JOINT REPRESENTATION OF CO-DEFENDANTS IN A CRIMINAL CASE
From MN Bench Book - Trial Procedures & Practices for Judges
Joint representation of co-defendants in the same criminal prosecution is governed by Rule 17.03, Subd. 5, Rules of Criminal Procedure, (effective July 1, 1975).
- 1. Rule 17.03 subd 5 states:.
- When two or more defendants are jointly charged or will be tried jointly under subdivisions 2 or 4 of this rule, and two or more of them are represented by the same counsel, the procedure hereafter outlined shall be followed before plea and trial.
- (1) The court shall address each defendant personally on the record, and
- A. Advise the defendant of the potential danger of dual representation, and
- B. Give the defendant an opportunity to question the court on the nature and consequences of dual representation.
- (2) The court shall elicit from each defendant in a narrative statement that:
- A. The defendant has been advised of the right to effective representation,
- B. That the defendant understands the details of defense counsel's possible conflict of interest and the potential perils of such a conflict,
- C. That the defendant has discussed the matter with defense counsel, or if the defendant wishes with outside counsel and that the defendant voluntarily waives the Sixth Amendment protections.
- 2. While not explicitly in the rule, a court should appoint counsel to advise the second and additional of two or more defendants of the dangers and inherent conflicts involved in joint representation.
- 3. The burden is on the prosecution to establish beyond a reasonable doubt that a prejudicial conflict of interest did not exist.
- 4. The comment to Rule 17.03, subd. 5 states:
The procedures required by Rule 17.03 Subd. 5 concerning representation by the same counsel of two or more defendants jointly charged or tried are taken from State v. Olsen, 258 N.W.2d 898 (Minn.1977). That case requires that the waiver of Sixth Amendment rights obtained from the defendant must be stated in clear and unequivocal language. If a record is not made as required or if the record fails to show that the procedures were followed in every important respect, State v. Olsen, supra, places the burden on the prosecution to establish beyond a reasonable doubt that a prejudicial conflict of interest did not exist.