST grant severance.

☐ Prejudicial Joinder (Rule 14): If joinder is proper but prejudicial, severance is within the court's discretion after balancing prejudice against judicial economy.

D. Burden of Proof

• It is the government's burden to show that initial joinder is proper under Rule 8.
• The question of proper joinder is determined from the face of the indictment.
• Once prejudice is shown, the government must demonstrate that the prejudice can be cured by less drastic measures than severance.

IV. ARGUMENT

A. IMPROPER JOINDER UNDER RULE 8(a)

(Complete this section if arguing joinder was improper from the outset)

☐ The joined counts do not meet ANY of the Rule 8(a) joinder standards:

1. Counts Are NOT of the Same or Similar Character

☐ The counts involve different types of offenses:
- Count(s) _____ involve(s): _____________________________________________
- Count(s) _____ involve(s): _____________________________________________

☐ The counts involve different alleged victims: _________________________________

☐ The counts involve different methods or modus operandi: _______________________

☐ The counts involve different time periods:
- Count(s) _____: _____________ to _____________
- Count(s) _____: _____________ to _____________

☐ The only similarity is that they involve the same defendant

2. Counts Are NOT Based on the Same Act or Transaction

☐ The counts arise from separate and distinct incidents

☐ The incidents occurred on different dates: ____________________________________

☐ The incidents occurred at different locations: _________________________________

☐ The incidents involve different circumstances: ________________________________

☐ No single act forms the basis for multiple counts

3. Counts Are NOT Part of a Common Scheme or Plan

☐ There is no overarching plan connecting the offenses

☐ The offenses are not interdependent

☐ The evidence for one count is not necessary to prove another count

☐ The counts represent isolated incidents, not a pattern

Because joinder was improper under Rule 8(a), severance is MANDATORY.

B. PREJUDICE FROM JOINDER (RULE 14)

(Complete this section if arguing joinder, even if proper, causes undue prejudice)

1. Spillover/Cumulative Effect

☐ The jury will likely cumulate evidence from multiple counts

☐ Weak evidence on one count will be bolstered by evidence on other counts

☐ The cumulative effect creates unfair inference of criminal propensity

☐ Specific prejudice: ________________________________________________

2. Jury Confusion

☐ The jury will be unable to compartmentalize evidence

☐ Different legal standards apply to different counts: _____________________________

☐ Different elements must be proven for different counts: __________________________

☐ The complexity will prejudice fair consideration of each count

☐ Number of counts (___) makes individual consideration impractical

3. Propensity Evidence Problem

☐ Evidence on one count would be inadmissible as propensity evidence if counts were tried separately

☐ Joinder effectively allows the prosecution to use character evidence in violation of [Fed. R. Evid. 404(b) / State equivalent]

☐ The charges create an inference that defendant has a criminal character

☐ Specific propensity inference: ________________________________________________

4. Different Defenses

☐ Defendant has different defenses to different counts

☐ Defense to Count(s) _____: ________________________________________________

☐ Defense to Count(s) _____: ________________________________________________

☐ Presenting both defenses may create inconsistency prejudicing credibility

☐ Defendant must choose between effective defenses

5. Disparity in Strength of Evidence

☐ Evidence is substantially stronger on Count(s) _____ than on Count(s) _____

☐ Weak counts would not survive independent scrutiny

☐ The jury will convict on weak counts based on evidence from strong counts

6. Inflammatory/Prejudicial Nature of Certain Counts

☐ Count(s) _____ involve(s) particularly inflammatory allegations

☐ Nature of inflammatory evidence: ________________________________________________

☐ This evidence would prejudice fair consideration of other counts

☐ Limiting instructions cannot cure the emotional impact

C. INADEQUACY OF LIMITING INSTRUCTIONS

☐ Limiting instructions are insufficient to cure the prejudice because:

☐ The prejudice is too severe to be cured by instructions

☐ Human nature makes it impossible to disregard evidence already heard

☐ The instruction would highlight the very evidence causing prejudice

☐ The trial will be complex/lengthy, making adherence to instructions impractical

☐ The evidence on one count is so compelling it will inevitably color consideration of other counts

☐ Research demonstrates jurors often cannot follow such instructions: _________________

