memorandum to the deputy prosecutor of … · metropolitan police commissioner phillips, r. v. ......
TRANSCRIPT
I'
MEMORANDUM TO THE DEPUTY PROSECUTOR OF THE INTERNATIONALCRIMINAL TRIBUNAL FOR RWANDA
Andrea L. VarneyMay 18, 19982 CreditsUCWR
Index
I
II
III
TABLE OF CONTENTS
Brief Issue and Summary of Conclusions
Factual Background
Legal Discussion
II
1
2
3
A. Joinder of Offenses in Light of RelevantUnited States Practice 3
1.
2.
3.
Offenses of the "Same or SimilarCharacter" as set out inFed. R. Crim. P. 8(a)
Offenses based on the "Same Actor Transaction as set out inFed. R. Crim. P. 8(a)
Offenses based on a "Common Schemeor Plan as set out inFed. R. Crim. P. 8(a)
4
· 13
· 18
B.
C.
D.
Joinder of Defendants in Light of RelevantUnited States Practice .
Relief from Prejudicial Joinder in theUnited States: Severance perFed. R. Crim. P. 14
Joinder Procedures in Light of RelevantBritish Precedent
· 24
· 27
39
1.
2.
Joinder and Severance of Offenses
Joinder and Severance of Defendants
39
47
E. Joinder of Offenses, Joinder of Defendants andSeverance in Light of Relevant Canadian Precedent 52
IV Conclusion .
l
58
INDEX OF ATTACHED CASES
Ariyadasa, R. v.
Archer, U.S. v.
Assim, R. v.
Balciunas, R. v.
Bingham, R. v.
Blumenthal, United States v.
Camberwell, R. v.
Clunas, R. v.
Connelly v. D.D.P.
Cox, United States v.
Elkins, R. v.
Hollis, United States v.
Fortenberry, United States v.
Gabay, United States v.
Gorecki
Isaacs, United States v.
Kinslow, United States v.
Kotteakos, United States v.
Lane, United States v.
Lewis, R. v.
Ludlow v. Metropolitan Police Commissioner
Phillips, R. v.
Schaffer, United States v.
Smi th, R. v.
II
Page inMemorandum
41
6
49
53
47
37
51
57
40
4
54
5
20
22
19
3, 17
13
34
28
45
42
55
24
48
Taylor, Uni ted States v. 9
Quinn, Uni ted States v. 3
Valentine, Uni ted States v. 8
Wilson, Uni ted States v. 16
Zafiro, Uni ted States v. 30
III
TO:
FR:
RE:
MEMORANDUM
The Deputy Prosecutor of the International CriminalTribunal for Rwanda
Andrea L. Varney
Joinder of Offenses and Joinder of Defendants in Lightof Relevant United States, British and CanadianPrecedent.
DA: May 18, 1998
I. Brief Statement of the Issue and Summary of Conclusions.
The issue is whether, in light of an examination of joinder
issues in the United States, Canada and Britain, joinder of
offenses or defendants would be viable in the prosecution of
persons responsible for genocide crimes in Rwanda.
• The International Criminal Tribunal for Rwanda may find
it beneficial to argue for or against joinder of
offenses, depending on the relatedness of the offenses
charged.
• The International Criminal Tribunal for Rwanda may find
it beneficial to argue for or against joinder of
defenses, depending on the relatedness of the series of
acts alleged to have occurred.
• The International Criminal Tribunal may find that it
conserves resources by joining defendants or offenses,
and can encourage or discourage joinder under Rules 48
and 49 of the Rwanda Tribunal Rules, respectively.
II Factual Background.
The joinder issues arise In the context of the United
Nation's prosecution of persons for international crimes
committed in Rwanda. The Office of the International Prosecutor
for Rwanda has requested an illustration of issues concerning
joinder of both offenses and defendants in order to facilitate
effective prosecution of persons responsible for genocide crimes
in Rwanda.
III Legal Discussion.
A. Joinder of Offenses in Light of Relevant United StatesPractice
Federal Rule of Criminal Procedure 8(a), which governs
joinder of offenses, provides:
Joinder of Offenses. Two or more offenses may becharged in the same indictment or information in aseparate count for each offense if the offensescharged, whether felonies or misdemeanors or both, areof the same or similar character or are based on thesame act or transaction or on two or more acts ortransactions connected together or constituting partsof a common scheme or plan.
Thus, in order to join two or more offenses together in one
2
indictment, "(1) the crimes must be of the same or similar
character, (2) the crimes must be based on the same act or
transaction, or (3) the crimes must be based on two or more
transactions connected together constituting parts of a common
scheme or design."l
It is worth noting that when defendants argue that their
offenses should not have been joined under Rule 8(a), they often
proffer an alternative argument that even if joinder under Rule
8(a) was proper, their cases should have been severed per Fed. R.
Crim. P. 14 because they were prejudiced by joinder. An overview
of various defendants' arguments regarding severance is presented
in Section C, below.
It is also important to recognize that "Rule 8 is construed
broadly to allow liberal joinder [of offenses] and thereby
enhance the efficiency of the judicial system."2 The following
cases are illustrative of the diversity of circumstances where
courts find joinder of offenses to be permissible.
Each of the three "tests" for joinder of offenses, per Rule
lUnited States v. Quinn, 365 F.2d 256, 263 (7 th Cir. 1966).
2United States v. Isaacs, 493 F.2d 1124, 1158 (1974), citingUnited States v. Friedman, 445 F.2d 1076, 1082, cert. denied 404U.S. 958 (1971).
3
8(a), are outlined below and examined through relevant United
States Courts of Appeals cases and United States Supreme Court
cases.
1. Offenses of the "Same or Similar Character" as set outin Fed. R. Crim. P. 8{a).
This portion of Rule 8(a) represents the first of three
possible scenarios where it can be argued that joinder of
offenses is proper. 3
An example of a case wherein the offenses charged were of
similar character is United States v. Cox. 4 There, the defendant
was convicted of two firearms violations and of six drug
violations. s The defendant argued to the appeals court that "the
two marijuana offenses, the two firearms offenses and the other
four drug offenses involved three distinct and unrelated sets of
3See subsections 2 and 3, below, for analyses of the twoadditional situations where joinder of offenses is permissible.
4934 F. 2d 1114 (10 th Ci r. 1991).
SSee id. at 1118. The defendant incurred three of his eightcriminal charges in November, 1987, when a state trooper pulledthe defendant over for speeding and noticed a green leafysubstance in the defendant's car. Id. A subsequent search of thevehicle showed the substance to be marijuana. Id. Firearms werealso found in the search. Id. The defendant was arrested againin May, 1988 after agreeing to distribute cocaine to a governmentinformant. Id. A search of the defendant's automobile revealednumerous controlled substances for which he incurred fivecriminal charges. Id.
4
activities and should have been tried separately."6 The court
held that the offenses were properly joined for two reasons.
First, the drug charges, even though they were incurred on
separate dates, were of the same or similar character because
they involved "either possession with intent to distribute or
conspiracy to possess and distribute a controlled substance."7
Second, although the firearms violations could not be considered
of the same or similar character as the drug violations, the
court held that the joinder of these charges with the drug
charges was proper because together they constituted part of a
"common scheme or plan" under Fed. R. Crim. P. 8(a) to possess
and distribute drugs. s The court also considered it significant
that both the weapons and marijuana were seized simultaneously
from the same vehicle.
Another example of the variety of charges which are similar
enough to sustain joinder is seen in United States v. Hollis. 9
The Hollis defendant was charged and convicted on ten counts,
6Id. at 1119.
SId. See subsection 3, below, for an analysis of joinder ofoffenses characterized by a "common scheme or plan".
9971 F.2d 1441 (1992)
5
including two counts of insurance fraud and two counts of mail
fraud. lO The defendant argued that the offenses were misjoined
because each set of insurance and mail fraud offenses occurred on
two separate dates. The court disagreed, holding that the
offenses arising from the bank fraud and the two mail fraud
schemes were "of the same or similar character."ll The court
rationalized that, in each case, the Hollises "allegedly
defrauded the victim of money through submission of falsified
documents,"12 so this was sufficient to join the offenses.
