Have you been charged in Lincoln or Omaha, Nebraska with committing multiple offenses? Were those charges consolidated in one criminal complaint or information? Does the charging document allege those various offenses took place at different times and even involve different victims? It’s normal to feel like the Government shouldn’t be able to package up every alleged crime into a single case. This is especially true when those allegations involve different people, dates, and statutory elements.
The reality is prosecutors in Nebraska – regardless of jurisdiction – frequently combine various crimes, victims, and dates into one case. This type of consolidation occurs in both felony and misdemeanor cases. It is common to see joinder of offenses in cases involving allegations of sex assault; especially when the Government alleges multiple victims and offense dates.
Why is the Government allowed to consolidate various offenses? Is it proper to consolidate no matter what? What can be done to fight a consolidated case? Those are all reasonable questions that require further explanation.
Why can charges be consolidated in Nebraska?
The reality is Nebraska law gives prosecutors the ability and discretion to join criminal offenses. Under Nebraska Revised Statute Section 29-2002, two or more offenses may be charged in the same indictment, information, or complaint if the offenses are (1) of the same character; or (2) are based on the same act or transaction; or (3) are comprised of two or more acts or transactions connected by a common scheme or plan. Nebraska has adopted language from federal law which makes joinder permissible to join offenses for disposition if those offenses are “of the same or similar character.” Fed.R.Crim.P. 8(a). In short, the more various offenses are “inextricably intertwined” the more likely the Government will consolidate the case.
When is consolidating offenses proper?
The Government has a lot of flexibility to decide how similar the facts and circumstances of a case are. To determine whether offenses (of any type) are properly joined is a two-stage analysis:
(1) whether the offenses are sufficiently related to be joinable (factors identified above) and
(2) whether the joinder is prejudicial to the defendant.
Keep in mind that prejudice from joinder cannot be shown if evidence of one charge is admissible in a separate trial of another charge. Either way, there is a strong presumption against severing properly joined counts because there’s no constitutional right to a separate trial.
What can be done to find charges consolidated in a single charging document?
Is all hope lost or can defense attorneys do something to break apart consolidated charges? Under Neb. Rev. Stat. § 29-2002, the burden is on the party challenging a joint trial to demonstrate how he or she is prejudiced by the consolidation of charges. This “challenge” is often brought in the form of a “Motion to Sever”.
The goal of a Motion to Sever is to demonstrate to the Court that joined offenses do not arise out of the same act or transaction. It is also important that the facts of alleged offenses are not closely linked in time, place, and circumstance. Most importantly, a Motion to Sever argues that consolidation will compromise a defendant’s presumption of innocence.
In terms of what amounts to prejudice, let’s look at a hypothetical example. Imagine a case where a defendant is alleged to have committed domestic violence against Victim A on Day 1. The defendant was then alleged to commit sexual assault on Victim B on Day 2. If the Government consolidates the case, and puts on evidence for the separate offenses in the same trial, there’s risk the jury might improperly conclude that if the defendant committed a crime against Victim A, then he or she must have also committed the offense against Victim B – that situation seems improper, right?
For starters, domestic violence and sexual assault are different crimes with different elements under their respective statutes. That means the State must establish different facts beyond a reasonable doubt to prove each offense. It’s critical that a Motion to Sever explain why the underlying facts needed establish the elements of different crimes are not the same for each alleged victim in the case. The more a Motion to Sever can demonstrate why the jury in a consolidated case cannot easily separate out the evidence during deliberations, the better.
While the goal of a Motion to Sever may seem straightforward, the reality is there’s a strong presumption against severing properly joined counts. Nebraska courts believe that joinder is not prejudicial. Even if the evidence relating to both offenses would be admissible in a trial of either offense separately. Going back to the example above, if the Court would allow evidence from Victim A’s trial to be admissible in Victim’s B trial, and vice versa, then prejudice likely does not exist, and the offenses can be tried together in one case.
Simply put, the Government wants, and is counting on, a defendant to be too deterred from challenging a consolidated case. However, the accused’s freedom cannot afford to be deterred by an uphill fight to break apart a consolidated case. This is especially true when it’s necessary to achieve a fair determination of innocence or guilt. There are multiple benefits to filing a Motion to Sever, so don’t get discouraged before you consult with an attorney. We want to ensure the jury does not hear the evidence related to all the charges in the same trial.
In the event you or someone you know is facing multiple criminal offenses in the same case in Lincoln, Omaha, or any other city or county in Nebraska, please contact the experienced criminal defense attorneys at Berry Law so we can analyze your case and determine the best strategy for defending your freedom.
