Joinder of multiple criminal counts and/or multiple defendants under the Code of Criminal Procedure necessarily juxtaposes judicial and prosecutorial efficiency with the individual constitutional rights of the accused. Of these, due process and the right to confront witnesses are, by no means, insignificant. But for prosecutors, defense lawyers and judges alike, the most vexing practical problem in this area is the interplay between compulsory joinder, permissive joinder and a defendant’s right to a speedy trial. As of the close of the Illinois Supreme Court’s November 2012 session, a decision has yet to be rendered in a case arising out of the First District involving the compulsory joinder-speedy trial rule, first discussed in People v.Williams.
In its 2012 decision in People v. Hunter , the First District of the Illinois Appellate Court affirmed the trial court’s decision to dismiss five of six counts of an indictment filed against an out-of-custody defendant. The State had originally charged the defendant, by information, with a single count of possession of cannabis with intent to deliver. After the defendant invoked his right to a speedy trial (and more than the statutorily allowed 160 days after the speedy trial invocation) the State obtained an indictment, charging the defendant with the original cannabis charge as well as five new, gun-related offenses. The trial court ruled the five added counts were subject to compulsory joinder with the original cannabis charge. Because the new and additional charges were filed after the speedy trial term elapsed, they were dismissed leaving the State to prosecute only the original charge of possession of cannabis with intent to deliver.
It is hope of astute practitioners that through the Hunter case, the Supreme Court might provide some much-needed guidance on the issue of compulsory joinder. But there is also a paucity of useful appellate analysis in the realm of permissive joinder and precisely what constitutes a comprehensive criminal transaction under the Code of Criminal Procedure. As the Second District recently observed in People v. Walston, “[o]ur case law is littered with cases that apply the joinder test correctly and cases that do not. This inconsistency is compounded by the failure of these inconsistent cases to acknowledge any inconsistency. Thus, the only things “settled” within our case law on this point are inconsistency and confusion.” Accordingly, as the Supreme Court’s decision in Hunter is eagerly awaited, a review of the unsettled principles of criminal case joinder is in order. More broadly, the Walston court’s disapproval of “judicial efficiency” as a legitimate factor to be considered in joinder analysis invites some thought and discussion on the liberal approach that trial courts often take in joining multiple offenses and defendants in a single criminal prosecution.
I. Statutory Background
Sec. 111-4(a) of the Code of Criminal Procedure provides that:
Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same comprehensive transaction.
While the notion of “same act” is straight forward enough, what constitutes “the same comprehensive transaction” in the arena of criminal law can make for thorny, if not tortured, appellate analysis. This may be due, at least in part, to the fact that the Illinois rule for criminal case joinder is not in lock-step with the federal rule. Rule 8(a) of the Federal Rules of Criminal Procedure allows charges to be joined where they “are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Although the Illinois rule is “based on” the federal rule, the Illinois rule is less expansive since it omits the phrase “same or similar character” language.
II. Common Factors in Establishing a “Comprehensive Criminal Transaction”
A variety of factors have been employed to determine whether two or more crimes are part of the “same comprehensive transaction” and, therefore, subject to permissive joinder under the Code of Criminal Procedure. The most commonly accepted of these factors are: (1) “the proximity in time and location of the offenses;” (2) “the identity of evidence needed to demonstrate a link between the offenses;” (3) “whether there is a common method in the offenses;” and (4) “whether the same or similar evidence would establish the elements of the offenses.”
That “proximity in time and place between two or more offenses” is the most critical factor in comprehensive transaction analysis is, to say the least, obvious. As the court observed in Walston, “[n]o matter how similar two incidents are, incidents not occurring within a very close time and space to one another will most likely be separate incidents.” What constitutes “a very close time and space,” however, is more loosely defined in Illinois law than “pornography” is in First Amendment jurisprudence. Moreover, that determination is left to the very broad discretion of the trial court.
People v. Harmon provides an instructive example of just how open to interpretation proximity in time and place can be. In an incident where defendant Harmon and three confederates were involved in a fight at a party with rival gang members, Harmon and friends left the party and walked toward a bar known to be frequented by members of the rival gang. According to the testimony at trial, some period of time elapsed before they then jumped and beat up two members of the rival gang who were sitting outside the bar. After even more time had elapsed, Harmon and his group went to sit on the porch of a house several blocks away. At some later point, as the group sat on the porch, they saw a car with two rival gang members inside. They subsequently attacked the passengers inside the car, killing one of the rival gang members.