Another case where a federal appeals court held that similar
offenses which allegedly occurred on separate dates were properly
joined in one indictment per Fed. R. Crim. P. 8(a) is United
States v. Archer. 13 The amended indictment against the inmate
lOSee id. at 1445-1447. The defendant and his wifecommitted insurance and mail fraud by mailing two false insuranceclaims to their insurer. Id. The Hollises claimed certain itemswere stolen from their house in a burglary in December, 1988. Id.The defendant incurred one of his mail fraud offenses whenmailing a Sworn Statement in Proof of Loss to his insurer. Id.On a separate date, the Hollises overstated damages to theirbusiness from a lightning strike on a property loss form mailedto their insurer. Id.
llId. at 1456.
12 Id.
13 843 F. 2d 1019 (7 th Cir. 1988)
6
defendant charged him with (1) possession of items in December,
1986 which were designed to facilitate escape from prison; and
(2) possession of a homemade handcuff key in June, 1987 which was
also designed to aid his escape. 14 The defendant argued that the
crimes allegedly committed by him were not properly joined
because "there was insufficient 'overlap' ln evidence. u15 The
appeals court disagreed, and held joinder of the offenses to be
permissible because the offenses were of the same or similar
character as "both counts charge[dJ Archer with possessing
prohibited objects with the intent to fascilitate escape from
prison. u16 The court reasoned that "the elements to be proved in
each case were the same. This similarity supports.
joinder. u17
These examples may be useful to the Office of the Prosecutor
in Rwanda because they demonstrate the features a court may look
for to support joining offenses. It is noteworthy that the
charges are not exactly the same, for instance.
14 I d . at 1020.
15Id. at 1021.
l6Id. at 1021.
17 Id.
7
The following case shows how, even when a defendant attempts
to argue that his case does not fit within the parameters of the
first portion of Rule 8(a), the court may still find that joinder
of charges was proper under one of the latter portions of Rule
8 (a)
In United States v. Valentine 18 , the defendant asserted on
appeal that joinder of cocaine offenses and weapons offenses in
one indictment against him was not proper because the offenses
were not of the same or similar character. 19 The defendant had
previously been convicted of a crime punishable by imprisonment
of over one year and was not permitted to carry firearms. 2o He
asserted that the "Government failed to prove that he possessed
both the cocaine and the weapons as part of a common plan to sell
cocaine for profit. u21 The court held that the joinder of
charges was not improper because the Government demonstrated,
18 706 F. 2d 282 (loth Cir. 1983).
19Id. at 289. The defendant was charged with two counts ofpossession of cocaine with intent to distribute, one count ofdistribution of cocaine, two counts of receipt of firearms afterconviction of a crime punishable by imprisonment for a termexceeding one year, and two charges of possession of the samefirearms. Id. at 282.
20See id. at 285.
21Id. at 289.
8
through circumstantial evidence showing the guns and cocaine were
found in the defendant's kitchen, the existence of a common
scheme or plan. 22 Even though the court did not agree with the
defendant that the cocaine and firearm offenses were not of the
same or similar character, the court was able to find the joinder
permissible because the joinder was characterized by a common
scheme or plan, e.g., the "pursuit of unlawful activity.n23
Valentine also demonstrates how broadly the common scheme
principle is interpreted. It also demonstrates that a party
arguing for or against joinder of offenses may want to broaden or
diversify the argument, rather than limit it to one small portion
of a statute like the Valentine defendant did. It could be
argued that the defendant gave the government several openings
for argument by putting forth such a narrow one himself.
Another case which further illustrates courts' liberal
construction of joinder of offenses 24 is United States v.
Taylor. 25 The defendant was convicted in the trial court for two
22 Id.
23 Id.
24See n. 2.
25 800 F.2d 1012 (10 th Cir. 1986)
9
counts of bank robbery and one count of assault on a person while
committing a bank robbery.26 On appeal, the defendant contended
that "he was prejudiced by the joinder of the bank robberies
because the jury confused and accumulated the evidence and
inferred guilt from the count about which the Government had a
stronger case. u27 The court noted the defendant's concession
that it is within the sound discretion of the trial court to
order separate trials of counts under Fed. R. Cr. P. 14. 28
In keeping with that rule, the court held that there was
"nothing in the record to support [the defendant's] contention
that the jury was incapable of properly separating the evidence
of each robbery as instructed . or that the jury accumulated
the evidence or inferred guilt from the stronger count. u29 The
court rationalized that joinder was permissible under the
26Id. at 1013.
27Id. at 1017. The stronger robbery case involved aninformant who provided information to the Government that thedefendant had confessed to one of the robberies. Id. at 10131014.
28See section C, below, for an analysis of Fed. R. Crim. P.14 (permitting relief to defendants or the State for prejudicialjoinder) .
29United States v. Taylor, 800 F.2d 1012,1017 (loth Cir.1986) .
10
circumstances because there was no ascertainable prejudice in
joining the counts.
It is worth noting here that the issue of potential
prejudice to a party is significant. Even in a jurisdiction
which does not provide relief to defendants for prejudicial
joinder, a party can argue that joinder should not occur if the
outcome of the case would be substantially different but for the
joinder.
An example of the balancing test that the United States
courts employ when ascertaining whether the benefits of joinder
of counts is outweighed by the potential for prejudice is
illustrated in United States v. Quinn. 30 There, the court found
that the counts against the defendant were misjoined. 31 The
court stated that even if the counts had been properly joined,
severance of the counts would be warranted because the defendants
were greatly prejudiced by such joinder. 32
The facts of Quinn involved a defendant who was charged and
30 365 F. 2 d 256 ( 7 th C i r. 196 6) .
3 1 Id. at 266.
32Id. See section C, below, for an analysis of Fed. R.Crim. P. 14 (permitting relief to defendants or the State forprejudicial joinder) .
11
convicted on four counts of fraud. 33 The government's argument
on appeal was that the four counts were properly joined as they
were of the "same or similar character."34 The court held that
the counts were misjoined, stressing the resultant prejudice to
the defendant because the introduction of evidence on the
different counts tended to be complex and confusing, making it
difficult for a jury to separate proof relevant to the different
counts. 35
The International Criminal Tribunal for Rwanda has an
interest in convicting persons responsible for genocide crimes
and ensuring that convictions stand. In that vein, it should be
33Id. at 256. "Counts I and II relate to the defendant'sact in obtaining a rent prepayment from Beverly Savings and LoanAssociation, of which he was president, and counts III and IVrelate to the defendant exchanging a check drawn on IndustryCapital Corporation for an accommodation check drawn by Beverly."Id.
34Id. at 263.
35Id. at 264-66. (Emphasis added). The court alsoreferenced a conversation between defendant's counsel and thejudge at trial, in the presence of the jury, where counselobjected to the introduction into evidence of the latter set ofchecks, but asked that if they were introduced that they only beadmissible to the counts they pertained to. Id. The judge agreedwith counsel that the checks could only pertain to certain countsand responded to counsel's concern that the jury might apply suchevidence to the wrong counts by saying that he would instruct thejury on the matter. The judge did not so instruct the jury. Id.
12
stressed that whether joinder of offenses should occur or not
depends very much on the circumstances. There are individuals in
Rwanda who have been charged with a variety of offenses,
including crimes against humanity and genocide. 36 If there are
complex issues of law or fact involved in such a case, it may be
worthwhile to argue against joinder and expend additional
prosecutorial resources in order to reduce the grounds on which a
convicted person can initiate an appeal.
2. Offenses based on the uSame Act or Transaction" as setout in Fed. R. Crim. P. 8(a).
This portion of Rule 8(a) represents the second of three
possible scenarios where it can be argued that joinder of
offenses is proper. 37
In United States v. Kinslo~8 the defendant was convicted of
kidnapping, interstate transportation of a minor for sexual
purposes, and numerous firearms and vehicle offenses. 39 The
36See VIRGINIA MORRIS & MICHAEL P. SCHARF, An Insider's Guide tothe International Criminal Tribunal for Rwanda 488 (1997).
