Joinder of Offenses

If a defendant is charged with multiple offenses, the prosecution may file a motion to join the offenses in order for the defendant to be tried in a single proceeding. Although some prejudice may result from permitting the joinder of offenses, the judicial economy of joinder may outweigh any potential prejudice a jury may have if the defendant is charged with more than one offense. It is within a trial court's discretion to grant or deny a motion to join offenses. The defendant may also request to join her offenses; however most often the prosecution is the party seeking the join the defendant's offenses.

When Joinder of Offenses is Permitted

Under the federal rules offenses may be joined in one indictment if:

Joinder and Habeas Corpus Proceedings

The defendant may also challenge the joinder of offenses in a state habeas corpus proceeding. If the defendant challenges the prosecution's request for joinder of the offenses, the defendant must show that joinder of her offenses would be unfair and would result in a due process violation.

Retroactive Misjoinder

Retroactive misjoinder is when the defendant's offenses were originally properly joined but due to developments thereafter the offenses would no longer be properly joined. This issue arises when one offense or count is dismissed for whatever reason and the other offense or count remains in the indictment. Not all jurisdictions recognize a claim for retroactive misjoinder. In order for a defendant to successfully raise the issue of retroactive misjoinder she must show that a compelling prejudice exists. This is a difficult burden to establish. Three key elements that must be analyzed by the court when considering a retroactive misjoinder claim are:

  1. The strength of the prosecution's argument on the remaining offenses.

  2. The similarities between the evidence used for the dismissed offense and for the remaining offenses.

  3. The evidence with respect to the dismissed offense was so prejudicial and inflammatory as to improperly influence the jury's verdict on the other offenses in the indictment.

As noted above, some of the most common instances where the issue of retroactive misjoinder arises is with respect to the dismissal of part of the indictment. An example of an instance in which reversal of a conviction of a remaining offense was required was in a bank robbery case. A reversal of the defendant's conviction for bank robbery was required where on a prior occasion the court dismissed the offense of a felon-in-possession of a gun.

If the defendant raises the claim of misjoinder and is successful, reversal of her conviction is required unless it is shown that the error was harmless in nature.