Because the murder took place “only a few blocks away” from the other crimes, all the crimes took place within a “short” period of time (likely less than one hour), and all the crimes “sprang from [the] common motive to attack members of a rival gang,” the appellate court held that joinder was appropriate. The fact that the time frame between these incidents was not precise and could well have been in excess of an hour, the fact that there were three different locations involved, and the fact that the court found it somehow important within a proximity analysis that the co-defendants were gang members, all illustrate just how elastic the application of this first factor can be. The focus on “gang membership” as being germane to proximity suggests that the time frame between offenses could be expanded to as long as gang membership lasted in order to justify joinder.
The second factor, “the identity of evidence needed to demonstrate a link between the offenses,” asks whether the court can identify evidence linking the crimes. Identifying evidence linking the crimes, however, is sometimes confused with evidence of two crimes being identical. In noting how the second factor can be confused with the fourth factor —“whether the same or similar evidence would establish the elements of the offenses” - the Second District has pointed out that“[i]f evidence links the two crimes, then, by definition, it will be identical for both crimes.” 
The more accepted application of the second factor is illustrated in People v. Quiroz. In that case, there was evidence linking two shootings to the defendant's alleged armed robbery during his escape. During the time between the two sets of crimes, the defendant had attempted to gain entrance into the home of a fellow gang member as he fled the scene of the shootings. This evidence linked the armed robbery with the shootings and also helped establish that all three crimes were part of a common criminal scheme, because the evidence framed the defendant's stealing the third victim's car as a continuation of his attempts to flee the scene of the two shootings. Accordingly, the court identified evidence of the defendant's intervening attempt to hide in the house of an acquaintance as linking his crimes of shooting two people and stealing a car to escape.
Although some courts have referred to the third factor as the “common method” factor, there is often a conflation between the notion of a common method between offenses and whether separate offenses are part of a “common scheme.” Additionally, some cases have used ‘common design’ and ‘modus operandi’ interchangeably without noting the two concepts are significantly distinguishable. While a modus operandi in two or more different crimes may be relevant and admissible as “other crimes” evidence, it does not necessarily bear on the relationship between the crimes themselves. A common design refers to a larger criminal scheme of which the crime charged is only a portion. Modus operandi means, literally, ‘method of working,’ and refers to a pattern of criminal behavior so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer.”
As discussed above, the fourth factor, the question of “whether the same or similar evidence would establish the elements of the offenses,” seems to invite a tendency to conflate it with the second factor. Despite its attempt at alleviating the confusion and inconsistencies in joinder analysis, the Walston opinion provides no substantive guidance whatever as to what this factor requires. The opinion merely cryptically states that “[t]his factor may be considered in the joinder analysis, but only if it is directed at the target of determining whether multiple offenses are part of a single comprehensive transaction.”
III. Disfavored Factors in Establishing a “Comprehensive Criminal Transaction”
In addition to the foregoing factors, some courts have also relied on other factors, such as “whether the defendant is in a similar position of authority in relation to each victim;” “whether the victims are similar;” and “whether the joinder will promote judicial efficiency.”
Notwithstanding its failure to illuminate on the fourth factor in joinder analysis, as discussed above, the Waltson opinion does go a long way to discredit these additional factors in an attempt to bring more clarity to what the court considered a line of cases that was inconsistent and confusing. Taking what was arguably a slight detour from the principle of stare decisis, the Second District in Walston pointedly removed the object of “judicial efficiency” from proper comprehensive joinder analysis. The court observed:
In People v. McLemore, 203 Ill.App.3d 1052, 149 Ill. Dec. 187, 561 N.E.2d 465 (1990), the case that appears to have originated the efficiency factor, the defendant argued that her trial counsel was ineffective for failing to move to sever counts for which she was tried, and the court's entire analysis of the severance issue was as follows: “The joinder of the charges was reasonable since the testimony of the arresting officers was applicable to both [offenses] and to require an additional trial would have been judicially inefficient.” McLemore, 203 Ill.App.3d at 1057–58, 149 Ill. Dec. 187, 561 N.E.2d 465. As McLemore did not so much as cite the relevant statute, or any relevant factors used to construe the statute, for the joinder issue, we take it as weak support for the proposition that an additional factor should be added to the “same comprehensive transaction” analysis . . . To the extent that a court is tempted to invoke judicial efficiency as a matter of policy, we respond that any policy debates regarding the significance of judicial efficiency were settled when the legislature enacted the joinder statute.
