RULE 4.4
                   SEVERANCE OF OFFENSES AND DEFENDANTS

(a) Timeliness of Motion--Waiver.

  (1) A defendant's motion for severance of offenses or defendants must be
made before trial, except that a motion for severance may be made before or
at the close of all the evidence if the interests of justice require.
Severance is waived if the motion is not made at the appropriate time.

  (2) If a defendant's pretrial motion for severance was overruled he may
renew the motion on the same ground before or at the close of all the
evidence. Severance is waived by failure to renew the motion.

(b) Severance of Offenses. The court, on application of the prosecuting
attorney, or on application of the defendant other than under section (a),
shall grant a severance of offenses whenever before trial or during trial
with consent of the defendant, the court determines that severance will
promote a fair determination of the defendant's guilt or innocence of each
offense.

(c) Severance of Defendants.
  (1) A defendant's motion for severance on the ground that an out-of-court
statement of a codefendant referring to him is inadmissible against him
shall be granted unless:

     (i) the prosecuting attorney elects not to offer the statement in the
case in chief; or

     (ii) deletion of all references to the moving defendant will eliminate
any prejudice to him from the admission of the statement.

  (2) The court, on application of the prosecuting attorney, or on
application of the defendant other than under subsection (i), should grant
a severance of defendants whenever:

     (i) if before trial, it is deemed necessary to protect a defendant's
rights to a speedy trial, or it is deemed appropriate to promote a fair
determination of the guilt or innocence of a defendant; or

     (ii) if during trial upon consent of the severed defendant, it is
deemed necessary to achieve a fair determination of the guilt or innocence
of a defendant.

  (3) When such information would assist the court in ruling on a motion
for severance of defendants, the court may order the prosecuting attorney
to disclose any statements made by the defendants which he intends to
introduce in evidence at the trial.

  (4) The assignment of a separate cause number to each defendant of those
named on a single charging document is not considered a severance. Should a
defendant desire that the case be severed, the defendant must move for
severance.

  (d) Failure To Prove Grounds for Joinder of Defendants. If, pursuant to
section (a), a defendant moves to be severed at the conclusion of the
prosecutions case or of all the evidence, and there is not sufficient
evidence to support the grounds upon which the moving defendant was joined
or previously denied severance, the court shall grant a severance if, in
view of this lack of evidence, failure to sever prejudices the moving
defendant.

(e) Authority of Court To Act on Own Motion. The court may order a
severance of offenses or defendants before trial if a severance could be
obtained on motion of a defendant or the prosecution.

[Amended effective December 28, 1990; September 1, 2007.]  Comment
Supersedes RCW 10.46.100.