37See subsections 1, above, and 3, below, for analyses ofthe two additional situations where joinder of offenses ispermissible.
38 860 F.2d 963 (9 th Cir. 1988).
3 9 Id. at 964-65.
13
defendant contended that the count charging him with interstate
transportation of a minor should be severed from the other
charges because it did not constitute a situation contemplated by
Rule 8 (a) .40
The court held that joinder under Rule 8(a) was proper
because "all of the counts in the indictment were based on the
same transaction and were part of a common plan. u41 The court
noted that "'transaction' is a word of flexible meaning that may
comprehend a series of related occurrences. u42 The facts of the
case which supported the offenses being of the same transaction
or occurrences were recited:
The incidents listed in the indictment all took placewithin the same 24 hour time period and all made uppart of Kinslow's common plan to get to California withthe family as his hostages. Besides the interstatetransportation charge. . Kinslow was also chargedwith the unlawful transportation of firearms and stolenproperty. All the illegal transportations occurred in
4°Id. at 965. The defendant escaped from prison andallegedly held a family hostage in their home, took firearms fromthe family's home, and escaped in the family's car with theeleven year-old daughter. Id.
41Id. at 966.
42Id., citing United States v. Friedman, 445 F.2d 1076, 1083(9 th Cir.), cert. denied, 404 U.S. 958 (1971)
14
the same vehicle and at the same time."3
Thus, the court held that there was no error in joining the
charges. This manner of joining offense is useful in litigation
because it would be wasteful to have several different trials
which essentially relied on the same set of facts.
Another case which illustrates this principle is United
States v. Wilson. 44 The Wilson defendants were charged in one
indictment with four counts of drug-related activity and three
counts of income tax violations. 45 The defendants argued that
joinder of the offenses violated Rule 8(a) .46 The court noted
the goal of joining offenses to avoid expensive, duplicate trials
and that joinder would be favorable where (1) the offenses
contained common elements of proof; and (2) the interest of
judicial economy outweighed any prejudice to the defendants."7
The court held that the drug-related charges and the income
43United States v. Kinslow, 860 F.2d 963, 966 (9 th Cir.1988) .
44715 F.2d 1164 (7 th Cir. 1984).
45 Id. at 1166 -1167.
46Id. at 1170.
47Id., citing Uni ted States v. Mardian, 546 F. 2d 973, 979(D.C. Cir. 1976).
15
tax violations were properly joined because the "offenses
involved the introduction of common elements of proof."48 In
finding commonality of the offenses, the court rationalized:
The elements of proof for failure to file an income taxreturn include that the defendant had sufficient incomethat filing was necessary, and that the defendantfailed to file a return. Proof of a continuingcriminal enterprise requires evidence of substantialincome therefrom. 49
Since the government was able to prove that the defendant made
large expenditures, the fact that he had money to make such
purchases but failed to file a tax return could lead to the
permissible inference that he had no bona fide income to support
these expenditures. 5o Thus, the offenses could be construed as
part of the same act or transaction. Courts have not limited
finding a relatedness between offenses to the above sets of
facts, however.
The factual scenarios wherein courts find offenses
characterized by the "same transaction" are numerous. Another
example of offenses which may seem, at a glance, unrelated, but
48United States v. Wilson, 715 F.2d 1164, 1171 (7 th Cir.1983) .
50 Id.
16
that the court finds are related lS seen in United States v.
Isaacs. 51
The offenses joined against one of the defendants in Isaacs
included conspiracy, bribery, Travel Act violations, mail fraud,
tax evasion and perjury.52 The defendant was convicted on all
charges and asserted that the counts charging conspiracy, Travel
Act and mail fraud violations were improper. 53 In order to
determine whether the offenses were properly joined, the court
stated, "the word 'transaction' contemplates a series of many
acts 'depending not on so much as the immediateness of their
connection as upon their logical relationship.,u54 The court
determined that the offenses charged had a logical relationship
between them. 55 "They are all connected with, or arose out of, a
common plan to corruptly influence the regulation of horse
51 493 F.2d 1124 (7th Cir. 1974).
52 I d . at 1124.
53 Id. at 1158. All of the offenses allegedly occurred in
the context of corruptly influencing the regulation of horseracing events. Id.
54 Id., citing Moore v. New York Cotton Exchange, 270 U.S.593, 610 (1926).
55United States v. Isaacs, 493 F.2d 1124, 1158 (7th Cir.1974) .
17
racing [T]he commonality of proof suffices to establish
that the offenses were 'connected together' for the purpose of
Rule 8(a).,,56
As noted above, it would seem that the arguments for or
against joinder should be very detailed in order to be
successful. American courts construe joinder liberally. This
may be evidenced in part by the very few cases that make it to
appeals courts, and the small number of cases seen at appellate
levels beyond an initial appeal.
Another possibility for the small number of joinder appeals
cases comprising courts' case loads is that the government and
defendants dispose of joinder issues before trial so that the
issue is not often appealed. Regardless, it should be apparent
from the above cases that American courts rarely find that the
trial court abused its discretion in permitting joinder, and will
not overrule a district court decision to permit joinder unless
serious prejudice resulted to the government or to the defendant.
3. Offenses based on a "Common Scheme or Plan" as set outin Fed. R. Crim. P. 8(a).
This portion of Rule 8(a) represents the third of three
possible scenarios where it can be argued that joinder of
56 Id.
18
offenses is proper. 57
The Third Circuit first had occasion to examlne the issue of
whether drug and weapon charges were properly joined against a
defendant in United States v. Gorecki. 58 The court followed the
practice of other circuits in deciding the issue. 59 A search of
the defendant's home in Gorecki uncovered cocaine, over $1,000 in
cash and a firearm which the defendant had allegedly illegally
converted into a machine gun. 60
The court held that joinder of the drug and weapon charges
was proper because
[t]here was evidence that Gorecki's house was used andhad been used for a long time for major cocainedealings, indeed that Gorecki had acquired it from apredecessor dealer for that purpose. Under thesecircumstances, it is reasonable to assume that thefirearm could have been used as a vital part of a planto possess and distribute drugs, particularly since thefirearm and the narcotics-related evidence were foundon the same premises, at the same time, as a result of
57See subsections 1 and 2, above, for analyses of the twoadditional situations where joinder of offenses is permissible.
58 813 F.2d 40, 41-42 (3d Cir. 1987).
59Id. The court noted the following cases: Montes
Cardinas, 746 F.2d at 776-77 (11 th Cir. 1984); United States v.
Valentine, 706 F.2d 706 F.2d 282, 291 (10 th Cir. 1983); UnitedStates v. Park, 531 F.2d 754, 761 (5 th Cir. 1976); and UnitedStates v. Begun, 446 F.2d 32, 33 (9 th Cir. 1971)). Id.
6°United States v. Gorecki, 813 F.2d 40, 41 (3d Cir., 1987).
19
the same ] ega] search. 61
The court also rationalized that joinder of the offenses in
Gorecki was proper because it was "consistent with the purpose of
Fed. R. Crim. P. 8(a) to promote economy of judicial and
prosecutorial resources u62 and that it would have been wasteful
and duplicative for the Government to have to establish the same
facts relating to the defendant's possession of illegal items in
two separate trials, since the element of possession had to be
proved in both cases. 63
Not only do courts place significant emphasis on permitting
joinder to conserve judicial resources, courts look to the
elements that have to be proved for each offense. Courts are
very unlikely to disturb the initial joinder of offenses where
commonalities of proof among offenses are present.
In another scenario, the court in United States v.
Fortenberry, Jr,64 examined whether joinder of two counts of car
61Id. at 42, citing United States v. Begun, 446 F.2d 32, 33(1971). (Emphasis added) .
62United States v. Gorecki, 813 F.2d 40, 42 (3d Cir. 1987),citing United States v. Werner, 620 F.2d 922, 928 (2d Cir. 1980)
63United States v. Gorecki, 813 F.2d 40, 42 (3d Cir. 1987),citing United States v. Park, 531 F, .2d 754, 761 (5 th Cir. 1976)
64 914 F.2d 671 (5 th Cir. 1990).
