by Tallahassee Criminal Trial Attorney Joe Bodiford
Often times, mutilple defendants are charged in the same case for commission of the same crime. Drug cases, RICO cases, murder cases, home invasion robberies are some examples.
When mutliple defendants are accused of the same crime, a unique and very concerning problem can - and often - arises: when one confesses to the police and implicates another. What's the problem? The application of the Sixth Amendment guarantee to be able to confont one's accuser.
So, what's the problem? The problem is that a defendant has the Fifth Amendment right to remain silent, and not be forced to take the stand at his or her own trial. If two defendants are tried jointly in the same trial, and both elect not to take the stand, then the evidence of one's confession/implication of the other defendant can only come from the detective who took that confession. The one who didn't make a confession then cannot confront and cross-examine the accuser: the other defendant, not the cop. Complicated? Not really, because there is a rule that takes care of it: the severance of defendants, meaning that they are given separate trials and no longer to be tried together by one jury.
Florida Rule of Criminal Procedure 3.152, pertaining to the severance of defendants, condifies the holding in Bruton v. United States, 391 U.S. 123 (1968), a United States Supreme Court case. In the event that there is a statement by one defendant that implicates another, then the State Attorney's Office will have to decide whether to have:
A joint trial where the statements are not used at all.
A joint trial where the statement is redacted, that is, edited so that only the confession of the one defendant is heard by the jury, and the part implicating the other defendant is left out. That can be tricky, as the detective has to be very careful not to mention the redacted testimony. It can also be complicated where the statement is on video, and there are skips in the video that makes the jury wonder what is missing and why.
Severance of the defendants one from another, and have a trial for each defendant. That can be complicated because of speedy trial rights, and deciding which defendant to try first.