Prejudice may develop when an accused wishes to testify on one but not the other of two joined offenses which are clearly distinct in time, place and evidence. His decision whether to testify will reflect a balancing of several factors with respect to each count: the evidence against him, the availability of defense evidence other than his testimony, the plausibility and substantiality of his testimony, the possible effects of demeanor, impeachment, and cross-examination. But if the two charges are joined for trial, it is not possible for him to weigh these factors separately as to each count. If he testifies on one count, he runs the risk that any adverse effects will influence the jury's consideration of the other count. Thus he bears the risk on both counts, although he may benefit on only one. Moreover, a defendant's silence on one count would be damaging in the face of his express denial of the other. Thus he may be coerced into testifying on the count upon which he wished to remain silent. It is not necessary to decide whether this invades his constitutional right to remain silent, since it constitutes prejudice within the meaning of Fed. R. Crim. P. 14.
Defendants were charged in Count I with robbery and charged with a distinctly different robbery in Count II. Defendants were denied pretrial motions for severance of the counts. During trial, one defendant indicated that he wished to testify on one count, but not the other. However, because the counts were consolidated, he was forced to testify on both counts. His denial on Count II was very strong and convincing, while his denial on Count I was evasive and unconvincing. Defendants were convicted on Count I and acquitted on Count II. Defendants contended that the lower court erred in refusing to sever the counts. The court vacated the judgment on Count I, and remanded for a new trial on that count.
Did the District Court err in refusing to sever the counts for trial?
The court held that severance of the counts was required because the joinder embarrassed and confounded defendant in making his defense, thus joinder was prejudicial. The court held that that the resulting prejudice on Count I was not cured by the acquittal on Count II because defendant had no "fair choice" in taking the stand. The court found that the second defendant might have also been prejudiced where the first defendant was coerced by the joinder to testify.