20
bombing with one count of transporting an unregistered firearm on
a commercial airline was proper. 65 The defendant had "allegedly
detonated an explosive device on his ex-father-in-law's car and
transported an undeclared firearm on a commercial airliner."66
The Government maintained that all of the defendant's acts were
carried out as part of a vengeful scheme against his ex-wife and
other persons involved in his divorce. 67
The Fortenberry court noted the practice of construing
joinder broadly in favor of initial joinder and that the
interpretation of the word "transaction" within Rule 8 is
flexible: "'It may comprehend a series of many occurrences,
depending not so much upon the immediateness of their connection
as upon their logical relationship. ,"68 The court held that,
because Fortenberry was transporting the gun to Jackson where the
other offenses charged in the indictment were committed, and the
65Id. at 674-75.
66Id. at 672.
67Id. This case represents the defendant's asserted errorsin his second trial. Id. His first appeal, after conviction,resulted in the court affording him a new trial because of theprejudicial effect of extrinsic evidence introduced at thattrial. Id.
68Id. at 675, citing United States v. Park, 531 F.2d 754,7 6 0 - 6 1 ( 5 th C i r. 1 9 7 6) .
21
government argued throughout the trial that the three charges
were linked by a plan of revenge against persons in Jackson, the
joinder of the offenses was proper. 69
The court's rationale is important here, and may be a basis
on which the Criminal Tribunal for Rwanda will argue that certain
offenses should be joined. This may be applicable to the
instances where murders took place in succession, or people were
robbed after being assaulted or killed.
Another case where a court found a common scheme among
different counts to be present was United States v. Gabay. 70
The defendant was convicted on one count of counterfeiting and
one count of bond jumping. 71 The issue of whether it was proper
to join substantive offenses with bond jumping offenses was one
of first impression for that circuit. 72 The court noted that the
three circuits which had addressed the issue found joinder of
69United States v. Fortenberry, Jr., 914 F.2d 671, 675 (5 th
Cir. 1990)
7°923 F.2d 1536 (11th Cir. 1991).
71Id. at 1539. The defendant incurred the bond jumpingcharge when he fled to Venezuala before the trial for thecounterfeiting charge took place. Id. The defendant wassubsequently tried for both offenses in one trial. Id.
22
such offenses was permissible under the proper circumstances. 73
The court held that the offenses were properly joined
because they were "'connected together' because they were related
in time. The motive for flight was avoidance of prosecution of
the underlying offenses, and custody derived directly from the
underlying offense. u74 The court relied on the following
sequence of facts to support that the offenses were properly
joined in that they constituted a common scheme: (1) Gabay
absconded soon after his arrest for counterfeiting; (2) the
counterfeiting led directly to his custody; and (3) by his own
admissions, (made in a videotape where he stated his reasons for
fleeing), his motive for flight was directly related to his
impending prosecution for counterfeiting. 75 It does not appear
that the defendant had much hope for a severance of his acts
which occurred in virtual succession.
73Id. at 1539.
74Id. at 1539-40, citing United States v. Ritch, 583 F.2d1179 (pt Cir.), cert denied, 439 U.S. 970 (1978).
75United States v. Gabay, 923 F.2d 1536, 1539-40 (11 th Cir.1991).
23
B. Joinder of Defendants in Light of Relevant UnitedStates Practice
The United States Supreme Court has recognized that joint
trials "conserve state funds, diminish inconvenience to witnesses
and public authorities, and avoid delays in bringing those
accused of crime to trial. u76 Federal Rule of Criminal Procedure
8(b), which governs joinder of defendants, provides:
Joinder of Defendants. Two or more defendants may becharged in the same indictment or information if theyare alleged to have participated in the same act ortransaction or in the same series of acts ortransactions constituting an offense of offenses. Suchdefendants may be charged in one or more counts orseparately and all of the defendants need not becharged in each count.
When defendants argue that they should not have been joined
as defendants under Rule 8(b), they often proffer an alternative
argument that even if joinder under Rule 8(b) was proper, their
cases should have been severed per Fed. R. Crim. P. 14 because
they were prej udiced by joinder. 77
Schaffer v. United States78 concerned several defendants who
had a conspiracy charge in common. There, several of seven
76Bruton v. United States, 391 U.S. 123, 134 (1968)
77See Section C, below, for an analysis of variousdefendants' arguments regarding severance under Rule 14.
78 362 U.S. 511 (1960).
24
defendants were charged with transporting stolen ladies' apparel
between New York and Pennsylvania. 79 Four were charged with
similar transporting (two defendants allegedly transported stolen
goods to New York and West Virginia; the other two allegedly
transported stolen goods from New York to Massachusetts) .80 All
seven defendants were charged with conspiracy to commit the
substantive offenses charged. 81 Prior to the case being
submitted to the jury, the court dismissed the conspiracy count
against the defendants. 82 Thereafter, the defendants argued
unsuccessfully to both the trial and appeals courts that their
joinder was erroneous. 83
A plurality of the u.s. Supreme Court held that there was no
misjoinder because the indictment joining the defendants fit
squarely within the provisions of Rule 8(b) .84 The dissenters of
the u.S. Supreme Court vigorously disagreed, arguing that joinder
of the defendants after the conspiracy count was dismissed was
79Id. at 513.
80 Id.
81 Id.
82 Id.
83 Id.
84 362 U.S. 511, 513 (1960).
25
erroneous because the defendants could no longer be linked
together within the meaning of Rule 8(b) .85
According to the u.s. Supreme Court, Rule 8(b) contemplates
joinder of defendants in two types of situations:
First, where they participate jointly in 'one act ortransaction'; or second, where they participate 'in thesame series of acts or transaction constituting anoffense or offenses.' These four petitioners did notparticipate in one act or transaction as evidenced bythe fact that the proof of conspiracy utterly failed.The other [substantive] acts or transactions chargedwere not in the same 'series,' within the meaning ofRule 8 (b) .86
The dissenters in the Schaffer opinion argued that the facts of
the case did not squarely fit within Rule 8(b). They cited a
rule the u.s. Supreme Court made in 1896 that it was
[e]rror to consolidate four indictments chargingunrelated offenses (arson and assault with intent tokill) where six people were named in three of theindictments and only three of the six in the remainingone because' [s]uch joinder cannot be sustained wherethe parties are not the same, and where the offensesare in nowise parts of the same transaction, and mustdepend upon different evidence of a different state offacts as to each or some of them. It cannot be said insuch a case that all defendants may not have beenembarrassed and prejudiced in their defense, or thatthe attention of the jury may not have been distractedto their injury in passing upon distinct and
85Id. at 520.
86 Id.
26
independent transactions.' 87
If the u.s. Supreme Court were to follow its rule from 1896, the
dissenters argued, then the joinder of the Schaffer defendants
would not be permissible because there was no "same act or
transaction" or "same series of acts or transactions" which
occurred to permit joinder. 88
The Schaffer case, above, demonstrates that it can be
difficult to ascertain or agree whether joinder is proper or not.
c. Relief from Prejudicial Joinder in the United States:Severance
Federal Rule of Criminal Procedure 14, which provides relief
from prejudicial joinder, provides:
Relief from Prejudicial Joinder. If it appears that adefendant or the government is prejudiced by a joinder ofoffenses or of defendants in an indictment or information orby such joinder for trial together, the court may order anelection or separate trials of counts, grant a severance ofdefendants or provide whatever other relief justicerequires. In ruling on a motion by a defendant forseverance the court may order the attorney for thegovernment to deliver to the court for inspection in cameraany statements or confessions made by the defendants whichthe government intends to introduce in evidence.
In 1985, the u.S. Supreme Court examined the issue of
87Id. at 521, citing McElroy v. United States, 164 U.S. 76(1896) .
88Schaffer v. United States, 362 U.S. 511, 521 (1960).
