All right, Lawyer Talk podcast. We are off the record and on the air right now, and we are here to talk about an issue that is. I don't want to say it's emerging because it's been around forever. And I get questions all the time, not only here, but in my legal practice. And it comes up a lot as I defend folks who are charged with crimes. And that question is whether can. Whether and when the state can link up, consolidate separate cases into one trial.

From like a law. Non law perspective, it kind of makes sense. From a business perspective, why don't we just join as many cases as possible to save the court some time and money? That's how I always viewed it.

All right, so let's go before law school, saving time and money. So Troy's wants to save some time and money up there, but now Troy's convict. Now we're going to accuse Troy of a crime. Troy, you know what? You just. You've been accused of a date rape.

Okay?

You got drunk on campus the other night and you thought everything was fine, but it wasn't. Now you're charged with a date rape or an acquaintance rape scenario. Look, I'm not making light of that. If it's happened to you, I'm sorry, but this is a scenario that occurs, and then it turns out two years ago or a couple of years ago, lo and behold, somebody else is now coming forward and accusing you of a date rape scenario. So now you got two.

That's great.

So now Troy's a no good, rotten rapist. Should we try them together?

Well, now that I'm in the hot seat, obviously not. I don't want them to try together.

Well, why not, though? So make the argument.

So the argument is, you know, if this one girl comes forward, says this and this other one comes forward, the jury's gonna sit there and be like, well, even if she's lying, she's probably not lying. If he did it once, he probably did it twice.

Convict them of both.

Yeah, kind of like the Bill Cosby approach.

But I'm the prosecutor. I'm going to say, look, judge, we don't want to waste our time. It's stupid to have two trials. These are almost the identical offenses. And under the criminal rules, I think criminal rule eight, we should be able to. In Ohio, we should be able to link these things up. It's just efficient justice to do them all at once. And we're going to act like it's no big deal that they're tried together because the jury's Going to be able to separate these things out and make independent findings on both and say, look, just because one, he did it once, I mean, he did it twice. Juries are smart. They'll be able to. Yeah, they'll be able to figure that all out.

There's not going to be any spillover whatsoever.

Yeah, the spillover evidence.

Yeah.

So look here. And here's the framework for this. And this is. This is actually an emergent issue in Ohio in the sense that the Ohio Supreme Court is considering this in a case called State versus Reed. Well, how do I know about. Well, I argued the case in the high supreme Court, but it's. It works this way. If the state, the government, the prosecutor is allowed, the law lets them. The criminal rules in Ohio let the state join two cases together if they're a same or similar nature, and it's efficient justice. I'm summarizing the rules, and then it's on the defense, if that happens in a single indictment. So now you're charged with two different things, two years apart, two different alleged victims, similar conduct, even say it's the same offenses, both rapes. Now, Troy has to argue prejudice.

Okay.

Troy has to argue under Criminal Rule 14 that this is prejudicial. So it starts with a consolidation. Then the defense has to say, look, yeah, I get it. Even if you could do consolidate them under criminal rule eight, it's really prejudicial here. I mean, this. Come on, guys. We all know what's going on. Just because he did it once, he must have done it twice, the jury's going to reach the natural yet impermissible conclusion that Troy's just got a character portrayed and a tendency to go rape girls.

Yeah.

Now everybody out there is thinking, well, of course he does. And why wouldn't that be relevant? Well, it sort of is. Right? This is like a whole evidence for your analysis. You get to the point where all evidence that tends to prove or disprove a relevant fact, something that's important to the case, a salient fact in the case is relevant evidence. So that seems like it'd be relevant evidence. But the rules of evidence, the common law before that, and everybody who's tried cases for the last several hundred years knows that you can't offer this kind of evidence. You can't say somebody has a propensity to be a criminal, and therefore he did it this time on this occasion, because he did it another time on another occasion. It's not fair because there's the danger of the jury considering what you call Spillover evidence, which means they're going to take the evidence of one if there's any doubt about the other. That'll fill the gap. Done. Guilty on both.

If we allowed it, every single criminal trial would just be prosecutors bringing in a bunch of people who just testifying on. Here's what he did like five years ago. It's terrible.

