544
Stevens, J., concurring in judgment
defenses because it may operate to reduce the burden on the prosecutor, in two general ways. First, joinder may introduce what is in effect a second prosecutor into a case, by turning each codefendant into the other's most forceful adversary.3 Second, joinder may invite a jury confronted with two defendants, at least one of whom is almost certainly guilty, to convict the defendant who appears the more guilty of the two regardless of whether the prosecutor has proven guilt beyond a reasonable doubt as to that particular defendant.4 Though the Court is surely correct that this second risk may be minimized by careful instructions insisting on separate consideration of the evidence as to each co-defendant, ante, at 540-541, the danger will remain relevant to the prejudice inquiry in some cases.5
Given these concerns, I cannot share the Court's enthusiastic and unqualified "preference" for the joint trial of defendants indicted together. See ante, at 537. The Court correctly notes that a similar preference was announced a few years ago in Richardson v. Marsh, 481 U. S. 200, 209 (1987), and that the Court had sustained the permissibility
3 "Defendants who accuse each other bring the effect of a second prosecutor into the case with respect to their codefendant. In order to zealously represent his client, each codefendant's counsel must do everything possible to convict the other defendant. The existence of this extra prosecutor is particularly troublesome because the defense counsel are not always held to the limitations and standards imposed on the government prosecutor." United States v. Tootick, 952 F. 2d 1078, 1082 (CA9 1991). See also United States v. Romanello, 726 F. 2d 173, 179 (CA5 1984).
4 See State v. Vinal, 198 Conn. 644, 652, 504 A. 2d 1364, 1368 (1986) (in joint trial with mutually antagonistic defenses, "where one defendant is found not guilty, it becomes likely under these circumstances that the conviction of the losing defendant is more a result of his codefendant's success in defending himself than it is a product of the state's satisfaction of its constitutional duty to prove the accused guilty beyond a reasonable doubt").
5 Tootick, 952 F. 2d, at 1082. See also People v. Braune, 363 Ill. 551, 556, 2 N. E. 2d 839, 842 (1936) ("[N]o judge, however learned and skillful," could have prevented risk of prejudice in particularly aggravated case).
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