27
whether misjoinder constituted harmless error or per se
reversible error in Uni ted Sta tes v. Lane. 89 There, the father
and son defendants were charged with mail fraud, arson and
conspiracy.9o The defendants argued to the trial court that the
charges against them were misjoinded under Rule 8(b), and a trial
by jury ensued wherein both defendants were convicted on all
counts against them. 91 The Court of Appeals for the Fifth
Circuit agreed with the defendants that "'Count I should not have
been joined with the others because it was not part of the same
series or acts or transactions as [the other counts] .,n and
reversed the defendants' convictions, stating that misjoinder was
prejudicial per se in that circuit. 92
The U.S. Supreme Court disagreed with the Fifth Circuit's
analysis that the defendants' convictions should be automatically
89 474 U.S 438 (1986).
90Id. at 442. Count I charged the defendant father withmail fraud related to an arson he hired another to commit. Id.Counts II through IV charged both defendants with mail fraudrelated to a second arson. Id. Count V charged both defendantswith conspiracy to commit mail fraud regarding a third arson andCount VI charged the defendant son with perjury before a grand
jury. Id.
91 Id.
92Id. at 443.
28
reversed because of misjoinder and reversed that portion of the
lower court's holding. 93 The thrust of the u.s. Supreme Court's
holding was that, although Count I had in fact been misjoined,
absent a showing that substantial rights were affected as a
result of prejudicial joinder, misjoinder should be construed as
harmless error. 94 "[mJisjoinder requires reversal only if the
misjoinder results in actual prejudice because it 'had
substantial and injurious effect or influence in determining the
jury's verdict.' ,,95
The factors that the u.S. Supreme Court considered in
deciding that there was no prejudice, or at least harmless
prejudice, to the Lane defendants were: (1) the district court
provided a limiting instruction to the jury stating that it must
use certain evidence presented at the trial toward ascertaining
the guilt of the father or son defendant only; (2) repeated that
instruction and "admonished the jury to consider each count and
each defendant separately"; and (3) the same evidence of Count I
would probably have been admissible on a joint retrial of the
93Id. at 453.
94 Id at 450. See also n. 92.
95United States v. Lane, 474 U.S 438, 449 (1986), citingKotteakos v. United States, 328 U.S. 750, 776 (1946).
29
properly joined counts to show the father defendant's intent per
rules of evidence. 96
The u.s. Supreme Court's rationale is demonstrative of the
fact that there must be a significant likelihood that a party was
prejudiced by joinder before relief from joinder will be granted.
It also illustrates the same principle that was observed in the
cases concerning joinder of offenses in that, where the evidence
to be presented against the defendants at trial is the same or
similar, the Court is unlikely to find that severance is
warranted.
In Zafiro v. United States 97, the u.s. Supreme Court
examined the issue "whether Rule 14 requires severance as a
matter of law when codefendents present mutually antagonistic
defenses."98 There, four defendants were charged with possession
of cocaine and other illegal drugs. 99 The four defendants were
96Id at 450.
97 506 U.S. 534 (1993).
98Id. at 536.
99Id. The defendants were accused of distributing illegaldrugs. Id. When government agents entered one of the defendant'sapartments, the four defendants were present in the living room.Id. A subsequent search of the premises revealed approximately78 pounds of cocaine, 25 grams of heroin, 4 pounds of marijuanaand $23,000 in cash. Id.
30
tried together and convicted of conspiracy to possess and intent
to distribute cocaine, heroin and marijuana, and various
defendants were convicted of additional drug charges .100 All of
the defendants argued that joinder of their cases under Rule 8(b)
was prejudicial to them because of their antagonistic defenses
and that their cases required severance per Rule 14. 101
The U.S. Supreme Court's analysis of the issue pertained to
the three defendants who appealed the district court's denial of
their initial severance motions. 102 At the initial appeal, the
seventh circuit upheld the joinder of the defendants noting that
"'mutual antagonism. . and other . characterizations of
the effort of one defendant to shift the blame from himself to a
codefendant neither control nor illuminate the question of
lOOId.
101See id. at 536. Defendant Soto testified that he knewnothing about the drug conspiracy and that he had given DefendantGarcia a box when Defendant Garcia asked for it, but did not knowthe contents. Id. Defendant Garcia did not testify and hislawyer argued for his innocense. Id. Similarly, Defendant Zafirotestified that she was merely the girlfriend of the DefendantMartinez and knew nothing of the conspiracy. Id. She testifiedthat although she allowed Defendant Martinez to store a suitcasein her closet, she had no idea there were illegal drugs in it.Id. Defendant Martinez did not testify, but his lawyer arguedthat he was visiting Defendant Zafiro and had no idea she wasdistributing illegal drugs. Id.
102Id. at 537.
31
severance. ' ,,103
In its analysis, the u.s. Supreme Court noticed that the
Courts of Appeals "have frequently expressed the view that
'mutually antagonistic' or 'irreconcilable' defenses may be so
prejudicial as to mandate severance, ,,104 but that "courts have
reversed relatively few convictions for failure to grant a
severance" where such defenses were asserted. lOS The Court also
hypothesized that the "low rate of reversal [might] reflect the
inability of defendants to prove a risk of prejudice in most
cases involving conflict ing defenses." 106
The U.S. Supreme Court, holding that the defendants' motions
to sever were not improperly denied, emphasized that, in order to
warrant severance, defendants must show a "legally cognizable"
reason for prejudice, not merely that their defenses were at
103Za firo v. United States, 506 U.S. 534, 537 (1993), quotingUnited States v. Keck, 773 F.2d 759, 765 (CA7 1985) .
l04Id. at 538. See, e.g., United States v. Benton, 852 F.2d1456, 1469 (CA6) , cert. denied; United States v. Smith, 788 F.2d663, 668 (CAl 0 1986). I d .
lOSId. See, e.g., United States v. Tootick, 952 F.2d 1078(CA 1991); United States v. Rucker, 915 F.2d 1511, 1512-1513(CAll 1990). Id.
106Id.
32
odds. 107 The risk of prej udice to a defendant may be reduced
through such methods as limiting instructions, lOB but Rule 14
"does not require severance even if prejudice is shown; rather,
it leaves the tailoring of the relief to be granted, if any, to
the district court's sound discretion." 109
It seems likely that in the prosecutions for individuals
responsible for genocide crimes in Rwanda that various defendants
might set forth different defenses. This could make trying the
case difficult or confusing. It may be worth arguing for
separate trials in such instances.
Another difficult issue that could arise In the prosecution
of the cases In Rwanda is that there may be a great number of
defendants accused of the same crimes. The u.s. Supreme Court
has articulated that the risk of prejudice may be heightened if
there are multiple defendants in a case.
For example, in 1946,110 the u.S. Supreme Court had occasion
107Id. at 538-539.
10BId. at 539.
109Id. at 539-40.
l1°Fed. R. Crim. P. 8(a) and (b) and 14 are substantiallyrestatements of existing law outlined then in 18 U.S.C. former§557. See Fed. R. Crim. P. 8 and 14, advisory committee's notes.
33
in Kotteakos v. Uni ted Sta tes 111 to examine the issue of whether
joinder was prejudicial to seven petitioners because they were
named in an indictment, along with with twenty-five others,
charging them with conspiracy where there was only one common key
figure in the transactions proven. 1l2
In Kotteakos, nineteen persons were tried before a jury.ll3
Of the thirteen submitted to the jury, "two were acquitted; the
jury disagreed as to four; and the remaining seven [petitioners]
were found guilty."114 The "common figure" ,115 who pleaded guilty,
acted as a broker placing home improvement loans. 1l6 The U.S.
Supreme Court noted that "[i]n many cases, the other defendants
did not have any relationship with one another, other than [the
common figure] 's connection with each transaction,"ll? and that
"'there were at least eight, and perhaps more, separate and
111328 U.S. 750 (1946)
l12Id. at 752-53.
ll3Id. at 753.
114Id.
115See n. 108.
116Kotteakos, et al. v. U.S., 328 U.S. 750, 753 (1946).
117Id. at 754.