Yeah, Troy's a no good rotten sob. So he did it. And then it could even expand it beyond that. It's like you're not just a no good riding SOB because you did this before. Look what else he did. I mean, he's got a burglary on his rap sheet. He's got. I mean it's like all sorts of things. So generally speaking, the rules of evidence don't allow this. But the defense has to establish back to the point prejudice. We have to show that it's not fair. You can't try these cases together. Judge. It's not fair. It's going to be really prejudicial for Troy, who enjoys his right to due process of law. It's going to be really prejudicial for him to have to sit in trial and defend both these things at once. Because look, if they can, if it's sketchy on one, they're going to say guilty because it's not so sketchy on the other or vice versa. Or maybe it's sketchy on both. And they're like, look, some of the parts here is bigger than the whole. We're going to convict him of everything because. Come on, twice. Yeah, right. Now the state. But that's the only part. It doesn't stop there. So now they've joined him. We've said it's prejudicial and I think the prejudice is obvious. And now what?

Now we're going to have a severance hearing.

Now we're going to have a severance hearing. What does the state have to show in order to go back? So they joined. Now it's prejudicial. They can overcome that prejudice in one of two ways.

There has to be some type of exception for it.

And there's two.

There's. The first one would be under 404B. One of the like laid out reasons. Correct.

See Troy's, Troy's tapping his law school evidence brain here. So evidence rule 404. So we'll talk about in Ohio. There's evidence. Federal courts, most states have similar. It says that you can't. Evidence Rule 404A generally says you can't offer propensity evidence. Just because Troy's a no good SOB doesn't mean he was a no good SOB on this time. Or just because Troy is once a thief, always a thief, you can't do it. Then you get to these other things called specific instances of conduct. Prior bad acts, other acts. It doesn't have to be bad. They can just be other acts. But everybody says prior bad acts. 404 B says you can't use prior bad acts either unless those acts are relevant for some other reason. All right, here's where everybody screws it up. And again, the Ohio Supreme Court has come Forward in about 20, 20, about five years ago, six years ago. And they said, look, the other acts are sometimes relevant, but they got to be relevant to the case. In other words, in law school, they teach you all sorts of.

They teach us like eight. There's like eight different ones. I'm pretty sure I don't know them exactly. But like, one of them's intent, One of them's like, scheme, plan. I think motive. But there's like. But there's more. I don't know them all by heart. I'll be ready for the bar.

Okay, so let's take on some of these things. This is sort of fun. Let's take them on. Say they want the classic law school example of other acts. Evidence comes up when we don't know who Troy is. In other words, we've got ourselves Jack the Ripper out there. And Jack the Ripper in London, famously would go gut prostitutes on the streets of foggy streets of London at night, and it scared the crap out of everybody. And he would gut them and he would disembowel them and do all these things. And we don't know who that is. And let's just add some facts to Jack the Ripper. Jack the Ripper or another guy or say, a suspect in the Jack the Ripper killings. Actually, it is known that this other guy did something almost identical to what Jack the Ripper did two years later or the unknown Jack the Ripper two years later. But we know somebody with a similar mo Modus operandi, some guy did the same thing, and we know it's him. Well, now that evidence is relevant. Not to prove that he did it twice, but to say this is his signature, this is the perfect egological example is the Kissing Bandit. The Kissing Bandit. So the guy goes up, steals the girl's purse, gives him a little peck on the cheek and runs away. He does it over and over and over again. So, you know, there's one guy who did this time and time again. And now we have another case that has this similar fact pattern. Well, we're not showing it to say that Troy's a no good, rotten kissing bandit, but we're saying, look, Troy's admitted to being the kissing bandit in all these other cases or there's evidence that he did it in all these other cases. And now there's this unknown that seems to fit the very unique factual circumstances under which Troy steals purses. Come on.

Yeah.

You're not offering to show that you're a no good person, but to show it fits. This is how Troy does it. Therefore, it is relevant to show that his identity in the new kissing bandit case is it's Troy. There are others. If I say you talked about mistake or lack of mistake.

Yeah.

So if Troy's defense is, I made a mistake, yet he's got other similar conduct where he did the same thing, where he should have learned his lesson from the mistake, then the other conduct comes. It's relevant now not to prove that you did it once, you did it twice, but because over here you would have learned that about all about the mistake that you made. And therefore it's less likely that you made that mistake here to defend the case. Those are instances of other acts where they come in. So let's go back to the. We're getting a little bit of far field.

We don't have to do all of the four four Bs, but they get the gist. I feel like.

Well, I think one more. So let's say Troy is going to go commit a. You're a safe cracker. So he's one of these guys on TV that they hire.

Ocean's 11, 12 and 13 oceans 11, 12, 13.

He's a safe cracker and he's got. I mean, he is the best safe cracker in the world, by golly. You just, you know how to get into even the most secure of safes, but you need certain equipment to do it. You got to have like a little stethoscope like that. Or probably something more modern now, but in the movies, like the old movies, it was like a little stethoscope. Guys are sitting there doing this, but you don't have one. You don't have any money. Well, now what? Well, I need a stethoscope, guys, if I'm going to join the crew out here in Vegas, I got to have a stethoscope in order to crack the safe. Or I need this fancy drill that with suction cups. Attaches to it, and I can drill it.

