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Title XXXVII CRIMINAL PROCEDURE

Chapter 545

previous next Effective - 28 Aug 1984bottom

  545.880.  Joint trials, when — separate trials for joint defendants, when — probability of prejudice exists, when. — 1.  Notwithstanding supreme court rule 24.06, whenever two or more defendants are jointly charged in an indictment or information, the court shall order both or all defendants to be tried together.  In the event two or more defendants are charged in separate indictments or informations with offenses, where both the defendants and the offenses could have been joined in the same information or indictment, upon motion of one or more defendants or on motion of the state, the court may order the indictments or informations or both to be tried together.

  2.  If, upon written motion of the defendant, the court finds that the probability for prejudice exists in a joint trial, the court shall order the severance of defendants for trial.  The court shall find that the probability for prejudice exists if:

  (1)  At least one but not all of the defendants jointly charged is, if convicted, subject to jury assessment of punishment; the defendant or defendants subject to jury assessment of punishment shall have the burden of showing the probability of prejudice if tried jointly;

  (2)  There is, or may reasonably be expected to be, material and substantial evidence admissible against less than all of the joint defendants;

  (3)  There exists an out of court statement of a codefendant which makes reference to another of the joint defendants, but is not admissible against that defendant, and if the statement cannot be properly limited so as to eliminate reference to the complaining defendant;

  (4)  Severance of the joint defendants is necessary to achieve a fair determination of guilt or innocence of any defendant.

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(RSMo 1939 § 4050, A.L. 1963 p. 670, A.L. 1984 S.B. 602)

Prior revisions: 1929 § 3661; 1919 § 4004; 1909 § 5211

(1954) Where defendant had been granted a severance it was error for court to state to jury that three persons were originally jointly indicted and one of them had pleaded guilty.  State v. Castino (Mo.), 264 S.W.2d 372.


---- end of effective   28 Aug 1984 ----

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