34
independent groups, none of which had any connection with any
other, though all dealt independently with [the common figure] as
their agent.' ,,118
The u.s. Supreme Court ultimately expressed great
dissatisfaction with the initial joining of defendants In such a
manner. One problem the u.S. Supreme Court had with the joinder
was that the indictment charged only one conspiracy, even though
there were "admittedly more" than one conspiracy alleged to have
occurred. 119 Accordingly, it found that the misj oinder
permeated the entire charge [and] the entire trial.Not only did it permit the jury to find each defendantguilty of conspiring with thirty-five other potentialco-conspirators, or any less number as the proof mightturn out for acquittal of some, when none of theevidence would support such a conviction, as the proofdid turn out in fact. It had other effects. One wasto prevent the court from giving a precautionaryinstruction such as would be appropriate, perhaps,required, in cases where related but separateconspiracies are tried together under s 557 of theCode, namely, that the jury should take care toconsider the evidence relating to each conspiracyseparately from that relating to each other conspiracycharged. 120
118Id., citing United States v. Kotteakos, et al., 151 F.2d170, 172 (1944).
119Kotteakos, et al. v. United States, 328 U.S. 750, 754(1946) .
12°Id. at 769.
35
The U.S. Supreme Court discussed in further dicta the
importance of keeping in mind the grave risks of prejudice ln
relation to fulfilling the goals of joinder.
There are times when of necessity, because of thenature and scope of the paticular federation, largenumbers of persons taking part must be tried togetheror perhaps not at all . When many conspire, theyinvite mass trial by their conduct. Even so, theproceedings are exceptional to our tradition and callfor use of every safeguard to individualize eachdefendant in his relation to the mass. . Criminalthey may be, but it is not the criminality of massconspiracy. They do not invite mass trial by theirconduct. Nor does our system tolerate it. That waylies the drift toward totalitarian institutions. True,this may be inconvenient for prosecution, but ourGovernment is not one of mere convenience orefficiency. It too has a stake, with every citizen, inhis being afforded our historic individual protections,including those surrounding criminal trials. 121
The basic reason for the U.S. Supreme Court reversing the
district court's and the appellate court's decisions upholding
the initial joinder was that the alleged conspiracies may have
been related to some degree, but the strength of the relationship
was too weak to sustain joinder where the only nexus in the
conspiracies was that one person participated in them all. 122
Another case which concerned multiple defendants allegedly
121Id. at 772.
122 Id. at 773.
36
involved in a conspiracy was Uni ted Sta tes v. Bl umen thal .123 One
of the issues before the u.s. Supreme Court was whether three of
the five defendants were prejudiced by statements concerning a
conspiracy and introduced into evidence with instructions to the
jury that said statements not be admitted against the three
defendants. 124 The U. S. Supreme Court's rationale in holding that
the admission of statements did not prejudice the three
defendants concerned the instructions which the district court
provided to the jury.
"The statements were adequately excluded, insofar as this
could be done in a joint trial . The rulings told the jury
plainly to disregard the [statements] entirely, in every phase of
the case, in determining [the question of guilt] ."125 The
123 332 U.S. 539 (1947).
124Id. at 539.
125See id. at 539. At three distinct places the court madereferences applicable to the statements. Id., n. 10. First,after stating that the testimony of an accomplice or coconspirator and oral [statements] of a defendant must be receivedwith caution, the court said: 'In this case * * * proof of theconspiracy charged * * * must be made independent of [statements]of any defendant made after the termination of the allegedconspiracy.' Id. Later, the jury was told: '* * * you mustdisregard entirely any testimony stricken out by the Court, orany testimony to which an objection has been sustained. * * * 'Id. Finally, the jury was told: 'Where the existence of acriminal conspiracy has been shown, every act or declaration of
37
probability of the jury incorrectly applying evidence against the
defendants in light of such thorough instructions was minimal. 126
Thus, the likelihood of prejudice to the defendants was slight,
so severance was not necessary.
It may be helpful to keep the above situations in mind as
they pertain to prosecuting multiple defendants in one trial. If
it turns out that the court does not permit separate trials for
defendants, the Office of the Prosecutor for Rwanda could, within
the parameters of the U.N. Rules of Procedure and Evidence, argue
that the jury be admonished as to the rules necessary to find a
defendant guilty. This would serve the additional purpose of
protecting defendants' rights, thereby reducing a ground on which
defendants might successfully appeal any convictions.
each member of such conspiracy, done or made thereafter pursuantto the concerted plan and in furtherance of the common object, isconsidered the act and declaration of all the conspirators, andis evidence against each of them. On the other hand, after aconspiracy has come to an end, either by the accomplishment ofthe common design, or by the parties abandoning the same,evidence of acts or declarations thereafter made by any of theconspirators can be considered only as against the person doingsuch acts or making such statements. In that connection, youwill recall I advised you that the statements made by [the twodefendants] could only be considered by you as against those twonamed defendants.' Id.
126Id. at 559.
38
D. Joinder Procedures in Light of Relevant BritishPrecedent
It is useful to include an examination of British law
because American jurisprudence developed from English Common Law.
United States lawyers sometimes attempt to bolster an argument
that a court should rule a certain way based on the fact that the
particular rule was developed at common law and followed since
common law. The argument can be stated in the alternative, as
well. The fact remains that the concept of joinder arose at
common law and has been followed in England, the United States
and Canada for nearly a century. The following is an overview of
the history and development of joinder in Britain.
1. Joinder and Severance of Offenses
The Indictments Act of 1915, Sch. I, r. 3127 provides:
"Charges for any offenses, whether felonies or misdemeanors, may
be joined in the same indictment if those charges are founded on
the same facts, or from or are part of a series of offenses of
the same or a similar character. U
The House of Lords, in 1964, established the rule that all
charges arising out of the same facts should be included in one
127 5 Halsbury's Statutes 2nd Edn. 998.
39
indictment In Connelly v. D.D.P."28 In that case, the defendant
argued that his robbery charge should not have been tried in the
same case as his murder charge, and the appeals court agreed. 129
Prior to Connelly, it was common for courts to sever murder or
manslaughter charges from other charges. 13o The House of Lords,
however, noted that the Sch. 1, r. 3 "was designed to ensure that
all charges arising out of the same facts are combined In one
indictment and thus to prevent there being a series of
indictments and trials on substantially the same facts."131 It
was also noted that, although courts should not be able to
prevent a trial from taking place, courts should have "residual
discretion to prevent anything which savours of abuse of
process. "132
The United Kingdom's support for joining offenses was
clearly set out when the Judicial Committee of the Privy Counsil,
128 [1964J 2 All E.R. 401, 406. (Emphasis added) .
129 I d .
13°Id.
131 Id.
132Id.
40
in Ariyadasa133, upheld the constitutionality of a Ceylon statute
which permitted joinder under the identical circumstances as Sch.
1, r. 3.
read:
Section 180 of the Criminal Procedure Code of Ceylon
If in one series of acts so connected together and toform the same transaction more offenses than one arecommitted by the same person they may be charged withand tried at one trial for every such offense, and
. such charges may be included in one and the sameindictment.
In upholding the statute, Privy Counsel issued a finding that
trespass, assault and unlawful assembly charges were properly
joined in one indictment against the defendant.
In the initial stages of the defendant's case, he argued
unsuccessfully at his trial, and later to the Supreme Court, that
the ten charges against him were improperly joined. 134 He
asserted that the trespass and assault charges, even if they were
committed in the course of one and the same transaction, in one
indictment was fatal to his case and was unconstitutional. 135
Privy Counsel disagreed, stating that
[i]t is a question for decision in any particular case
133[1965] 2 W.L.R. 1339.
134Id.
135Id.
41
whether the facts out of which charges have arisen areso closely connected and inter-related that it canfairly be said that there was one series of acts andthat the acts by being connected constituted one andthe same transaction. 136
Privy Counsel did not express difficulty in deciding that joinder
of charges was proper because of the close connection between the
trespass and assault charges. 137 It was unquestionable that the
indictment could properly allege the two offenses in the same
indictment, Privy Counsel held, because the assaults allegedly
took place while the defendant was illegally on the land. us
The above concept is very close to the "related in time"
principle which American courts have used as a basis for
sustaining joinder.
A case which illustrates how far in time the "related In
time" principle can be stretched is Ludlow v. Metropolitan Police
Commissioner. 139 The defendant was convicted on the same
indictment for theft from a private dwelling, which allegedly
136Id.
