There is a word in the criminal community for a person who snitches on another. That snitch is commonly referred to as a “Rat.” In a lot of situations, a “Rat” is facing the same exact charge or charges as the person they ratted out. Often times a “Rat” is a confidential informant, a person who works with the police and government either for financial gain or to reduce a potential sentence on a criminal case. But sometimes the “Rat” isn’t a CI and can be someone you least expect. Someone who is very close to you such as a friend or family member. In this situation, things can get awkward quickly especially if you are sitting next to each other at the defense table during a criminal trial. Under that guise, I would like to explore the following hypothetical.
Picture this: you and your buddy decide to steal a mutual acquaintance’s state of the art 96-inch OLED television while said mutual acquaintance is on vacation. You both work with the guy. You know he has a vacation coming up because the guy can’t stop blabbing about it. You also know he has a sick TV because of his Super Bowl party that you attended.
In anticipation of the TV heist, your buddy rents a U-Haul vehicle to transport the television. After the acquaintance leaves town, you and your buddy pull up to your co-worker’s home, break the window on the back porch and enter the home to remove the television. You both take the television down from the wall and wrap it in a bed sheet and then transport it to the U-Haul. You then drive away and sell the television for $1200 to a random buyer at a Turnpike rest stop.
Two weeks later your acquaintance comes back from vacation. He sees the broken glass and notices immediately that his prized television is missing. He calls the cops. They come out and canvass the area for cameras. They dust for prints and they collect evidence. As it turns out, there are cameras facing the driveway. They check the cameras for anything unusual and they see a U-Haul backed into the victim’s driveway and two people dressed in black removing what appears to be a large object and placing it into the back of a large white truck. The faces of the burglars are not visible. However, the license plate on the U-Haul is visible. The cops now have a lead.
The cops also examine a piece of broken glass near the back porch that appears to have a blood stain on it. Now your buddy didn’t tell you, but he was cut on the night of the incident. His blood is now at the scene of the crime. Your buddy has a rap-sheet including several arrests and convictions in Broward County for domestic violence and his DNA has already been stored in a criminal database for future comparison.
The cops begin to investigate. The DNA is sent to a lab to be processed. The U-Haul dealer has been contacted and their records subpoenaed. It turns out the DNA is a one and two billion match to your buddy. The U-Haul was also rented in his name and at the time of the rental he provided a working telephone number and his address. The cameras show your buddy inside the store at the counter giving his credit card to rent the vehicle. The cameras show him returning the vehicle the day after the burglary. The employee who did the transaction remembers your buddy and was able to pick him out of a photo line-up. The police now have probable cause to arrest him.
Now the cops aren’t stupid. They know this was a two-person job. They see from the camera that two people were lifting the giant television and placing it into the back of the U-Haul. They know who suspect one is. They still have no clue who suspect number two is (You).
So, the cops investigate further. They reach out to the victim and ask him if he knows the guy they have on camera renting the U-Haul used in the burglary. The victim advises the police that not only does he know him, but he works with him every day. The police ask the victim if he knows who might’ve assisted the guy in stealing his TV. The victim all too quickly tells the police about another guy from work that the suspect is always hanging out with. This is the first time that your name is mentioned in connection with this burglary.
All the cops wanted was a second name. They got it. And now they are going to do their best to get a statement from your buddy incriminating YOU as the second participant in this hypothetical burglary.
So naturally the cops come to your place of work and arrest your buddy. They take him to the police station and put him in a small conference room. He is handcuffed to the chair. Scared and afraid and without a Broward County criminal defense lawyer present he waives his Miranda Rights and starts to sing.
He says the whole thing was your idea. He said it was because the victim got promoted at work and you were upset about it. That you took the TV down from the wall. That you arranged to have the U-Haul. That you paid for the U-Haul. That you directed him to help lift the TV in the vehicle. He also told the police that if you didn’t help him get the TV that you would kill him and his mother. He told the police that he only went along with it because he was scared of you.
Based on your buddy’s statement the police draft an arrest warrant. The arrest warrant is what they rely on to take you to jail. After you are booked and processed into the main jail in Fort Lauderdale, the real fun now begins.