Well, I'm gonna go pull a little B and E, get some money so I can buy this equipment.

There you go. So B and E being breaking and entering. So Troy breaks into grandma's house, steals her purse, takes all the money from it, and then goes and buys the equipment. Or more likely, Troy breaks into Ace Hardware after hours and steals the drill or the drill bits. That's another act. And I couldn't offer as a prosecutor that evidence to show. Look, Troy's. He's just a bad dude, man. He breaks into places and steals stuff. But I could, because it's part of the plan. It's part of the overreaching plan. You stole a drill and drill bit in order to commit this crime. It's relevant. It's all connected. But it wouldn't be the same if they weren't connected. Just if you stole something before from Walmart, you really wanted one of those Walmart frozen pizzas.

Yeah.

Or not the ones they make. The cold ones they make. So you go in and you take. Or maybe a roller dog. Yeah, take a roller from Speedway. So Troy rips off a roller dog because he's hungry. Well, you can't. That evidence wouldn't be relevant because it has nothing to do with committing the safe cracker. Getting the point? I should teach evidence in law school.

Should. Should.

All right, so the prosecutor joins the cases under criminal rule 8. Now we get to criminal rule 14. I. I said BS. This is the most prejudicial crap you can ever come with. And now the prosecutor has to show one of two things. One being that they could use the evidence anyway, so prejudice doesn't matter. So in other words, what they're really saying is under 404B, if Troy did something before, and that's one of the joint offenses, and that evidence on that case, I could use it anyway as the prosecutor because it comes in under 404B. He's just a safe cracker and all I'm, you know, he's charged with the burglary here, and he's charged with the safe cracking here. The evidence of the burglary comes in because it shows that Troy was ripping off the Ace hardware in order to get a drill bit and a drill so he could drill into the safe. Or he stole his doctor's stethoscope surreptitiously while he was getting his self checked anyway. So it comes in under 404B. Therefore we don't have a problem. The prejudice is irrelevant because it exists no matter what. Fair enough.

Yep.

But let's say. No, it's not one of those. It's not one of these listed exceptions under 404. So it's really just propensity evidence. And all the prosecutor's doing is saying, look, he's a no good rotten bastard. He did it once, he did it twice, he's going to do it again if you don't convict him. Well, that's not relevant. You can't use that. But wait, there's more.

I think the evidence is simple and direct.

Meaning.

Meaning that a jury's not going to be able to confuse it. I'm basically entrusting the jury. They're going to be able to tell the difference between the facts of each case, and I'm basically just trusting them.

Right. So the evidence is simple. So exception number one, 404. Exception number two. Simple and direct. You don't need both. You can have one or the other. You could have both, but you don't need both to get back to square one where you're allowed to join the cases. Simple and direct. So this is the one that's all confusing. And this is where I argued and have argued recently. This is where the rubber meets the road. Because if the evidence is simple and direct, if the prosecutor's gonna, the prosecutor's gonna stand up and say, look, judge, we got separate witnesses. These are two years apart. You know, there's whole separate fact patterns. It's gonna be obvious to the jury that the evidence on victim one is here and the evidence on victim two is over here. It's all simple and it's very direct and no danger of spillover. Come on. And not only that, even if there is, we can instruct the jury that says you, the jury are not allowed to consider evidence on this victim to prove evidence of this victim. And we all know that jurors always follow instructions. So therefore that eliminates any concern whatsoever. It's very simple, it's very direct.

I don't like that. Why don't.

Troy's accused of crime. He's saying, hold on a second. Doesn't feel simple and direct to me.

I, and I think the argument that you made the Ohio Supreme Court and what I think is, is a sexual assault case. Like what you're saying I'm doing here is, you know, this is like one of the worst charges you can possibly get. Like, it's so taboo. It's so like, like the jury's gonna get overwhelmed with just the accusations alone that they're like, hold on, I can't

