In State v Sawatzky, 339 Or 689, 125 P3d 722 (2005), the Oregon Supreme Court noted that enhancement facts are elements under the United States Constitution. Therefore, when an enhancement is alleged, the state is proceeding on an aggravated version of the underlying offense. See also Southern Union Co. v. US, 132 S Ct. 2344 (2012) (affirming that there is no constitutional difference between sentence enhancements and elements of an offense). However, the Sawatzky court also noted that Hurtado v. California, 110 US 516, 4 S Ct 111, 28 L Ed 232 (1884) stands for the proposition that the indictment clause, part of the 5th Amendment of the United States Constitution, was not incorporated in state prosecutions. Though I have taken issue with the continuing validity of Hurtado in the past, I now believe there is a better argument to be made. And that argument is this: a defendant who is charged with an aggravated crime is entitled to at least a preliminary hearing under the due process clause of the 14th Amendment of the United States Constitution.
This issue has not been squarely presented to the Oregon appellate courts. While the federal constitution requires an indictment on all elements, and Oregon's constitution requires a preliminary hearing or indictment, sentence enhancement facts -- though indistinguishable from elements in aggravation under the federal constitution -- slip between the protections afforded by the two constitutions.
This argument corrects that. It makes the simple case that preliminary hearings -- where the accusations are submitted to a magistrate, who would then find there was sufficient evidence for the allegations to go forward -- are an essential and longstanding part of due process. The overwhelming majority of states require preliminary hearings or indictments, recognize their importance in protecting against arbitrary prosecutions. And two states -- Idaho and Georgia -- have both held that the federal due process clause itself requires a preliminary hearing or the equivalent in state prosecutions. Ironically, both those states quote the aforementioned Hurtado case for that proposition. Few other states have reached the issue, largely because most of them don't have to: their own state constitutions recognize the importance of a preliminary hearing in the absence of an indictment.
The motion has been written. It objects to submitting to the jury any enhancement facts that haven't first been approved via a preliminary hearing. It is available upon request. (And if you want the improper joinder demurrer as well, just e-mail me with 'Send me the two-fer!' in the subject line.) Its primary weakness is that it doesn't go deeply into the history and importance of the preliminary hearing. But you may want to leave that for the appellate attorney.
When it comes to enhancement fact notice, I have previously argued that the minimal checklist requirement that is currently in place demonstrates just how important Grand Juries are. I get a lot of frivolous upward departure notices, and they show up significantly more often than frivolous indictments. Whether it's because the Grand Jury truly filters out the crap, or it's because prosecutors are more circumspect when faced with at least a little bit of scrutiny, I don't know, and it doesn't really matter anyway.
And if we start getting prelims, it may not make a practical difference for, say, the factor of "on supervision." But it could be exceptionally helpful if the state is alleging dangerous offender, or harm greater than typical, or vulnerable victim.
Again, it's yours for the asking. "Send me the two-fer!"