(Applicable to District Court and Superior Court)

(a) Joinder of Offenses.

(1) Related Offenses. Two of more offenses are related offenses if they are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan.

(2) Joinder of Related Offenses in Complaint or Indictment. If two or more related offenses are of the same or similar character, they may be charged in the same indictment or complaint, with each offense stated in a separate count.

(3) Joinder of Related Offenses for Trial. If a defendant is charged with two or more related offenses, either party may move for joinder of such charges. The trial judge shall join the charges for trial unless he determines that joinder is not in the best interests of justice.

(4) Joinder of Unrelated Offenses. Upon the written motion of a defendant, or with his written consent, the trial judge may join for trial two or more charges of unrelated offenses upon a showing that failure to try the charges together would constitute harassment or unduly consume the time or resources of the parties. The trial judge shall join the charges for trial unless he determines that joinder is not in the best interests of justice.

(b) Joinder of Defendants. Two or more defendants may be joined in the same indictment or complaint if the charges against them arise out of the same criminal conduct or episode or out of a course of criminal conduct or series of criminal episodes so connected as to constitute parts of a single scheme, plan, conspiracy or joint enterprise. The defendants may be charged separately or together in one or more counts; all of the defendants need not be charged in each count.

(c) Consolidation of Offenses or Defendants on Motion of Court. The trial judge may order two or more indictments or complaints to be tried together if the offenses and the defendants, if more than one, could have been joined in a single indictment or complaint. The procedure shall be the same as if the prosecution were under a single indictment or complaint.

(d) Relief From Prejudicial Joinder.

(1) In General. If it appears that a joinder of offenses or of defendants is not in the best interests of justice, the judge may upon his own motion or the motion of either party order an election of separate trials of counts, grant a severance of defendants, or provide whatever other relief justice may require.

(2) Motion by the Defendant. A motion of the defendant for relief from prejudicial joinder shall be in writing and made before trial and shall be supported by an affidavit setting forth the grounds upon which any alleged prejudice rests, 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.

(e) Conspiracy. An indictment or complaint for conspiracy to commit a substantive offense shall not be tried simultaneously with an indictment or complaint for the commission of the substantive offense, unless the defendant moves for joinder of such charges pursuant to subdivision (a) of this rule.

Reporter's Notes

The substance of Rule 9 is taken from several sources. These are Fed.R.Crim.P. 8 and 13, the ABA Standards Relating to Joinder and Severance (Approved Draft, 1968), Uniform Rules of Criminal Procedure (U.L.A.) Rules 471-73 (1974), and ALI Model Penal Code §§ 1.07-1.09 (1962). See Commonwealth v. Gallarelli, 372 Mass. 573 (1977) (Kaplan, J., concurring). The language is drawn largely from the Uniform Rules.

Subdivision (a). Although subdivisions (a) and (b) of the rule are consistent with their statutory precedent, former G.L. c. 277, § 46 (St.1861, c. 181), the rule is more explicit in defining what charges may be joined in a single indictment.

Related offenses are defined in (a)(1) as those which 1) are based on the same criminal conduct or episode, or 2) arise out of a course of criminal conduct or a series of criminal episodes connected together or constituting parts of a single scheme or plan. "Conduct" means an act or omission to act; "episode" means an occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger or more comprehensive series. ABA Standards Relating to Joinder and Severance § 1.3(a), comment at 20-21 (Approved Draft, 1968).

Under Federal Rule 8, offenses may be joined if they 1) are based on the same transaction, 2) are parts of a common scheme or plan, or 3) are of the same or similar character. Offenses that are based on the same underlying facts or are each part of a larger plan are related in such a way as to insure an overlap in the evidence to be presented upon each offense.

Rule 9 takes the position that the goal of judicial economy will rarely be paramount to affording the defendant a trial as free from prejudice as possible; therefore, joinder of unrelated offenses is prohibited except at the instance of the defendant or with his written consent.

Rule 9 permits joint trial of offenses committed in furtherance of a common scheme or plan, but factually independent, and thus conforms to case law under former G.L. c. 277, § 46.

General Laws c. 277, § 46, which governed joinder of offenses, stated:

Two or more counts describing different crimes depending upon the same facts or transactions may be set forth in the same indictment if it contains an averment that the different counts therein are different descriptions of the same acts.

If read narrowly the statute would prohibit joint trial of offenses which were part of a joint scheme or plan, but not dependent upon the same underlying facts. The statute has, however, been interpreted more broadly, allowing joint trial of offenses related in ways other than as literally permitted by § 46. See e.g., Harding v. Commonwealth, 283 Mass. 369 (1933).

