(a) On Court’s Own Motion. The court may order a severance of offenses or defendants before trial if a severance could be obtained on motion of a defendant or the prosecution under subdivision (b) of this rule. (b) On Motion of Prosecution or Defense.(1) Severance of Offenses.(A) Whenever two or more offenses have been joined for trial solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses. (B) The court, on application of the prosecuting attorney, or on application of the defendant other than under subparagraph (A), shall grant a severance of offenses whenever,
(i) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or (ii) if during trial upon consent of the defendant, or upon a finding of manifest necessity, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. (2)Severance of Defendants. Whenever two or more defendants have been joined together in the same information or indictment,
(A) On motion of the prosecuting attorney or a defendant before trial, the court shall grant severance of one or more defendants if the court finds that they are not joinable under Rule 8(b)(2). (B) On motion of the prosecuting attorney before trial, other than under subparagraph (A) of this paragraph, the court shall grant severance of one or more defendants if the court finds that there is no reasonable likelihood of prejudice to any defendant. On motion of the prosecuting attorney during trial, the court shall grant severance of one or more defendants only with the consent of the defendant or defendants to be severed or upon a finding of manifest necessity. (C) On motion of a defendant for severance because an out-of-court statement of a codefendant makes reference to, but is not admissible against, the moving defendant, the court shall determine whether the prosecution intends to offer the statement in evidence as part of its case in chief. If so, the court shall require the prosecuting attorney to elect one of the following courses:
(i) a joint trial at which the statement is not admitted into evidence; (ii) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been deleted, provided that the court finds that the statement, with the references deleted, will not prejudice the moving defendant; or (iii) severance of the moving defendant. (D) On motion of a defendant other than under subparagraph (A) or (C) of this paragraph, the court shall grant severance of the moving defendant unless the court finds that there is no reasonable likelihood that that defendant would be prejudiced by a joint trial. (E) In determining whether there is no reasonable likelihood that a defendant would be prejudiced, the court shall consider among other factors whether, in view of the number of offenses and defendants charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense and as to each defendant. (F) The court may, at any time, grant severance of one or more defendants with the consent of the prosecution and the defendant or defendants to be severed. (3)Failure To Prove Grounds for Joinder of Defendants. If a defendant moves for severance at the conclusion of the prosecution’s case or of all the evidence, and there is not sufficient evidence to support the allegation upon which the moving defendant was joined for trial with the other defendant or defendants, the court shall grant a severance unless the court finds that, despite this lack of evidence, there is no reasonable likelihood that the moving defendant would be prejudiced by a joint trial. (4)Timeliness of Motions; Waivers; Double Jeopardy.(A) A defendant’s motion for severance of offenses or defendants must be made before trial, except that a motion for severance may be made before or at the close of all the evidence if based upon a ground not previously known. Severance is waived if the motion is not made at the appropriate time. (B) On any motion for severance of offenses or defendants, the court may order the prosecuting attorney to disclose, in camera or otherwise, any information that it intends to introduce as evidence and that would assist the court in ruling on the motion. (C) If a defendant’s pretrial motion for severance was overruled, that defendant may renew the motion on the same grounds before or at the close of all the evidence. Severance is waived by failure to renew the motion. (D) Unless consented to by the defendant, or unless granted upon a finding of manifest necessity, a motion by the prosecuting attorney for severance of counts or defendants may be granted only prior to trial. (E) If a motion for severance is granted during the trial and the motion was made or consented to by the defendant, or was granted upon a finding of manifest necessity, the granting of the motion shall not bar a subsequent trial of that defendant on the offenses severed.
