No, you can't literally get rid of your co-defendant in a criminal case, but you may be able to obtain a trial that is separate from your co-defendant's. However, the process of separating co-defendants in Georgia criminal cases is called severance, and severance of criminal trials, at least in Georgia, involves a substantial amount of discretion by the trial court judge.
The trial court did not err in denying appellant's motion to sever his trial from that of his two co-defendants. The question of whether to grant a severance in a joint trial for a capital crime in which the death penalty is not sought is within the discretion of the trial court.3 In determining whether to grant a motion to sever, a trial court should consider: (1) whether the number of defendantswill confuse the jury as to the evidence and the law applicable to each defendant; (2) whether, despite cautionary instructions from the court, there is a danger that evidence admissible against one defendant will be improperly considered against another defendant; and (3) whether the defenses of the defendants are antagonistic to each other or to each other's rights of due process.4 It is incumbent upon the defendantwho seeks a severance to show clearly that he will be prejudiced by a joint trial, and in the absence of such a showing, the trial court's denial of a severance motion will not be disturbed.5
6 In this matter, all three defendants played a separate role in the assaults and murder at issue, and the evidentiary facts and the law applicable to each defendantwere substantially the same.6 Merely because three defendants are tried together is not cause for a severance.7 Appellant does not attempt to explain how the fact that all three co-defendants were jointly tried caused the jury to be confused, and after reviewing the record, we can discern no evidence of jury confusion, either. Similarly, the record reveals no likelihood that evidence introduced against one defendant was improperly considered against a co-defendant. Furthermore, the fact that both co-defendants gave testimony that implicated appellant in the victim's murder, standing alone, is not sufficient reason to grant a severance.8 Both co-defendants were subject to cross examination by appellant's counsel, and their testimony would have been admissible even if appellant had been tried separately.9Finally, appellant does not attempt to explain how the antagonistic defenses of his co-defendants prejudiced his rights of due process. This Court has previously held that unless there is a showing of resulting prejudice, antagonistic defenses do not automatically require a severance.10 Having reviewed the record in its entirety, we find no indication that the opposing defenses in this matter caused harm to appellant. Therefore, we conclude that the trial court did not err in denying appellant's motion to sever.
Green v. State, 274 Ga. 686, 687-88, 558 S.E.2d 707, 708-09 (2002).
Effectively arguing for severance is something that must be carefully planned. Because of the great amount of discretion given to the trial court in deciding severance issues in criminal cases in Georgia, you'll never win unless you have every “I” dotted and “T” crossed.
This post is provided by:
The Sessions Law Firm
1447 Peachtree St NE #530