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Suddenly Relevant and Significant Opinion . . . .from 1973

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by: Ryan • March 31, 2016 • no comments

If, however, a case goes to trial and the evidence establishes that the charges are not properly joined, then either: (1) the improperly joined charges should be dismissed at the defendant's motion so that they can be the basis of a separate, later trial, see, State v. Clipston, 3 Or. App. 313, 473 P.2d 682 (1970); or (2) if the jury has possibly been unduly influenced by the evidence received concerning the improperly joined charges, then the only remaining procedure is for the defendant to move for a mistrial.

State v. Sanchez, 14 Or. App. 234, 511 P.2d 1231 (1973)

The potential significance is this: we can assume the state will attempt to elide the improper joinder demurrer by alleging language justifying joinder in the indictment. If they do so haphazardly for counts that should not be joined, but put in enough language to defeat the demurrer pre-trial, the Sanchez case suggests two remedies when it's apparent -- once the state has rested -- that the counts should not have been properly joined.