Co-defendants in a criminal case may be tried together or have separate trials. In either situation, it’s possible that one lawyer jointly represents two or more co-defendants in the same case. While that might make sense from a practical viewpoint, judges are typically leery (as are attorneys) of joint representation. Read on to learn about the risks of joint representation in criminal cases.
What Is a Co-Defendant?
Co-defendants are two or more persons charged with the same crime or in the same criminal case.
Let’s say prosecutors charge two people with robbing a liquor store—these two people are co-defendants. Both might be charged with the same offense or different offenses. For instance, prosecutors might charge one co-defendant (the alleged robber) with armed robbery and the other co-defendant (the alleged getaway driver) with conspiracy and aiding and abetting.
Multiple people can also be co-defendants. Take organized crime as an example. One drug trafficking case, racketeering case, or multi-state charitable fraud scheme could involve several co-defendants.
What Is Joint Representation in a Criminal Case?
Joint representation means one lawyer represents multiple co-defendants. At first blush, it seems like this would make sense. Take the armed robbery case above—you’d think both defendants would raise the same defenses. Having one lawyer seems practical and economical. But that’s not always, or even usually, the case.
Co-defendants can turn on each other, blame the other co-defendants, or testify against the others. For instance, say the getaway driver claims her co-defendant threatened to harm her family if she didn’t drive, but the alleged robber wants to raise an alibi defense. If one lawyer represents both the alleged robber and getaway driver, that lawyer would have to choose which defense to raise, given that the defenses conflict (one defense acknowledges the defendants committed the alleged crime, and the other denies it).
Co-defendants often have conflicting interests that make it hard for one attorney to mount an equally effective legal defense for all of them. When that’s true, joint representation could violate a co-defendant’s constitutional right to effective assistance of counsel, which is part of the Sixth Amendment’s guarantee of a fair criminal trial.
What Are Examples of Conflicts Involving Co-Defendants and Joint Representation?
Criminal defendants are entitled to their lawyers’ undivided loyalty. A conflict of interest arises in joint representation when co-defendants have different needs and interests, and the attorney can’t defend one of them without hurting the other.
In addition to the armed robbery example, here are a few more examples to help explain how co-defendants may have conflicting interests.
- One man is charged with selling illegal drugs, and his co-defendant is charged with buying them. The buyer accepts a plea agreement that allows him to avoid trial if he describes who sold him the drugs, which will hurt the seller's defense.
- One attorney represents two women charged with conspiracy to commit a crime. At trial, the attorney defends one co-defendant by having her blame the other woman.
- One of the co-defendants in a gang rape case confesses to the crime and implicates another co-defendant in the confession.
- In a drug trafficking case, a prosecutor offers one of the co-defendants (an alleged small-time dealer) immunity in exchange for an agreement to testify against another co-defendant (the alleged kingpin).
Can Co-Defendants Object to Joint Representation?
Yes. If you’re facing possible jail time for criminal charges but can’t afford to hire your own lawyer, the court will usually appoint a public defender or a private lawyer to represent you for free. You can object if the court appoints the same attorney to represent you and a co-defendant. Once you’ve objected, you should have the opportunity to show that a potential conflict of interest with your co-defendant jeopardizes your right to a fair trial. The court must investigate the potential conflict in a joint representation once you’ve objected.
Under rules that apply in federal criminal cases, courts must look into the possibility of a conflict in all cases involving joint representation, even if the co-defendants don’t object. The courts must also explain to co-defendants that they have a right to effective assistance of counsel, including representation by separate attorneys. (Fed. R. Crim. P. 44.) Many states have similar rules.
Can Co-Defendants Agree to Joint Representation in a Conflict Waiver?
Even if joint representation presents a conflict of interest, co-defendants may still want to be represented by the same attorney. They might prefer that particular lawyer or believe sharing an attorney will save money on legal fees. After the court explains the risks involved, the co-defendants may sign a waiver of their right to the effective assistance of counsel without conflicts.
Despite a waiver, the judge may disqualify the attorney from one case if there’s serious potential for conflict. This means the co-defendants will need to hire separate attorneys or have the court appoint separate attorneys. Co-defendants don’t have a right to joint representation.
Can a Co-Defendant Later Claim Ineffective Assistance of Counsel?
If you didn’t initially object to joint representation and later discover a conflict of interest, what can you do? You might claim that your conviction resulted from ineffective assistance of counsel, but you’ll have to prove that there was an actual conflict of interest—not just a potential one—and that it negatively affected your lawyer’s defense in your case. In cases where co-defendants signed a waiver, the ability to present this argument on appeal might be waived as well.
Talk to a Lawyer
If you’re considering signing a waiver to allow joint representation with another co-defendant, make sure you thoroughly discuss the risks with your lawyer, so that you understand how joint representation might affect your defense.