137Id.
13S Id.
13 9 [1970] 1 All E. R . 567.
42
occurred on August 20, 1968, and theft from a bar, 140 allegedly
occurring on September 5, 1968. 141
The House of Lords analyzed the facts of the case in light
of Sch. 1, r. 3 of the Indictments Act 1915. 142 The House of
Lords framed the issue as "whether the two offenses formed a
series of offenses of a similar character."143 It used a two-part
analysis in applying the facts to the rule. 144 First, the House
of Lords determined that, even though there were only two acts
charged, it was legally permissible to consider the acts as
constituting a series .145 Next, the Court determined that the two
acts of larceny constituted a series because there was a nexus
between the offenses. 146 "Nexus is a feature of similarity which
140 Id. at 570. The defendant was alleged to have not paidfor alcohol he consumed at the bar. Id.
141Id.
142Id. at 572-73.
143 Id at 573.
144 Id.
145Ludlow v. Metropoli tan Police Commissioner, [1970J 1 AllE.R. 567, 573. (Emphasis added). The House of Lords made itsdetermination based on a rule set out by the British Court ofAppeal in R. v Kray, [1969J 3 All E.R. 941. Id. (Holding itpermissible to consider less than three acts a "series".) Id.
146Id. at 573.
43
in all the circumstances of the case enables the offenses to be
described as a series. 1/147
The House of Lords cited the rule pertaining to "nexusl/ of
offenses: " , offenses cannot be regarded as of a similar
character for purposes of joinder unless a sufficient nexus
exists between them. Such nexus is certainly established if the
offenses are so connected that evidence of one would be
admissible on the trial of the other.' 1/148 Applying the facts to
the rule, the House of Lords concluded that since the defendant's
charges were both theft-related, and they involved stealing in
neighboring public houses, all in a period of 16 days, there was
support for joinder. 149
It is significant that the House of Lords was comfortable
with a broad construction of the joinder statute because "'any
risk of injustice [in joining offenses] can be avoided by the
exercise of the judge's discretion [per Sch. I, s. 5(3) of the
Indictments Act 1915] to sever the indictment.'I/Iso
147 Id.
148 I d . at 574, cit i ng R. v. Kra y , [19 6 9 ] 3 All E. R . 941.
149Ludlow v. Metropoli tan Police Commissioner, [1970] 1 AllE .R. 567, 574. (Emphasis added) .
1SOId. at 574, citing R. v. Kray, [1969] 3 All E.R. 941.
44
The Ludlow Court also held that severance of the larceny
counts was not necessary because the defendant had little risk of
prejudice, as it was unlikely that the facts of two larcenies
could be confused, and the offenses charged were not too numerous
or complicated. 151
Although it is uncommon, in some instances courts hold that
joinder of offenses was prejudicial to a defendant or to the
state, and grant a new trial. In R. v. Lewis,152 for example, the
defendant went to his estranged girlfriend's house, vandalized
her and her boyfriend's vehicles and threatened to kill them. 153
When he was at the police station, having been arrested for his
behavior, he assaul ted a pol ice of f icer . 154 Among the charges in
the indictment against him were threats to kill the couple and
assault on the officer. 155 The defendant was able to convince the
Court of Appeal that the two said charges were improperly
151Ludlow v. Me tropoli tan Police Commissioner, [1970] 1 AllE.R. 567, 576.
152 [1992] Crim. L.R. 192.
153Id.
154Id.
155 Id.
45
joined. 156
The basis for the Court of Appeal agreeing that the charges
were improperly joined was twofold. First, the assault charges
were not founded on the same facts or evidence as the charges
regarding his violence toward the couple. 157 The assault on the
police officer at the station arose from an argument with the
officer .158 Second, the latter incident at the police station was
not part of a series of offenses of the same or similar character
because the former "[charges] were threats to kill, threats to
damage property, criminal damage and possession of an offensive
weapon. ,,159 The Court of Appeal noted that the trial judge abused
his discretion by not severing the clearly unrelated assault
charge from the other charges when the defendant and the state
requested severance before trial. 160 The defendant's convictions
were subsequently squashed by the Court of Appeal. 161
156 Id.
157 Id.
158R. v. Lewis, [1992] Crim. L.R. 192.
159 Id.
160Id.
161Id.
46
The above cases illustrate how broadly joinder of offenses
was, and still is, construed by courts. Courts will try to find
a relationship between offenses to keep them joined, namely in
the interest of judicial economy. It is also clear that a court
has to find a significant likelihood of prejudice to the
defendant or to the Crown before it will sever charges.
2. Joinder and Severance of Defendants
Although the British courts decided that the Indictments Act
of 1915 Sch. 1, r. 3 permitted joining of offenses against a
defendant if they arose from the same transaction, whether this
rule also permitted joining defendants together for trial was a
source of disagreement among courts for a period of time.
For instance, in R. v. Bingham,162 the Central Criminal Court
clearly expressed the view that the decision concerning joinder
of defendants is reserved for discretion of the trial judge.
In Bingham, the issue was whether an indictment charging
eight defendants with several common crimes 163 among the SlX
alleged, was permissible. 164 The Central Criminal Court stated:
162[1964] Crim. L.R. 327.
163Id. The charges stemmed from a fight among and around thedefendants. Id.
164Id. at 327.
47
It appears to me that this matter is one which isessentially one for the discretion of the trial judgein each individual case. It does not appear to me thatit can be laid down as a cast-iron rule that separatecharges against different persons for differentoffenses can never, apart from statutory provision, bejoined in one indictment. . In so far as generalpropositions can be laid down, the tendency of thecourt would be against joining separate charges againstseparate persons in one indictment unless some goodreason is shown for so doing. I can see nothing in lawto prevent such joinder taking place if good reason beshown.
Thus, the Central Criminal Court's suggestion appeared to be
that, absent a good reason for not joining defendants together in
one indictment, such joinder is acceptable.
The British courts also had occasion to address the issue of
whether it is permissible to join defendants together in one
indictment when they are charged with totally distinct crimes.
The case of R. v. Smi th165 presented just that issue.
There, three men were charged in the same indictment for
three separate acts of incest upon a girl. 166 The Court of
Criminal Appeal held that the indictment should be quashed,
agreeing with the defendants' arguments that it was defective
since it charged three separate offenses of three separate
165[1960J Crim. L.R. 267.
166Id. at 267.
48
defendants ."67 The Court of Criminal Appeal also noted that it
may be proper for the judge, under Indictments Act 1915, s. 5(3),
to sever the counts for separate trials.
The issue of whether two defendants charged with different
counts could be tried together was addressed again in R. v.
Assim. 168 This case exemplified the circumstances in which, and
rationale for, several offenders charged with individual offenses
being tried together. 169
In Assim, the defendant was convicted in a lower court of
maliciously wounding another person. 170 The defendant was
indicted with another man "who was convicted on a separate count
of assault. ff171 The defendant-appellant asserted that "'the court
had no power in law to try two defendants on an indictment
containing only two counts, 'ff one pertaining to each defendant. 172
The defendant also argued that, at common law, there could only
167Id. at 268.
168 [1966] 2 All E.R. 881.
169Id. at 882.
170 Id.
171Id. at 882-83.
172 Id. at 883.
49
be joinder of offenders if they had both participated In the
offense charged. 173
The British Court of Criminal Appeal did not accept the
defendant's arguments as accurate and pointed out that in as
early as 1844, joinder of several accused persons in the same
count for "feloniously inciting another to forge a will,
notwithstanding that only separate and independent acts done at
separate and distinct times were alleged," was proper. 174 The
Court went on to say,
While certain definite principles as to joinder havebeen established - as, for example, that there can beno joint trial of separate indictments (Crane v.Director of Public Prosecutions, [1921J All E.R. Rep.19), and that wholly disconnected and dissimilaroffenses ought not to be joined in the same indictmenteven against the same accused, (R. v. Muir, [1938J 2All E.R. 516), - it is noteworthy that no decisiondirectly or clearly in support of the appellant's[position] was cited to the court. 175
The Court further stated that "questions of joinder, be they
of offenses or offenders, are matters of practice on which the
court has, unless restrained by statute, inherent power both to
formulate its own rules and to vary them in the light of current
173Id. at 884.