Now in this situation you and your buddy are considered co-defendants. You are accused of committing the same burglary crimes during the same incident. In the past when two people were facing the same charges and one co-defendant made statements against the other, the criminal defense attorneys were quick to file a motion to sever defendants.
What this means is because one co-defendant’s statement incriminates another co-defendant that they should not be tried together. Meaning the co-defendants would be entitled to separate trials where a jury would not hear the other co-defendants incriminating statement.
In our hypothetical, your buddy has ratted you out. He told the cops it was your idea. He told the cops that you were heavily involved in planning and executing the burglary.
The problem facing criminal defense attorneys in Broward County and throughout the State of Florida is that there has been a string of newer case law that is bad for defendant’s in this situation. Case law that says another co-defendant’s statement is admissible against the other co-defendant with certain safeguards. That the statements alone are no longer grounds to sever. That means despite one co-defendant incriminating the other both co-defendants should get tried together.
This all started in 2023 when the United States Supreme Court in a split 6-3 verdict tossed out the long-standing caselaw that required severance in these cases. Instead, they ruled that one defendant’s confession may be used in a joint trial so long as they refer to the other defendant as “other person” instead of by their name. As the dissent pointed out, this redaction is basically meaningless in a two co-defendant case because it will be obvious to everyone that the “other person” the co-defendant is referring to is the other person sitting at the defense table. In 2025 in Alford v. State, the Florida Fourth District Court of Appeals, relying on the holding in the Samia case, held that statements of co-defendants can be used so long as they don’t “directly implicate” the other co-defendant, further undermining the availability of severance in such cases.
Now, I recently had a situation where I knew it was in the best interest of my client to try and sever their case from their co-defendant’s. In my case, the co-defendant was accusing my client of firing shots that ultimately lead to the death of another person. But there was a wrinkle to the story and that wrinkle included the possibility that my client threatened or forced the other person to partake in the alleged criminal conduct by placing them at gunpoint. This argument was potentially very damning and prompted me to research another way to try and get my defendant’s trial severed from his co-defendant.
Back to our hypothetical. Your co-defendant has accused you of committing a burglary. In fact, your co-defendant has said the whole thing was your idea. And to make matters worse, he has accused you of making threats of harm to not only himself but his mom, should he not assist you in committing a crime.
Now here is where having an experienced criminal defense attorney can help you. Your criminal defense attorney does a deep dive into the evidence in your case. Your criminal defense attorney watches the videos. He does not see you in the videos. Meaning there is clearly two people pictured but they are wearing all black and no facial features or hair color can be seen. None of your DNA and or fingerprints were left at the scene of the crime. You didn’t give a statement. Nobody at the U-Haul store can testify that you ordered, picked up or dropped off the vehicle. Your credit card and ID were not used to secure the rental and you’re not on camera inside the store or at the parking lot. Your criminal defense attorney looks at the State’s evidence and opines that the only evidence against you is that from your co-defendant’s statement.
Now the criminal defense attorney has a trial strategy. That strategy is to point out that your co-defendant is the only reason why you are sitting at the defense table. That none of the other evidence in the case suggests that you had anything to do with it. So why would your co-defendant have motivation to lie? I can think of a few reasons. But the issue we are tackling is should you and your buddy be tried together? And the answer to that question is not necessarily black or white.
The argument to sever your case is crystal clear: all of the State’s evidence points to your buddy committing the crime and not you. There is a mountain of evidence against your co-defendant. So naturally he is blaming you. The argument is that your buddy is not just incriminating you by making statements against you, but he is also saying you threatened to kill him, and his mother should he fail to go along with your plan. These alleged threats are very damning and could amount to a jury hearing about potential criminal charges/allegations that you are not on trial for. That puts you in a position where you are defending yourself against charges that the State has not accused you of. In this hypothetical, the co-defendant’s criminal lawyer is actually going to get up there and act as a second prosecutor trying to convict you as much as he or she is trying to prove to a jury that his/her client should be found ‘not guilty.’ All of these issues and more are why you need to hire an experienced criminal defense attorney in Fort Lauderdale, FL.
