9.8Joinder and Severance

A.Single Defendant

1.Charging Joinder

“The prosecuting attorney may file an information or indictment that charges a single defendant with any two or more offenses.” MCR 6.120(A). “Each offense must be stated in a separate count.” Id. “Two or more informations or indictments against a single defendant may be consolidated for a single trial.” Id.

2.Postcharging Permissive Joinder or Severance

“On its own initiative, the motion of a party, or the stipulation of all parties, except as provided in [MCR 6.120(C)], the court may join offenses charged in two or more informations or indictments against a single defendant, or sever offenses charged in a single information or indictment against a single defendant, when appropriate to promote fairness to the parties and a fair determination of the defendant’s guilt or innocence of each offense.” MCR 6.120(B).

“[A] defendant who agrees to have the charges against him considered in two trials [cannot] later successfully argue that the second trial offends the Fifth Amendment’s Double Jeopardy Clause.” Currier v Virginia, 585 US 493, 496 (2018).¹

“Joinder is appropriate if the offenses are related. For purposes of [MCR 6.120], offenses are related if they are based on

(a) the same conduct or transaction, or

(b) a series of connected acts, or

(c) a series of acts constituting parts of a single scheme or plan.” MCR 6.120(B)(1).

“Other relevant factors include the timeliness of the motion, the drain on the parties’ resources, the potential for confusion or prejudice stemming from either the number of charges or the complexity or nature of the evidence, the potential for harassment, the convenience of witnesses, and the parties’ readiness for trial.” MCR 6.120(B)(2).

Joinder was appropriate in the following circumstances:

•Offenses were related where the evidence indicated that the defendant engaged in ongoing acts constituting parts of his overall scheme or plan to package drugs for distribution. People v Williams, 483 Mich 226, 233-235 (2009).

•Offenses were related where the evidence demonstrated that the defendant engaged in ongoing acts related to his scheme of preying on young, teenage girls from his high school; used text messages to communicate with the victims and encouraged them to keep their communications secret; requested naked photographs from the victims and threatened to cut off ties with them if they refused; and used his parents’ basement to isolate some of the young girls and sexually penetrate them. People v Gaines, 306 Mich App 289, 305 (2014).

•The trial court’s denial of the defendant’s motion to sever was not an abuse of discretion where the defendant’s “attempted escape from jail happened 12 days after the murder and appeared to be a crime of opportunity rather than part of a previous scheme or plan connected with the other crimes,” but “[the] defendant’s attempts to cover up the murder, evade arrest, and escape from jail [could] be seen as a series of connected acts.” People v Oros, 320 Mich App 146, 166 (2017), overruled in part on other grounds 502 Mich 229 (2018).²

•Evidence was not particularly complex (six charges of indecent exposure because there were six separate instances of indecent exposure), and the drain on the parties’ resources, the potential for harassment of the witnesses, and the convenience of the witnesses all weighed in favor of not bifurcating the trial. People v Campbell, 316 Mich App 279, 294 (2016), overruled on other grounds by People v Arnold, 502 Mich 438 (2018).³

•Joinder of four counts of CSC-I and two counts of CSC-II was appropriate under MCR 6.120 where “all six counts against defendant were related to the extent that they involved a series of connected acts amounting to parts of a single scheme or plan”; “[d]efendant’s specific method of sexually abusing [two of the] girls . . . was similar”; and “the common themes underlying defendant’s scheme and plan to sexually exploit them were almost identical with each of the victims” as the sexual abuse “began when the girls were very young” and “exploited personal relationships of trust.” People v Wisniewski, ___ Mich App ___, ___ (2025) (defendant’s “trial counsel reasonably surmised that any motion to sever would not have been successful . . . because even if defendant’s multiple charges were severed, the other-acts evidence of his sexual abuse of the other individuals presumptively would have been admissible [at each of his hypothetical trials] under MRE 404(b) or MCL 768.27a.”).

“If the court acts on its own initiative, it must provide the parties an opportunity to be heard.” MCR 6.120(B)(3).

3.Right of Severance for Unrelated Offenses

“On the defendant’s motion, the court must sever for separate trials offenses that are not related as defined in [MCR 6.120(B)(1)].” MCR 6.120(C).

Denial of the defendant’s motion for severance was appropriate in the following circumstances:

•Because evidence regarding the defendant’s possession of child sexually abusive material would have been admissible at a separate trial on the CSC-I charges at issue, the defendant could not establish that a different outcome was likely had the charges been severed and separate trials held. People v Girard, 269 Mich App 15, 18 (2005).

•Because evidence pertaining to the other tax evasion charges would have been admissible in each of the trials as evidence of intent. People v Duranseau, 221 Mich App 204, 208 (1997).

B.Multiple Defendants

1.Permissive Joinder

“An information or indictment may charge two or more defendants with the same offense.” MCR 6.121(A). “It may charge two or more defendants with two or more offenses when

(1) each defendant is charged with accountability for each offense, or

(2) the offenses are related as defined in MCR 6.120(B).” MCR 6.121(A).

