Severance of Charges (Part 1)

On April 19, 2022, a three-judge appellate panel decided the Camden County case of State v. Karl Smith. The principal issue under N.J.S.A. 2C:1-8 was whether it was reversible error for the trial court to refuse to sever child sex abuse charges involving two victims.

Presiding Judge Messano wrote for the panel in relevant part: It is obvious to us that evidence regarding Karen’s allegations would not have been properly admitted at a separate trial of the crimes alleged by Sara because they were not relevant to a material disputed fact under Cofield‘s first prong. Defendant never said he touched Sara in her vaginal area, much less that it was by accident, mistake or inadvertence.

Similarly, the evidence adduced at trial regarding Sara’s allegations would not have been properly admitted at a separate trial of the crimes alleged by Karen. The prosecutor contended there were common threads between the two sets of allegations, namely that defendant was a “father figure” to Sara and Karen and the molestations occurred in his home during the same timeframe. Yet, there was no “clear and strong” logical connection between Sara’s allegation that defendant repeatedly sexually touched her vaginal area before he went to work at 4 a.m., and Karen’s explicit claims of sexual penetration during the same timeframe and sometimes in the same house.

Admission of other crimes evidence to bolster Karen’s or Sara’s credibility was inappropriate. Simply put, the judge denied defendant’s severance motion without conducting the “kind of carefully-focused analysis required by N.J.R.E. 404(b).” The judge should have granted defendant’s motion for severance and tried the two sets of allegations separately.

Evidence Rule 404(b) is a favorite tool of prosecutors seeking to prejudice the jury against the defendant. It is standard for courts to give jurors an instruction that they are only supposed to consider such evidence for a limited purpose. Examples include, to demonstrate: motive, modus operandi, and absence of mistake. The reality is that even the most well-intentioned juror is at least subconsciously and unduly prejudiced by such evidence.