The Walston opinion also dispatched the remaining supplemental factors identified in People v. Patterson, noting:
Whether there is any “similarity between the victims” may bear on modus operandi, but the factor is by itself otherwise irrelevant to whether two events were part of the same comprehensive transaction. Likewise whether “the defendant stood in a similar position of authority with respect to the victims.” Unless those factors can somehow be used to demonstrate a common scheme of which each event was a part, they should not be considered in the joinder “same comprehensive transaction” analysis.
To its credit, the Walston opinion deals squarely with a fundamental problem in criminal joinder analysis: The tension between the rights of the accused and the institutional goal for efficiency. To be sure, joining charges in a single trial is a great resource saver. But the risks of joinder for a defendant are many and significant. The accused who may be guilty of one charge but innocent of another may find it difficult to present separate defenses to separate charges, particularly if he or she wants to take the stand on the second count but not the first. More significantly, with liberal joinder of multiple criminal counts, there is a strong probability that a jury will make an inference of a defendant’s “criminal disposition,” cumulating the evidence of the various crimes charged and finding guilt, when, if considered separately it would not so find.
Although the inherent problems that joinder can cause for the accused are significant, they are ultimately public policy considerations which should properly remain in the purview of the legislative branch rather than being assumed by the judiciary. But if the judiciary, in the proper exercise of its authority, establishes a judicial “test” for factors that weigh for or against joinder, it is incumbent upon the judiciary to clearly define the factors that will meet the test. The Hunter case, currently pending in the Supreme Court, provides the opportunity for such clarity.
Finally, regardless of whether the court seizes the opportunity in Hunter to provide clarity in this area, the specter of efficiency is likely to remain an underlying rationale for trial courts to default to a position that favors joinder. Although, as Walston warns, it may not be appropriate to consider judicial and prosecutorial efficiency explicitly in joinder and severance analysis, it is naïve to think that trial judges will not continue to weigh efficiency very significantly their decisions to allow a joinder or to sever a joined count or defendant. It is, therefore, contingent upon the practitioner advocating against joinder to raise the issue of this unspoken “elephant in the room” in no uncertain terms before the trial court.
 94 Ill. App. 3d 241 (1981).
 2012 Ill. App. (1st Dist.) 092681.
 386 Ill.App.3d 598, 900 N.E.2d 267, 326 Ill.Dec. 631 (2nd Dist. 2008).
 See, 725 ILCS Ann. 5/111–4, Committee Comments—1963.
 See, 5 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure § 17.1(b), at 6 n. 21 (3d ed.2007) (classifying Illinois’ joinder statute as one in which “the absence of a ‘same or similar character’ category of joinder is quite conspicuous”).
 People v. Gapski, 283 Ill.App.3d 937, 942, 219 Ill.Dec. 228, 670 N.E.2d 1116 (1996).
 Walston, 386 Ill.App.3d 598, 605.
 194 Ill.App.3d 135, 141 Ill.Dec. 94, 550 N.E.2d 1140 (1990).
 See, People v. Duncan, 115 Ill.2d 429, 442, 106 Ill. Dec. 1, 505 N.E.2d 307 (1987) (“The State has identified evidence providing a link between the offenses”).
 Walston, 386 Ill.App.3d 606.
 People v. Quiroz, 257 Ill.App.3d 580, 195 Ill. Dec. 78, 628 N.E.2d 542.
 See, e.g., People v. Gapski, 283 Ill.App.3d at 942, 219 Ill. Dec. 228, 670 N.E.2d 1116.
 Quiroz, 257 Ill.App.3d 580, 586. (three crimes were part of a common scheme where the last crime was committed in an attempt to flee the scene of the first two).
 People v. Barbour, 106 Ill.App.3d 993, 62 Ill. Dec. 641, 436 N.E.2d 667 (1982).
 People v. Patterson, 245 Ill.App.3d at 588, 185 Ill. Dec. 716, 615 N.E.2d 11.
 A joint trial “enables the state to avoid the duplication of evidence required by separate trials, to reduce the inconvenience to victims and witnesses to minimize the time required to dispose of the offenses, and to achieve a variety of other economies in connection with prosecutorial and judicial resources.” 2 ABA STANDARDS FOR CRIMINAL JUSTICE, supra note 22, cmt. at 13.2.1.
 See, Cross v. United States, 335 F.2d 987 (D.C. Cir. 1964).
 See, Drew v. United States, 331 F.2d 85, 88 (D.C. Cir. 1964).
Brent Christensen was recently appointed to the DCBA Editorial Board. He is a 1993 graduate of The John Marshall Law School and veteran of the U.S. Navy Seabees. He is a solo practitioner focused on DUI Defense.