“When more than one offense is alleged, each offense must be stated in a separate count.” MCR 6.121(A). “Two or more informations or indictments against different defendants may be consolidated for a single trial whenever the defendants could be charged in the same information or indictment under [MCR 6.121].” MCR 6.121(A).

2.Right of Severance for Unrelated Offenses

“On a defendant’s motion, the court must sever offenses that are not related as defined in MCR 6.120(B).” MCR 6.121(B).

3.Right of Severance for Related Offenses

“On a defendant’s motion, the court must sever the trial of defendants on related offenses on a showing that severance is necessary to avoid prejudice to substantial rights of the defendant.” MCR 6.121(C). “The decision to try two defendants jointly or separately lies within the discretion of the trial court, and that decision will not be overturned absent an abuse of that discretion.” People v Furline, 505 Mich 16, 20 (2020).

“Severance is mandated under MCR 6.121(C) only when a defendant provides the court with a supporting affidavit, or makes an offer of proof, that clearly, affirmatively, and fully demonstrates that his substantial rights will be prejudiced and that severance is the necessary means of rectifying the potential prejudice.” People v Hana, 447 Mich 325, 346 (1994). “The failure to make this showing in the trial court, absent any significant indication on appeal that the requisite prejudice in fact occurred at trial, will preclude reversal of a joinder decision. Id. at 346-347.

“The affidavit or offer of proof must state ‘facts on which the court might determine whether . . . a joint trial might result in prejudice.’” Furline, 505 Mich at 20, quoting Hana, 447 Mich at 339 (cleaned up). “[S]everance may be warranted when defendants’ mutually exclusive or antagonistic defenses create a serious risk of prejudice.” Furline, 505 Mich at 21 (quotation marks and citation omitted). “[T]he defenses must be irreconcilable and create such great tension that a jury would have to believe one defendant at the expense of the other.” Id. (quotation marks and citation omitted). “Defenses are mutually exclusive . . . if the jury, in order to believe the core of the evidence offered on behalf of one defendant, must disbelieve the core of the evidence offered on behalf of the co-defendant”; “[p]rejudice requiring reversal occurs only when the competing defenses are so antagonistic at their cores that both cannot be believed.” Id. (quotation marks and citations omitted).

The trial court did not err in denying defendant’s motion for severance where defendant’s affidavit consisted of “contextual” statements that were “not relevant to the severance analysis,” or related to prejudice that was “obviated by the prosecutor’s agreement not to offer [the complained of] evidence.” Furline, 505 Mich at 23 (thus, defendant’s affidavit lacked concrete facts that fully supported his claim that the lack of severance resulted in prejudice; the Court further found that no prejudice actually occurred during defendant’s trial).

4.Discretionary Severance

“On the motion of any party, the court may sever the trial of defendants on the ground that severance is appropriate to promote fairness to the parties and a fair determination of the guilt or innocence of one or more of the defendants.” MCR 6.121(D). “Relevant factors include the timeliness of the motion, the drain on the parties’ resources, the potential for confusion or prejudice stemming from either the number of defendants or the complexity or nature of the evidence, the convenience of the witnesses, and the parties’ readiness for trial.” Id. See also MCL 768.5 (“[w]hen 2 or more defendants shall be jointly indicted for any criminal offense, they shall be tried separately or jointly, in the discretion of the court”).

“[I]n line with MCL 768.5 and MCR 6.121(D), . . . the decision to sever or join defendants lies within the discretion of the trial court.” People v Hana, 447 Mich 325, 331 (1994). Michigan caselaw has established a strong policy in favor of joint trials, and denial of a defendant’s motion for separate trials will not be reversed on appeal absent an abuse of discretion and an affirmative showing of prejudice to the substantial rights of the accused. People v Carroll, 396 Mich 408, 414 (1976).

C.Use of Dual Juries as an Alternative to Severance

Dual juries may be used to avoid the problems arising from a joint trial of defendants with antagonistic defenses. People v Hoffman, 205 Mich App 1, 19 (1994). The use of separate juries is merely a partial form of severance and should be evaluated using the factors applicable to a motion for separate trials. People v Hana, 447 Mich 325, 331 (1994). “The dual-jury procedure should be scrutinized with the same concern in mind that tempers a severance motion, i.e., whether it has prejudiced the substantial rights of the defendant.” Id. at 351-352. “The precise issue is whether there was prejudice to substantial rights after the dual-jury system was employed.” Id. at 352.

D.Standard of Review

A trial court’s ruling on a motion for joinder or severance is reviewed for an abuse of discretion. People v Hana, 447 Mich 325, 331 (1994). Whether the charges are related is a question of law that is reviewed de novo. People v Girard, 269 Mich App 15, 17 (2005).