What's Going On?
by: Ryan • June 27, 2014 • no comments
I haven't written much about the improper joinder demurrer. When it hasn't won, it's been preserved, and it is currently before the Oregon Court of Appeals. I still believe it should be filed, but I've largely moved on to writing about other issues (like the codefendant demurrer).
The state has settled into its main response. The demurrer quotes cases from a long time ago regarding this demurrer which said that the indictments would survive the demurrer if there's language that says something like, "Count 2, as part of the same act and transaction as Count 1, . . . ." The obvious implication is that if such language is missing -- and there isn't another way to tell if the counts are properly joined -- then a demurrer should have been granted. BUT, and here's a big but, two of those cases -- both of which involved the appropriate language -- say something like, "And we're going to deny the demurrer because the defendant can't prove that the counts weren't part of the same act and transaction."
Jump to 2014, and the state is going forward with the argument that the defendant must prove that the counts aren't properly joined because after all, when the only theory of joinder was same act and transaction, the appellate courts said, "the defendant must prove the counts weren't part of the same act and transaction."
My response -- the obvious response -- is that the appellate courts only said the defendant had to prove separate act and transactions BECAUSE the state alleged in the indictment the same act and transaction. That is, when the state makes the proper allegation, the defendant must disprove it to get the indictment dismissed. That's not the same thing as saying, in the absence of the allegation, the defendant must disprove an allegation which hasn't been made.
Why do I think I'm right? I really is a very simple argument. The relevant Oregon statute says that all indictments shall include one count and one count only, UNLESS. . . And then it goes on to list the three exceptions. Bottom line: if the state wants to rely on an exception to the general rule, it must allege which exception applies.
Okay, fine, that's your position, Mr. Scott? Any authority for that? Yep. For the general principle, at least. On most felonies, the standard statute of limitations is 3 years. But some crimes allow for that period to be extended, in the right factual circumstances. When facts exist that permit an exception to the normal statute of limitations, the law says the FACTS IN SUPPORT OF THE EXCEPTION must be plain on the face of the indictment.
Operating on the same principle, if the state wants an exception to the rule of one count per indictment, it must allege the exception. It really is that simple. Still, I am worried about the Court of Appeals. Issue of first impression and all that. But we'll see.