174Id. at 885, citing [1844] 1 Car. & Kir. 434.
175R. v. Assim, [1966] 2 All E.R., 881, 886.
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experience and the needs of just ice. ,,176 Thus, a court has
discretion in deciding whether joinder of offenses lS permissible
given the facts of the particular case .177
Later, the Queen's Bench examined an interesting issue which
has not yet been addressed in this memorandum: whether
magistrates can insist on concurrent trials where (1) there are
two informations [charging instruments]; (2) the defenses are
separate; and (3) the defendants do not wish to proceed to trial
jointly.l78 In that case, one defendant was charged with child
neglect and another was charged with murder of the same child. 179
The Queen's Bench applied the law from the Assim case in R.
v. Camberwell. 180 It adopted the rule, to be applied to all
courts, that where two offenses could be tried together, they
could be the subj ect of concurrent trials, as well. 181 Therefore,
the Queen's Bench stated, the magistrate had not abused his
177Id. at 887.
178 [1978] QB 602.
180Id.
181Id.
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discretion because "it lS permissible to join in one committal
proceeding two or more proceedings if those proceedings could be
joined together in an indictment." 182
The Queen's Bench ruling in that case appears to have a lot
to do with judicial economy, which has been a recurrent theme in
this memorandum.
E. Joinder of Offenses, Joinder of Defendants andSeverance in Light of Relevant Canadian Precedent
The following cases represent the evolution of Canada's
interpretation of whether defendants charged with separate crimes
in separate indictments can be tried together. The cases help to
conceptualize the process a court goes through over time to adapt
to a changing society. Taken together, they demonstrate the
necessity of achieving judicial economy while taking precautions
to preserve the rights of defendants, as well as the struggles
which ensue when courts begin to deviate from past, familiar
precedent.
The following section may be helpful to the Office of the
Prosecutor for Rwanda because of its stated need to adapt, and
importance of adapting, to new procedures.
The original rule regarding the issue of joining separate
182Id.
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informations in one trial was set out in R. v. Balciunas. 183
There, the defendant was charged in three separate informations
for (1) of knowingly receiving stolen wrist-watches; (2) keeping
the property he knew to be stolen; and (3) knowingly retaining
another stolen wrist -watch. 184 The defendant was determined to be
guilty on all charges at a bench trial. 18s On appeal, the Supreme
Court of Canada affirmed the Court of Appeal's decision to set
aside the defendant's convictions on the ground that the single
charge sheet, which set forth the prosecutor's three separate
charges, was invalid. 186
Canada did have, via Sec. 856 of the Criminal Code, a
provision permitting joinder of counts in the same indictment .187
As in Britain and America, it was also left to the discretion of
the trial judge whether to sever the counts. 188 At the time,
183[1943] S.C.R. 317.
184Id. at 318.
185Id.
186 Id.
187 Id at 319. The rule provided that \\ [a] ny number of countsfor any offences whatever may be joined in the same indictment
provided that to a count charging murder no count chargingany offense other than murder shall be joined. Id.
188 Id.
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however, the Supreme Court of Canada distinguished between counts
which were charged in the same indictment and several different
informations being brought together at the time of trial.
Eighteen years later, in R. v. Elkins,189 the British
Columbia Court of Appeal, in keeping with the Balciunas decision,
above, held that even though it was permissible to charge more
than one count in an indictment or more than one offence in an
information, it was impermissible to try separate indictments or
informations together. 190 Similarly, although statutorily
permissible to try more than two accused persons in one trial, it
would not be permissible to have a joint trial of defendants
where each was charged in separate indictments. 191
The British Court of Appeal explained that the rationale for
not permitting one trial on two separate indictments or
informations. "The reason for this is, that evidence admissible
on one charge is inadmissible on the other and the real effect is
the prejudice that may arise from treating the evidence
189[1961] B.C. 314.
190Id. at 314, PN.
191 Id.
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cumula ti vely and convicting upon it as a whole. 11192
Canadian courts continued to disallow joinder of separate
indictments until as recently as 1983, when the Canada Supreme
Court began to ponder the utility of not permitting single trials
of a defendant on more than one indictment.
The charges against three defendants in R. v. Phillips193
arose out of the same transaction,194 and the defendants consented
to a j oint trial. 195 After being convicted, two of the de fendants
appealed, stating that the joinder of their separate indictments
for one trial was not permitted by statute, and that their cases
were prej udiced by the third defendant's additional charge. 196
The Supreme Court of Canada stated that it followed English
Common Law as far as permitting offenses and defendants to be
joined together, but it could find no early British authority to
support joining separate indictments together. 197
192Id. at 316.
193[1983] 2 S.C.R. (3d) 161.
194 Id. at 162. In fact, the informations were identical,save the name of the person charged. Id.
195Id.
196Id at 163.
197Id at 165.
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The Supreme Court of Canada observed that the Ontario Court
of Appeal had recently allowed such trials. 198 The Supreme Court
of Canada appreciated the rationale of the Ontario Court:
[pJrocedural changes in the Criminal Code. . havebeen such as to enable one to discern a legislativeintention that criminal procedure should beexpeditious, convenient, sensible and not undulytechnical, but subject always to the overriding duty ofthe Court to ensure that the interests of the accusedare fully protected and that his right to a fair trialis in no way prej udiced. 199
However, the Supreme Court was unwilling to hold that the
rules should change, largely because it feared that the "dangers
of prejudice and injustice outweighed any advantage or
consideration of efficiency thought to be gained by the
joinder. ,,200
The concept of judicial economy and fairness to litigants is
at the heart of issues concerning joinder. It may be beneficial
to pause and notice the amount of time and resources Canada spent
defending its statute that two separate informations could not be
brought together at trial. All of the cases above cite numerous
198Id. at 166, citing R. v. Kennedy, (1971), 3 C.C.C. (2d)58.
199R. v. Phillips, [1983] 2 R.C.S. 161, 167, citing R. v.Kennedy, (1971), 3 C.C.C. (2d) 58, 67.
200R. v. Phillips, [1983] 2 R.C.S. 161, 171.
56
...
other cases where the exact same issue was brought before various
appellate courts throughout Canada.
In 1992, however, the Supreme Court of Canada determined
that it was "time to reconsider the rule that separate
informations cannot be jointly tried," in R. v. Clunas. 201 The
Canada Supreme Court decided that, from that point forward, it
would be permissible in the provincial courts for single trials
to occur on several indictments, provided both the defendant and
the province agreed beforehand. 202 The Supreme Court recommended
that the American Federal Rules of Criminal Procedure guidelines
regarding joining of indictments might be.
It is curious that prosecutors did not simply join counts
against defendants in one indictment in some of the earlier
cases. The Supreme Court's concern that it protect defendants is
admirable, and may explain its previous reluctance toward change.
The benefit of a statute permitting severance in the event of
misjoinder or prejudicial joinder seems to serve as a safety
check on parties' rights, if not an absolute safeguard.
It might also be that the importance of judicial economy has
201[1992] 70 C.C.C. (3d) 115.
202Id.
57
come about with the increase of litigation. The above cases are
important because they serve as a reminder that courts and laws
must respond and be created, respectively, to adapt to society's
changes.
IV Conclusion.
It is definitely possible that the Office of the Prosecutor
for Rwanda could utilize the U.N.'s Rules of Procedure and
Evidence 48 and 49 to argue for or against joinder of defendants
or joinder of defendants. The view concerning joinder in the
United States, Britain and Canada is that joinder be broadly
construed to contemplate many kinds of joinder. A broad
construction of joinder serves the interest of judicial economy
in that it avoids expensive, duplicate trials which involve the
same sets of facts. The possibility of prejudice to defendants
or to the Government can be addressed through the use of a
severance statute. Whether or not a severance statute is
available, it is always beneficial to take precautions to ensure
that the risk of prejudice is reduced by ensuring that juries
receive clear instructions on how to determine a defendant's
guilt or innocense.
58