Subdivision (a)(3) allows the parties to request that the charges pending against the defendant be joined for trial. By granting the court discretionary power to deny the defendant's motion to join the charges, the rule protects the prosecution from being effectively "forced" to try charges on which it has not yet organized a sufficient case to warrant proceeding. See Mass.R.Crim.P. 37(a), (b)(2), which require the approval of the prosecutor for charges to be transferred for plea, sentence, or trial.

Subdivision (b). This subdivision is in form virtually identical to the corresponding federal rule provision, but substitutes "conduct" and "criminal episode" for the terms used in the federal rule, "act" and "transaction."

Although there is no statute in the Commonwealth analogous to the joinder of defendants provision contained in subdivision (b), it seems to be in harmony with former Massachusetts practice. Prior to the promulgation of these rules, such joinder was permitted in two instances: when the defendants were charged with joint participation in a single series of events based on identical facts, Commonwealth v. Nicholson, 4 Mass. App. Ct. 87 (1976); Englehart v. Commonwealth, 353 Mass. 561 (1968), and when there existed sufficient evidence to indicate that the defendant and co-defendant were engaged in a common enterprise, and the issue of fact to be tried against each defendant was similar, as in Commonwealth v. Smith, 353 Mass. 442 (1968).

Subdivision (c). This subdivision allows otherwise permissive joinder of offenses or defendants to be accomplished by the trial court on its own motion. This provision is included in order to achieve the principle goal of the rule, judicial economy, while protecting the defendant's right to a reasonably prejudice-free trial. Although it is contemplated that joinder will be effected by the prosecution at the indictment or complaint stage in all possible cases, should the prosecution elect to proceed in a manner contrary to the goal of judicial economy this subsection empowers the court to rectify the situation on its own motion without having to depend on a motion by the defendant. Compare Commonwealth v. Benjamin, 358 Mass. 672, 678 (1971) (order for amendment of indictments).

Subdivision (d). Subdivision (d)(1) is essentially drawn from Fed.R.Crim.P. 14 and is consonant with prior Massachusetts practice. Subdivision (d)(2) is taken from ABA Standards Relating to Joinder & Severance § 2.1(a) (Approved Draft, 1968).

As a general proposition, the decision whether to allow a motion to sever two or more indictments which have been joined for purposes of trial rests in the sound discretion of the trial judge.

Commonwealth v. Jervis, 368 Mass. 638 , 645 (1975). Accord, United States v. Luna, 585 F.2d 1 , 4-5 (1st Cir.1978); Commonwealth v. Cruz, 373 Mass. 676 (1977); Commonwealth v. Drew, 4 Mass. App. Ct. 30 (1976).

Where "substantially the same evidence, or evidence connected with a single line of conduct, " Commonwealth v. Rosenthal, 211 Mass. 50 , 54 (1912), substantiates two or more indictments for "offenses [which] are kindred and liable to punishment of the same general character, " Commonwealth v. Veal, 362 Mass. 877 (1972) (Rescript), there is no abuse of discretion in denying the defendant's motion for severance. Commonwealth v. Drew , supra, at 53. The legal standards which must guide the exercise of the court's discretion in determining a motion to sever have been articulated as follows:

No sound reason can be given why several indictments charging different crimes arising out of a single chain of circumstances should not be tried together. Where several offenses might have been joined in one indictment, and would be proved by substantially the same evidence, or evidence connected with a single line of conduct, and grow out of what is essentially one transaction, and where it does not appear that any real right of the defendant has been jeopardized, it would be a refinement not demanded by the law or by justice to require in all instances a separate trial, simply because separate indictments have been found for each offense.

Commonwealth v. Cruz, 373 Mass. 676 (1977). Accord Commonwealth v. Blow, 362 Mass. 196 , 200 (1972); Commonwealth v. Rosenthal, supra.

The assertion of prejudicial joinder does not challenge the propriety of the initial order for consolidation. Rather, the prejudice is found in facts peculiar to a defendant's case. Defendants may move for severance of their cases, or of counts therein, on the grounds of misjoinder and prejudicial joinder.

Misjoinder. It is important to know what the minimal grounds for joinder of defendants or offenses are when considering a claim of misjoinder because such a claim is an assertion that the minimal requirements have not been satisfied. Thus, when a motion for severance of defendants or for separate trials of more than one count is based on the ground that the consolidated offenses should not have been joined, i.e., that there has been a misjoinder, the standards upon which the motion is to be judged are stated in subdivisions (a)(1)-(2) of this rule.

A misjoinder can result in two ways. First, the offenses joined might have been improperly joined in one indictment and, secondly, two indictments may have been improperly consolidated for trial. In both cases, however, the same standard is to be used to determine the propriety of the joinder.

