or, if it finds that effective deletions cannot practically be
made, it shall order separate trials of the defendants. R.
3:15-2(a)
Note that if the prosecuting attorney fails to so move
before trial, “the court may refuse to admit such
statement, confession or admission into evidence at trial,
or take such other action as the interest of justice
requires.” R. 3:15-2(a).
A severance should generally be ordered where
spouses are jointly indicted and it appears likely that one
will testify against the other. State v. Ospina, 239 N.J.
Super. 645 (App. Div.), certif. denied, 127 N.J. 321
(1990).
Counsel may waive a defendant’s severance rights
accorded by this rule without obtaining the defendant’s
own voluntary waiver. State v. Buonadonna, 122 N.J. at
35-43.
As a general rule, persons jointly indicted on similar
evidence should be tried together. State v. Sanchez, 143
N.J. 273, 281 (1996); State v. Brown, 118 N.J. 595, 605
(1990). The ordering of separate trials requires unusual
circumstances and the power to do so is entrusted to the
sound discretion of the trial court. Id. at 603; State v.
Scioscia, 200 N.J. Super. 28, 42 (App. Div. 1985), certif.
den., 101 N.J. 277 (1985). Review on appeal is limited:
denial of such a motion will not result in a reversal absent
a clear showing of prejudice or a mistaken exercise of the
trial court’s discretion. State v. Sanchez, 224 N.J. Super.
231, 245 (App. Div.), certif. den., 111 N.J. 653 (1988).
R. 3:15-2(b) provides relief from prejudicial joinder:
If for any other reason it appears that a defendant or the
State is prejudiced by a permissible or mandatory joinder
... of defendants in an indictment or accusation the court
may ... grant a severance of defendants, or direct other
appropriate relief.
Prejudice is the touchstone of a R. 3:15-2(b) motion
for severance. The “danger by association” which
underlies all joint trials is not, standing alone, a basis for
finding prejudice. State v. Brown, 118 N.J. at 605. Less
drastic measures than a severance, such as limiting
instructions, generally will suffice to cure any risk of
prejudice. State v. Scioscia, 200 N.J. Super. at 43.
Prejudice is not found merely because defendants may
have a better chance of acquittal in separate trials. State
v. Johnson, 274 N.J. Super. 137, 151 (App. Div.), certif.
denied, 138 N.J. 265 (1994); State v. Morales, 138 N.J.
Super. 225, 231 (App. Div. 1975).In order for a defendant to be granted severance on
the basis of conflicting defenses, he must demonstrate
that “the defenses are antagonistic at their core.” State v.
Brown., 118 N.J. at 606. The standard is a “rigorous
one.” Id. at 605-06. The determination of core
antagonism focuses on the “mutual exclusivity of
defenses,” i.e., “the defenses themselves, must force the
jury to choose between the defendants’ conflicting
accounts, and to find only one defendant guilty.” State
v. Johnson, 274 N.J. Super. at 151. It is not enough that
the defendants are hostile to one another or their defenses
conflict with each other. Id. at 151; State v. Sanchez, 224
N.J. Super. at 247-48.To obtain a severance based on the anticipated
exculpatory testimony of a codefendant, a defendant
must show that the codefendant is likely to testify at a
separate trial and that the testimony would exculpate
him. State v. Sanchez, 143 N.J. at 286-87; State v.
DeRoxtro, 327 N.J. Super. 212 (App. Div. 2000). Under
the Sanchez test, in order to be entitled to a severance on
the basis of a codefendant’s anticipated exculpatory
testimony, the court must be “reasonably certain that (1)
the defendant will call his codefendant as a witness in a
separate trial; (2) the codefendant, although unwilling to
testify at a joint trial, will testify at a separate trial either
prior to or subsequent to his own trial; and (3) that
codefendant’s proffered testimony will be credible and
substantially exculpatory.” State v. Sanchez, 143 N.J. at- A court reviewing such a motion should focus on
“the exculpatory value of the proffered testimony” and
not on “whether the defendant requests to be tried before
his codefendant.” Ibid.
Situations where severance was deemed appropriate
involved the admission of evidence at a joint trial which
had been suppressed for purposes of use by the
prosecution, State v. Morant, 241 N.J. Super. 121 (App.
Div.), certif. denied, 127 N.J. 323 (1990); and an
unwieldy number of defendants (27) who would have
been tried together in a single indictment creating a
“mega” trial, State v. Garafola, 226 N.J. Super. 657 (Law
Div. 1988).