545.880. Joint trials, when — separate trials for joint defendants, when — probability of prejudice exists, when. — 1. Notwithstanding supreme court rule 24.06, whenever two or more defendants are jointly charged in an indictment or information, the court shall order both or all defendants to be tried together. In the event two or more defendants are charged in separate indictments or informations with offenses, where both the defendants and the offenses could have been joined in the same information or indictment, upon motion of one or more defendants or on motion of the state, the court may order the indictments or informations or both to be tried together.
2. If, upon written motion of the defendant, the court finds that the probability for prejudice exists in a joint trial, the court shall order the severance of defendants for trial. The court shall find that the probability for prejudice exists if:
(1) At least one but not all of the defendants jointly charged is, if convicted, subject to jury assessment of punishment; the defendant or defendants subject to jury assessment of punishment shall have the burden of showing the probability of prejudice if tried jointly;
(2) There is, or may reasonably be expected to be, material and substantial evidence admissible against less than all of the joint defendants;
(3) There exists an out of court statement of a codefendant which makes reference to another of the joint defendants, but is not admissible against that defendant, and if the statement cannot be properly limited so as to eliminate reference to the complaining defendant;
(4) Severance of the joint defendants is necessary to achieve a fair determination of guilt or innocence of any defendant.
Notes of Decisions
Cited in
27
cases (
3 in the last 5 years), 1954–2025 · leading case:
State v. Badakhsan, 721 S.W.2d 18 (Mo. Ct. App. 1986).
State v. Badakhsan, 721 S.W.2d 18 (Mo. Ct. App. 1986).
· cites it 6× “Joinder is permitted under § 545.880 RSMo.Cum.Supp.1984. In the present case the trial began against defendant and two co-defendants, one of whom became ill on the second day of trial and was severed upon motion.”
State v. Hill, 808 S.W.2d 882 (Mo. Ct. App. 1991).
· cites it 3× “See also Section 545.880, RSMo (1986). James argues that the trial court should have granted his motion to sever based on Rule 24.”
State v. Denzmore, 436 S.W.3d 635 (Mo. Ct. App. 2014).
· cites it 2× “06 and Section 545.880, which govern the propriety and procedure of severing joint trials, severance is required, upon the defendant’s written motion, if the trial court finds the probability for prejudice exists or a separate trial is necessary to achieve a fair determination…”
Dawson v. State, 315 S.W.3d 726 (Mo. Ct. App. 2010).
· cites it 2× “06 and section 545.880, a separate trial is required when the defendant files a written motion requesting a separate trial and the trial court: (1) finds a probability of prejudice exists if the defendants are tried jointly, or (2) the defendant is subject to assessment of…”
State v. Kidd, 990 S.W.2d 175 (Mo. Ct. App. 1999).
· cites it 2× “06 and § 545.880, the defendant bears the burden of affirmatively showing that the joint trial prejudiced his right to a fair trial.”
State v. Castino, 264 S.W.2d 372 (Mo. 1954).
· cites it 2× “§ 545.880 RSMo 1949,. V.AM.S. He should have been given a trial conducted as though he had been charged separately.”
State v. White, 952 S.W.2d 802 (Mo. Ct. App. 1997).
· cites it 3× “Admission of the disposition of a co-defendant’s case, whether by conviction, plea or acquittal, has also been held to dissipate the value of the defendant’s right to a separate trial secured by section 545.880 RSMo 1994 and Rule 24.06.”
State v. Walker, 639 S.W.2d 854 (Mo. Ct. App. 1982).
· cites it 2× “When two or more defendants are jointly charged with the commission of the criminal offense of rape or forcible rape, sodomy or forcible sodomy, or an attempt to commit any of the aforesaid, the court shall order both or all defendants to be tried together, notwithstanding the…”
State v. Browner, 587 S.W.2d 948 (Mo. Ct. App. 1979).
“07(a) and § 545.880 wherein it is provided that when two or more defendants are jointly charged with the commission of a felony, any one defendant, before announcing ready for trial at any term of court, shall, upon request, be tried separately.”
State v. Ward, 782 S.W.2d 725 (Mo. Ct. App. 1989).
· cites it 2× “On appeal, defendant contends the admission of this evidence violated his right to severance guaranteed by § 545.880 RSMo 1986 and Rule 24.06, and, in turn, violated his right to due process and right to a fair trial.”
State v. Aubuchon, 381 S.W.2d 807 (Mo. 1964).
“170, is that every defendant who joins in the commission of a crime is liable, on his own, as a principal; but he is also entitled to be tried on his own without having his guilt prejudged by what has happened to his co-defendant.”
State v. Pizzella, 723 S.W.2d 384 (Mo. 1987).
“1972) (decision whether to grant separate trials to defendants separately charged is committed to discretion of trial court). Appellant next asserts § 545.880.”
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