Two other aspects of this subdivision deserve mention. First, subdivision (d)(1) permits a court to grant a severance upon its own motion. Although this authorizes a court to review its initial order of consolidation of the charges for trial to see if the minimum grounds are satisfied, its primary significance is that it permits the court to exercise its discretion in deciding initially whether to proceed by joint or separate trials even though one of the minimum grounds for joinder is satisfied. In effect, this provision permits the trial judge to consider the prejudice to the defendant in his initial decision as well as at later stages of the trial.

Secondly, it is recommended in the ABA Standards Relating to Joinder and Severance § 2.1(c)-(d), comment at 28 (Approved Draft, 1968), that a motion by the prosecution for severance, unless consented to by the defendant, be required to be made prior to trial to avoid giving the defendant upon retrial the defense of double jeopardy. As is stated therein, however, this proposition does not derive from any judicial holdings to that effect. While this subdivision contemplates that prosecution motions for severance shall be limited to a pretrial posture, it is likely that if a severance upon the prosecution's motion after the commencement of trial is a "manifest necessity" such that the "ends of public justice would otherwise be defeated, " United States v. Perez, 22 U.S. (9 Wheat.) 579 , 580 (1824), courts of this Commonwealth would hold that the severance was not a bar to future prosecution on the severed charges, even if the defendant did not consent. Compare Price v. Slayton, 347 F .Supp. 1269 (W.D.Va.1972).

Prejudicial Joinder. Satisfying the minimum joinder standards is only one consideration affecting a court's decision on consolidation. The court is lodged with the discretion to determine in each case whether justice would be served better by joint or separate trials. The countervailing considerations affecting this decision are the defendant's interests and the interests of the court and prosecution in having the adjudication as short and as inexpensive as possible. The merits of each side's claims will differ from case to case. Only the trial judge is in a position to balance effectively the competing interests, and, in most cases, his discretion is very broad.

In its initial decision upon the issue of consolidating charges for a single trial, in addition to determining whether minimum grounds for joinder exist, the court should consider whether the defendant would be adversely affected by joinder. If he would and if this prejudice overrides the interests of the prosecutor, the public, and the courts in an expeditious trial, joinder should not be ordered.

At any stage after joinder has been ordered, the court on motion of the defendant or on its own motion may wish to reconsider whether the interests of justice are better served by separate trials. At such time, the court should again weigh the competing interests as well as considering how far the prosecution of the charges has proceeded and whether a severance would involve an undue relitigation of issues already presented to the court. In both its initial decision and at any later reconsideration of prejudice to the defendant, the court is determining whether them exists a prejudicial joinder of charges.

The Supreme Judicial Court summarized the duty of the trial court in protecting a defendant's rights as follows:

It is the heavy obligation of the trial court sedulously to take cam that the defendant is not confounded in his defense, that the attention of the jury is not distracted and that in no aspect are the substantial rights of the defendant adversely affected by requiring him to proceed to trial on separate complaints for different offenses or on separate counts for different offenses in one complaint.

Commonwealth v. Slavski, 245 Mass. 405 , 412-13 (1923). It is made clear by the court that the trial court's discretion is circumscribed by its duty to guarantee a fair trial.

A court may find prejudice on its own motion or the motion of either party. However, where a defendant initiates the motion for relief from prejudice, he has a strong burden of persuasion. Sagansky v. United States, 358 F.2d 195 (1st Cir.1966), cert. denied, 885 U.S. 816. This heavy burden is placed upon the defendant because the trial judge has already determined once that the defendant was not likely to be prejudiced by consolidated trials.

A defendant first must make his motion at the appropriate time. If a motion is filed before the prejudicial grounds have materialized, the motion should be dismissed. The grounds of prejudice may become known to a defendant at any stage of the pretrial of trial proceedings. He has the duty to inform the court of these grounds whenever he first learns of them. If a motion is made at trial based upon grounds known prior to the commencement of the trial, the defendant has waived his opportunity to object. Subdivision (d)(2).

Secondly, a defendant has the related burden of showing a specific ground of prejudice. It is not enough for a defendant merely to claim that his chances of acquittal are reduced in a joint trial, or that a joint trial presents him with a number of potential dangers. The defendant must point to definite prejudice that presently exists.

