the easy demurrer
by: Ryan • December 14, 2013 • no comments
This discussion will be familiar to anyone who saw my presentation last week at the winter OCDLA conference.
As you know, an indictment can contain multiple counts and it can encompass multiple defendants. One of the grounds for joinder is if the counts are (A) of the same or similar character. ORS 132.560.
That being said, let me ask a question based on the following hypothetical. John commits a burglary of a residence on January 1 in Multnomah County. Mary commits a burglary of a residence on February 1 in Multnomah County. John and Mary don't know each other. Neither helped out in the other's burglary. No connection at all, except both defendants committed burglary.
Could their crimes be joined on the same indictment?
And you're thinking, of course not. But it's the why that's interesting.
Playing devil's advocate, I would note that the crimes are of the same or similar character. There's no requirement that such crimes be from the same criminal episode. In fact, it's taken for granted that, when crimes are joined because they are the same type of crime, that they aren't from the same criminal episode. Otherwise, they'd just be joined based on the fact that they are from the same criminal episode.
In response, you'd point out that I was leaving out a big part of the joinder statute. Specifically, I was leaving out this limitation:
- (b) Two or more offenses may be charged in the same charging instrument in a separate count for each
offense if the offenses charged are alleged to have been committed by the same person or persons and are:
- (A) Of the same or similar character;
Emphasis is mine, of course. But I'd counter you by saying, sorry, that doesn't get you there. All that bolded phrase means is that the crimes in the indictment are all committed by at least one person named in the indictment. And both John and Mary are named in the indictment. That phrase doesn't mean that both John and Mary have to be guilty of each crime in the indictment.
If I made that argument, I'm pretty sure I'd be wrong. If that phrase means anything, it means that all crimes have to be committed by all defendants. If it didn't mean that, then I'd be right, but you'd get a pretty crazy result, allowing the state to join John and Mary's burglaries for no rationale reason.
But so what, you ask. In my county, at least, prosecutors aren't putting John and Mary in the same indictment. What has this exercise gotten us?
It's gotten you this: the state frequently joins co-defendants on an indictment, but it doesn't charge them all with the same crimes. Jack may be charged with four of the counts, Jill with three, and maybe those three will totally overlap with three of John's or maybe just partially. But the indictment does not allege that both Jack and Jill committed all the crimes.
Yet we agreed, didn't we, that the language "the offense charged are alleged to have been committed by the same person or persons" meant both defendants had to be guilty of all offenses. (We did agree to that, right?) The state can't simply say, well all the charges were committed by at least one of the persons named in the indictment. If that's true, and it would produce the absurd result above if it wasn't, then Jack and Jill's indictment is subject to a dismissal, specifically a demurrer. If you need a sample demurrer, you can order the materials from the winter 2013 OCDLA conference or you can e-mail me directly.