keep this apart, right? So we're gonna turn around and say, hold on a second. Wait one second. It's not so simple, and it's not so direct. And really what you're doing is redefining what that standard is all about. The standard is about making sure the simple and direct standards, about making sure that the jury. That you eliminate the jury's propensity to consider the spillover evidence, that you don't want the jury to say exactly what Troy's worried about in step two, which is it's really prejudicial, because they're going to look at this and say, come on, did it once, did it twice. And what Troy's arguing here is, look, the more inflammatory the nature of the accusations are and the more similar they are, the more likely or the less likely rather, it is that they're simple and direct. Let's sort of rephrase this. The goal is to make sure that you eliminate spillover evidence, evidence of one bucket spilling over to prove the other when it shouldn't. Prosecutors saying, come on, simple and direct. And we're saying, look, just because there are separate witnesses, just because the evidence is simple, some girl says Troy raped her here and some girl says Troy raped her there, doesn't mean that it's simple and direct. Simple and direct means something more. It means that there's a danger here. Guys, come on. There's a real danger here that the jury's going to consider the spillover evidence. And the more inflammatory the accusations are, such as a sexual assault, a child abuse, a nasty murder, whatever it is. And the more similar they are, the less it's likely that the jury can separate those two. Why? Not because they're stupid, but because they're human. Because back to the original propensity problem. It's like, we all know it's relevant. Like, we want to know if Troy did this again. I've volunteered a hundred jurors over the years, thousands of jurors over the years, and a lot of times people say, I'd like to know if he did something else before. Like, why is that? Because, of course, just human nature. It's human nature. I don't know if this is true, but the old lore is when a witness. Witness takes a stand, they raise their right hand and they swear to tell the truth. I think the old lord, I'll have to look this up, and I'm doing this on the fly, but I think the old lords, they used to burn an F or Some. I think it was an F for felony or something on the guy's palm. But because he had a conviction and you were showing the jury, or you're showing it might be all bs, I don't know, maybe not. But I heard somebody voir dire on this, and I thought, oh, that's interesting.

That's kind of interesting.

But the idea is you're taking an oath and you're showing them that, look, I got clean hands here, and I'm believable. But if you've got a prior conviction, we all know that matters. It affects your credibility just like it affects your likelihood of guilt. If you've done it once and you've done it twice and you've done it three times, they're going to say, look, come on, maybe a false accusation once, but twice, really? In the same M.O. no chance. It's astronomical odds. But our system is designed to make sure that the prosecutor has the burden to prove each element of each offense individually to the satisfaction of all 12 jurors. And that proof has to be isolated on its own. It can't spill over. So this is when. So I don't even know where we started all this. When can we join cases? Well, now we know if they're same or similar character and there's no prejudice. And even if there is prejudice, if the evidence would come in anyway because, you know, Troy's the kissing bandit, or Troy's ripped off the Ace hardware, or Troy knew enough from his prior acts that this would not be a mistake this time. He knows exactly what's going to happen. So now to say he didn't is stupid and. Or it is. The evidence is so simple and so direct, meaning the danger of spill or evidence is remote. So what's a scenario where it might be simple and direct?

Simple and direct could probably be like something less inflamed. So a simple B and E and breaking and maybe like a dui. I don't know.

I'm just trying to think so. Look, it could be two breaking and entering charges, but they're like different facts. It's not the same MO or whatever. And what we argue and what we continue to argue is, like, look, if this one isn't simple and direct, or if this is simple and direct, when is it not? What case would it ever not be simple and direct? If a jury instruction fixes it and we got these two. And that's the better question. And then the final question I always ask here is advocating for my clients. Look, if it is true that we all have the same goal here and that, look, we may want a different outcome, but I think we can at least agree on the same goal. We want Troy to get a fair trial. We don't want Troy to be tried and then think, eh, it wasn't so fair. And if we're going to convict this no good rotten SOB because he's a dirty, rotten rapist, then let's do it and let's do it right. And then you can bank on it. You can put your head on your pillow at night and go to sleep and say, at least in my county things are fair. Troy got a fair trial. And guess what? He is, always has been and will continue to be a no good rotten sob and we convicted him on the evidence. Why not just do them twice? If the goal. And this stumps people. Yeah, like if the prosecutor's goal, judge, is not to rely. If they're acting like they don't really want the jury to draw this negative inference because he did it once, he did it twice, then why not just try it twice? And they're going to say, well, it's more work. That's your freaking job. I mean, how many cases? What's the difference if you try him twice or the next guy? It doesn't make it. It's your job. Or the cop would have to testify twice. I don't. Look, with all due respect, I pay this cop's salary with my tax dollars. He can come in twice, he can come in 10 times. I don't care what his job is. Yeah, that's what the system is. If you don't like the system, we can change it. But this is what it is, all right? You got questions, you got comments. That was a little bit longer than normal. We'd love to hear it. But now you know, even if you didn't want to know, now you know when you can link up cases and try them together and when you can't. And if you got that figured out, please let me know because I don't have it figured out yet. I just, I just know what I, I bellyache about in the courtroom. So look, lawyertalkpodcast.com if you got your own question or leave it in the socials.