In Illinois, multiple defendants can be charged with the same or similar crimes in the same charging document, the information or indictment. A criminal defendant or the State may want to file a motion to sever the co-defendants if prejudiced by the joinder of the co-defendants. The trial court has the authority to sever the trials and order separate trials or provide any other relief that justice requires.
There are two main types of prejudice that can result in severance of co-defendants’ trials. One is interference with the constitutionally protected right to confront the witnesses, which occurs when a co-defendant’s out-of-court statements that implicate the defendant are admitted at trial. The other occurs when the co-defendants’ defenses are so antagonistic that one of them cannot receive a fair trial jointly with the others. Defenses are antagonistic when each co-defendant implicates the other in the offense while professing his or her own innocence.
If co-defendants are charged with sex crimes arising out of the same course of conduct, the court in deciding whether to sever the trials and order separate trials must consider, subject to constitutional limitations, the impact upon the victim of multiple trials requiring the victim’s testimony.