Putting Together a Severance Argument in Light of the New Factors

by: Ryan Scott • September 27, 2025 • no comments

The Oregon Supreme Court's opinion in State v. Hernandez-Esteban is both a substantive and subtle analysis of many of the factors that play a role in severing charges for separate trials. I've listed a few considerations when you are drafting your own severance motion:

(1) Even if joinder of the charges are proper, why they are joined matters and is worth litigating. This is because the bar for "substantial prejudice" is lower if the only basis for joinder is "same or similar charges" than it is for "same or similar charges" and "common scheme or plan." Hernandez-Esteban, 374 Or at 319-320("[J]oinder for “same or similar character” purposes may often begin further up the scale, closer at the outset to the threshold of “substantial prejudice” that may require “separate trials of counts or * * * other relief justice requires.”")

(2) At least implicitly, the opinion suggests that joinder of sex abuse I (in this case, an unwanted kiss on the lips) is not always a "same or similar charge" as nightly touching of the buttocks and vagina over a four year period. Hernandez-Esteban, 374 Or at 324("To reiterate, the nature of the charged conduct, while possibly sufficiently similar in the nature of the crimes charged to permit joinder, was nonetheless substantially different.")

See also State v. Garrett, 300 Or App 671, 455 P3d 979 (2019). When, in response, the state relies on cases like State v. Buyes, 280 Or App 564, 382 P3d 562 (2016), really scrutinize whether all aspects of Buyes (particularly the temporal component) are still good law in light of Garrett.

(3) "Accordingly, the requirement for a showing of case specific substantial prejudice is not meant to prohibit any consideration of general concerns; rather, it signifies that those general concerns, standing alone, will be insufficient to show substantial prejudice that could affect the fairness of the trial. In other words, consideration of those general concerns should occur within the grounding framework of the specific facts of the case and the evidence at hand." Hernandez-Esteban, 374 Or at 317.

(4) A big argument in favor of substantial prejudice arising from joinder were the differences in the quality of the charges. "That is so, defendant argues, because the nature of the alleged conduct against M was not inherently sexual; the surrounding circumstances did not establish that the conduct was sexual; M was a less cogent witness whose pretrial statements were equivocal and confusing; and defendant had multiple viable defenses to M’s allegations that were not available with respect to A’s allegations." Id. at 31.

Note that "viable defenses" in this case include the fact that a defense against M's allegations would be that she misconstrued the conduct at issue (a kiss) as sexual, when no such argument would have had any merit with regard to A's allegations (touching of the vagina while she slept).

"As a result, there was a substantial risk that the jury would use the counts involving A to supply proof of sexual purpose as to the counts involving M, thereby interfering with defendant’s efforts to defend against the charges involving M. In other words, defendant offered a case-specific argument that M’s allegations were weaker from both an evidentiary perspective and as to the nature of the charged criminal activity. Defendant’s arguments were thus neither abstract nor generalized but grounded in the perceived risk that the jury in this case might impermissibly use the evidence of defendant’s abuse of A to supply the mental state required on the charges against M."

Id. at 322.

(5) The opinion more or less assumes without deciding that the conduct against both girls were part of a common scheme or plan, and then finds, even then, there was substantial prejudice. But to be clear, these crimes were not part of a common scheme or plan because there was no a substantial overlap of evidence. Any old case law that says otherwise has been implicitly overruled by subsequent opinions.

Joinder of offenses “under ORS 132.560(1)(b)(C) is appropriate if "the joined counts [or charges] are logically related, and there is a large area of overlapping proof" between them. State v. Dewhitt, 276 Or App 373, 383, 368 P.3d 27 (2016), quoting State v. Johnson, 199 Or App 305, 111 P3d 784 (2005).

(6) The opinion specifically says you don't necessarily need an expert to make the observations made by the expert in this case.

This is an area ripe for delicious disagreement, since the opinion covers so much ground, but if I could distill Hernandez-Esteban to a single point, it would be this:

When we say that one set of charges is weaker than the other set of charges, what we mean is that there is something missing from one set of charges that makes the state's case harder to prove.  When, because of joinder,  the jury might use the other case to fill in whatever is missing, that is substantial prejudice. 

What's missing could be the nature of the conduct.  It could be the identification of the defendant.  It could be the credibility of the complainant.    If the other case shores up that weakness, you have substantial prejudice resulting from joinder.

That's it for now. More thoughts later.