V. REQUESTED SEVERANCE GROUPINGS

Defendant requests the following counts be tried separately:

Trial 1: Count(s) _____________ [Description: _________________________________]

Trial 2: Count(s) _____________ [Description: _________________________________]

Trial 3: Count(s) _____________ [Description: _________________________________] (if applicable)

Rationale for grouping:

________________________________________________

________________________________________________

VI. BALANCING OF INTERESTS

A. Defendant's Constitutional Rights

☐ Defendant has a Fifth Amendment right to due process

☐ Defendant has a Sixth Amendment right to a fair trial

☐ These rights outweigh interests in judicial economy

☐ A defendant may not be made to "run the gantlet" of cumulative charges

B. Judicial Economy

☐ Separate trials would not significantly burden the court because:
- Many witnesses are specific to particular counts
- Evidence is distinct for different count groupings
- Separate trials may actually be more efficient

☐ Even significant judicial burden cannot outweigh constitutional rights

☐ Alternative scheduling can minimize court burden: ________________________________

C. Witness Considerations

☐ Witnesses specific to Count(s) _____: ________________________________________

☐ Witnesses specific to Count(s) _____: ________________________________________

☐ Overlapping witnesses: ____________________________________________________

☐ Witness burden is minimal for separate trials

VII. EXHIBITS

☐ Exhibit A: Indictment/Information

☐ Exhibit B: Summary Chart of Counts and Evidence

☐ Exhibit C: Case Law Supporting Severance

☐ Exhibit D: Proposed Trial Schedule for Separate Trials

☐ Exhibit ___: ________________________________________________

VIII. CONCLUSION

The joinder of Count(s) _____________ with Count(s) _____________ is ☐ improper under Rule 8(a) and must be severed / ☐ prejudicial to Defendant and should be severed under Rule 14. A joint trial on all counts would deprive Defendant of the constitutional right to a fair trial by [creating spillover prejudice / confusing the jury / allowing improper propensity evidence / other: _____________].

WHEREFORE, Defendant respectfully requests that this Honorable Court:

1. Grant this Motion to Sever Counts;

2. Order that Count(s) _____________ be tried separately from Count(s) _____________;

3. Set separate trial dates; and

4. Grant such other relief as the Court deems just and proper.

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Respectfully submitted,

________________________________________
Attorney for Defendant

Date: _______________________

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CERTIFICATE OF SERVICE

I hereby certify that on _____________, a true and correct copy of the foregoing Motion to Sever Counts was served upon:

_________________________ [Prosecuting Attorney]
_________________________
_________________________

By: ☐ Hand delivery ☐ First-class mail ☐ Electronic filing/service ☐ Fax

________________________________________
Attorney for Defendant

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STATE-SPECIFIC VARIATIONS

Federal Courts (Rules 8(a) and 14)

• Joinder standards in Rule 8(a) strictly construed
• "Same or similar character" requires substantial similarity
• Court has broad discretion under Rule 14
• Defendant must show "real prejudice" not merely better chance of acquittal

California (Penal Code § 954)

• Joinder permitted for offenses of "same class" or "connected together"
• Cross-admissibility test often applied
• People v. Soper: Evidence must be admissible in separate trials

New York (CPL § 200.20)

• Joinable if "same or similar in law"
• Or if based on same criminal transaction
• Or if proof of one is material to proof of another

Texas (Code of Criminal Procedure Art. 3.01, 3.02)

• More restrictive joinder rules
• Offenses must arise from "same criminal episode"
• Defendant can elect separate trials for certain offense combinations

Florida (Rule 3.150, 3.152)

• Offenses must be triable in same court
• Same or similar character, based on same act, or part of common scheme
• Severance "to promote a fair determination of guilt or innocence"

Illinois (725 ILCS 5/111-4)

• Joinder if offenses are based on same act
• Or on two or more acts which are part of same comprehensive transaction
• Severance if "prejudicial to defendant"

Pennsylvania (Pa.R.Crim.P. 582, 583)

• Joinder if offenses are of same or similar character
• Must involve the same or similar manner of acquisition of evidence
• Severance within court's discretion

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PRACTICE NOTES