Fort Lauderdale Criminal Defense Lawyer Providing Experienced Defense Representation
Below is the legal jargon from a motion that our Fort Lauderdale criminal defense lawyer recently filed.
Legal Analysis
I. The Court Must Grant Severance to a Defendant When There Is a Likelihood of Potential Prejudice from a Joint Trial.
On motion of the defendant before trial, the court “shall order a severance of defendants and separate trials … [when] appropriate to promote a fair determination of the guilt or innocence of 1 or more defendants.” Fla. R. Crim. Proc. 3.152(b)(1)(A) (emphasis added). “[S]everance should be granted whenever it appears likely that potential prejudice may arise at trial.” Crum v. State, 398 So.2d 810, 811 (Fla. 1981) (emphasis added) (citing American Bar Association. ABA Standard for Criminal Justice 13-3.1(b) (2d ed. 1980)). The primary and overriding objective in any trial is the fair determination of the defendant’s case. Id. (“objective of fairly determining a defendant’s innocence or guilt should have priority over other relevant considerations such as expense, efficiency, and inconvenience.”).
II. Courts Have Identified Numerous Circumstances that Require Severance of Defendants.
Florida state courts have identified several bases on which a court can and should grant a motion to sever under Florida Rule of Criminal Procedure 3.152. Federal courts have extensively reviewed the circumstances that require severance under Federal Rule of Criminal Procedure 14. Rule 3.153 is closely modelled after Rule 14 and Florda state courts have cited with approval the federal caselaw and found it to be persuasive. See e.g. Wilson v. State, 298 So. 2d 433, 435 (Fla. 4th DCA 1974); Wright v. State, 318 So.2d 477, 478 (Fla. 4th DCA 1975).
In Zaifro v. United States, 506 U.S. 534 (1993), the Supreme Court of the United States detailed the circumstances which can form the basis for severance under Federal Rule of Criminal Procedure 14. The Court held that a trial court should grant severance when:
The amount of federal caselaw regarding severance of defendants is substantially larger and more developed than Florida state caselaw due to the nature and scope of federal investigations and prosecutions.
…a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant. For example, evidence of a codefendant’s wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty. When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened. Evidence that is probative of a defendant’s guilt but technically admissible only against a codefendant also might present a risk of prejudice. Conversely, a defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a joint trial. The risk of prejudice will vary with the facts in each case, and district courts may find prejudice in situations not discussed here.
Id. at 540.
One possible basis for severance thus occurs when a defendant accuses the other defendant of committing the crime, causing their defenses to be antagonistic, irreconcilable, and/or mutually exclusive. Crum v. State, 398 So.2d 810, 811-812 (Fla. 1981) (“By denying the motion, the trial court forced [the defendant seeking severance] to stand trial before two accusers: the State and his codefendant.”); United States v. Haldeman, 559 F.2d 31, 71 (D.C. Cir. 1976) (“To warrant a severance, in short, the accounts of co-defendants must be ‘on a collision course.’” ) (internal citations omitted). The Ninth Circuit Court of Appeals in United States v. Tootick, 952 F.2d 1078, 1082-1083 (9th Cir. 1991) explained in depth the rationale for this basis for severance:
Defendants who accuse each other bring the effect of a second prosecutor into the case with respect to their codefendant. In order to zealously represent his client, each codefendant’s counsel must do everything possible to convict the other defendant. The existence of this extra prosecutor is particularly troublesome because the defense counsel are not always held to the limitations and standards imposed on the government prosecutor.
Opening statements, as in this case, can become a forum in which gruesome and outlandish tales are told about the exclusive guilt of the “other” defendant. In this case, these claims were not all substantiated by the evidence at trial. Counsel can make and oppose motions that are favorable to their defendant, without objection by the government. Cross-examination of the government’s witnesses becomes an opportunity to emphasize the exclusive guilt of the other defendant or to help rehabilitate a witness that has been impeached. Cross-examination of the defendant’s witnesses provides further opportunities for impeachment and the ability to undermine the defendant’s case. The presentation of the codefendant’s case becomes a separate forum in which the defendant is accused and tried.
