Legislatures and courts, in weighing the relative advantages of joint and separate trials, have unreasonably struck a balance in favor of joint trials. The strongest justification traditionally offered for joint trials is efficiency. This Article shows that courts have greatly exaggerated the supposed efficiencies of joint trials while grossly underestimating the impediments joint trials pose to fair and accurate determinations of individual guilt or innocence. The propriety of joint trials is more than a question of efficiencies. Joint trials usually, although not always, help the prosecutor to get convictions, and thereby modify the balance of advantage in criminal trials. Disputes over joinder and severance should go beyond issues of procedural efficiency to consider the wisdom of such a modification. In considering questions of severance courts must value the impediments to fairness imposed by joint trials, both the general dangers inherent in complex litigation and the unique prejudices that flow from joinder. They must weigh these impediments, case by case, against a realistic assessment of the benefits of joinder. Such a balancing should replace the present blind preference for joint trials and the correlative barriers to severance.
Robert O. Dawson,
Joint Trials of Defendants in Criminal Cases: An Analysis of Efficiencies and Prejudices,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol77/iss6/2