One other class of cases deserves mention. In these, a separate trial must be granted because of an established principle of law; the decision is non-discretionary. In cases not of this class, the decision regarding a joint trial rests upon the peculiar arrangement of the facts, whereas here the facts are less significant. This class is composed mostly of claims that a defendant's constitutional rights will be infringed by a consolidated trial. Bruton v. United States, 391 U.S. 123 (1968), establishes the most significant principle in this area. Basing its decision on a defendant's sixth amendment right to confront adverse witnesses, the Supreme Court held that a severance was required where a co-defendant's confession implicating the defendant is to be offered at trial. It had always been true that such a confession was inadmissible against the nonconfessor, but prior to this decision a limiting instruction to the jury was deemed sufficient to protect the tights of the non-confessing defendant. The distinction between this decision and others where continued reliance on jury instructions is found is that a defendants constitutional right is in issue here and less flexibility in balancing competing interests is tolerated.

The scope of the Bruton decision has been delimited since the time of its issuance, and a severance is not always required where one defendant's confession mentions other participants in the criminal acts. The following are examples where a severance is not required:

  1. Commonwealth v. Scott, 355 Mass. 471 (1969), holds that a confession implicating the defendant may be admitted in a joint trial when the defendant does not contest his participation in the crime. This occurs when a defendant asserts a special defense, e.g., insanity.
  2. When the statement refers to other participants without identifying them or when the statement can be cured of any constitutional defect by excision, it may be admitted at a joint trial. See Commonwealth v. French, 357 Mass. 356 , 46 A.L.R.3d 1106 (1970); ABA Standards, supra, § 2.3(a). But sufficient identification may be found even when names are not used. Commonwealth v. Sarro, 356 Mass. 100 (1969).
  3. The confessing co-defendant can testify at trial, thereby giving the implicated defendant the opportunity to cross-examine the witness on any statements made by him that were admitted at trial. Santoro v. United States, 402 F.2d 920 (9th Cir.1968). See Commonwealth v. Hicks, 377 Mass. 1 (1979); Commonwealth v. Murphy, 6 Mass. App. Ct. 335 (1978) 533.

Another example of a severance being required because of the threat of impairing a defendant's constitutional rights is offered by DeLuna v. United States, 308 F.2d 140 , 1 A.L.R.3d 969 (5th Cir.1962). Only one defendant took the stand, and his counsel commented upon the failure of his client's co-defendant to testify in an attempt to show that only an innocent defendant has the courage to deny his guilt at trial. The Court of Appeals held it error to permit one defendant to comment adversely upon his co-defendant's exercise of his fifth amendment privilege not to testify.

In sum, prejudice to a defendant is to be found in the facts of his case. Most claims of prejudice are to be decided by the trial court in the exercise of its discretion, and the majority of these claims are rejected. A severance is required in some cases because certain facts relating to either trial strategy or the nature of the offenses establish as a matter of law the existence of prejudice. In other cases, a severance is mandated by constitutional considerations.

Subdivision (e). This subdivision prohibits trial on an indictment or complaint for conspiracy to commit a substantive offense simultaneously with the trial on the substantive offense, except upon motion of the defendant. This provision is retained from former G.L. c. 278, § 2A (St.1968, c. 721, § 2) pursuant to which the prohibition against joint trials of the conspiracy and substantive charges was absolute. See Commonwealth v. Gallarelli, 372 Mass. 573 (1977). Under this rule, however, the defendant may move for joinder of such charges.

The Supreme Judicial Court has noted that "[t]he legislative history affords no indication of why § 2A, which may add new complications to enforcement of the criminal law, was adopted at all .... " Commonwealth v. French, 357 Mass. 356 , 375 n. 20, 46 A.L.R.3d 1106 (1970). Accord Commonwealth v. Gallarelli, 372 Mass. 573 (1977) (Kaplan, J., concurring). The intent of the rule is to guard against the possibility that a jury, if permitted to hear evidence on both the conspiracy and the substantive offense, might convict on the charge of the substantive offenses of a matter of course after convicting on the conspiracy charge, in spite of the court's instruction as to the distinct evidence required to establish a conspiracy. This is because of the much broader scope of admissibility of evidence permitted to prove the conspiracy charge.

The defendant should be allowed to proceed by a joint trial, however, so long as it is determined by the judge to be in the best interests of justice. This practice accords with that under Fed.R.Crim.P. 8(b), pursuant to which conspiracy and substantive charges may be joined. E.g., United States v. Graham, 548 F.2d 1302 , 1310 (8th Cir.1977); United States v. Beasley, 519 F.2d 233 , 238 (5th Cir.1975); United States v. Banks, 465 F.2d 1235 , 1242-48 (5th Cir.), cert. denied, 401 U.S. 924 (1972); Gordon v. United States, 438 F.2d 858 , 878 (5th Cir.), cert. denied sub nom., Crandall v. United States, 404 U.S. 828 (1971). See ABA Standards Relating to Joinder and Severance § 1.2(b), comment at 15 (Approved Draft, 1968).