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In a criminal case with a co-defendant can the case be seperated and how. The reason why i am asking is because my son is willin

Sacramento, CA |

to take his deal but his co-defendant is not taking his he wants to try to get less time then they are offering. my son is incarerated and the co-defendant is out on bail. My son does not want to go to trial but if the co-defendant does not take deal the case will go to trial is there a way to seperate this case so my son does not go to trial?

Attorney Answers 3


This situation happens very often in a co-defendant case. It is frequently the major participant who is the holdout in a "package" offer.

There are several ways to handle this, but few effectively. Since you have asked about severance, I'll address that one. There are only a limited number of grounds on which you can move to sever; the basis rules favor consolidation, so the burden is on the defendant to show, for example, that it would result in a constitutionally unfair trial if the defendants were tried together. One of the more frequent of these is where one defendant makes a statement to the police that incriminates the other defendant. While this is too complicated to explain completely in an article such as this, one of the ways the court gets around the problem is to either exclude the out-of-court statement (disfavored by DA), "edit" it to keep out the incriminating references, or allow a severance of the trials if either of these can not be accomplished.

There are some other grounds as well, but this is a major one. If your son has not waived time and the judge is continuing the case past time-out dates over his objection, and at the request of either the DA or the co-defendant, you may have grounds on that basis. Plea bargaining might get your son out of the mess, but that is touchy and depends on many things. The basic problem with this is that the prosecutor doesn't want your son to plead out, and then come back to testify at trial against the prosecution's case - in other words, to have your son say that he did it and the defendant on trial did not.

My advise is to get a qualified criminal defense attorney to help with this case. This is a difficult situation, I know, having been through it many many time with clients on both sides of the situation.

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This happens frequently in co-defendant cases, and this is where the trial judge's influence may be helpful. Your son's attny will likely speak to him or her about the fact that your son wants to enter a guilty plea and resolve his portion of the case. If the DA insists on the either/or scenario, your son's attny would have to file a motion to sever the defendants, but the grounds for such are limited. You need to speak to your son's attny about his options. Best Regards,

Judith M. Fouladi, Esq
Orange County
(714) 384-6500

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Your son is caught in a tough spot. As indicated, severing defendants and having two trials on the same case isn't automatically granted. Your son (through his attorney) will have to demonstrate a good reason for the judge to grant this request.

It sounds as though the prosecution is offering a package deal - all must take it or nobody gets the deal. It really depends on the offer that's being made, but if your son's attorney wants to see if the court will make a similar offer and allow him to plead out, that's one way to handle things. Sometimes, a judge is willing to do that... often to see if the DA will then budge on the other defendant and offer less.

Every case is unique, but your son's attorney (hopefully) is doing what they can to protect your son and/or get him out of the case if it's in his best interest.

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