Closing arguments allow a final opening for codefendant’s counsel to portray the other defendant as the sole perpetrator of the crime. Joinder can provide the individual defendants with perverse incentives. Defendants do not simply want to demonstrate their own innocence; they want to do everything possible to convict their codefendants. These incentives may influence the decision whether or not to take the stand, as well as the truth and content of the testimony. The joint trial of defendants advocating mutually exclusive defenses produces fringe benefits for the prosecution. Joinder in these cases can make a complex case seem simple to the jury: convict them both. The government’s case becomes the only unified and consistent presentation. It presents the jury with a way to resolve the logical contradiction inherent in the defendants’ positions. While the defendants’ claims contradict each other, each claim individually acts to reinforce the government’s case. The government is further benefited by the additive and profound effects of repetition. Each important point the government makes about a given defendant is echoed and reinforced by the codefendant’s counsel. Joinder of defendants who assert mutually exclusive defenses has a final subtle effect. All evidence having the effect of exonerating one defendant implicitly indicts the other. The defendant must not only contend with the effects of the government’s case against him, but he must also confront the negative effects of the codefendant’s case.
See also United States v. Green, 324 F.Supp 311, 324 (D.Mass 2004) (severance was required as the defense contended that ballistics evidence showed the existence of only one shooter and thus each defendant would accuse the other of being the shooter in a “zero sum” game); United States v. Troiano, 426 F.Supp.2d 1129, 1135 (D.Hawaii 2006) (severance was required where defendant accused co-defendant of “bullying” or “manipulating” him into involvement in the offense); United States v. Odom, 888 F.2d 1014, 1018 (4th Dist. 1989) (severance was correctly ordered where co-defendant “attorney’s tactic was to bring out any information that was detrimental and prejudicial to [defendant] without regard to whether such information was relevant to the charges contained in the indictment.”).
Another basis for severance occurs when evidence against one defendant is not applicable to and prejudicial to the other co-defendant. Dix v. State, 196 So.3d 547, 555 (Fla. 4th DCA 2016) (“A motion for severance should be granted if there is evidence directed at a co-defendant which is prejudicial to [the] defendant.”); Hernandez v. State, 570 So.2d 404, 405 (Fla. 2d DCA 1990) (citing Cason v. State, 211 So.2d 604 (Fla. 2d DCA 1968)). Miller v. State, 756 So.2d 1072, 1072 (Fla. 4th DCA 2000) (“A motion to sever should be granted when the evidence sought to be admitted applies only to a co-defendant, but which may improperly influence the jury as to the charge against the other defendant.”)(citing Viniegra v. State, 604 So.2d 863, 864 (Fla. 3d DCA 1992)); see also Suarez v. State, 115 So. 519 523 (Fla. 1928).
A third basis for severance occurs when there is a disparity in the amount and quality of the evidence between the defendants. “In determining whether severance is appropriate, a district judge should consider, among other things, the number of counts and defendants; disparities in the quantum of proof offered against the various defendant; possible prejudice from the type of evidence (e.g. prior convictions) to be admitted against some of the defendants; and the apparent relative culpability of the defendants.” United States v. Abrams, 539 F.Supp. 378, 381 (S.D.N.Y. 1982) (internal citations omitted); see also United States v. Mason, 951 F.3d 567, 576 (D.C.Cir. 2020).
A fourth basis for severance occurs when a co-defendant testifies and substantially increases the scope and nature evidence against the co-defendant. Heinly v. State, 201 So.3d 769 (Fla. 4th DCA 2016); see also United States v. Crawford, 581 F.2d 489, 492 (5th Dist. 1978) (“Each was the government’s best witness against the other. Each defendant had to confront not only hostile witnesses presented by the government, but also hostile witnesses presented by his co-defendant. Witnesses against each defendant were thus examined by one adversary and cross examined by another adversary. A fair trial was impossible under these inherently prejudicial conditions.”).
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