The Latest, Greatest Co-Defendant Demurrer

This wikilog article is a draft, it was not published yet.

by: Ryan • March 24, 2014 • no comments

The co-defendant demurrer can be filed by either co-defendant. All you need is an indictment that charges one co-defendant with at least one count that isn't charged against the other co-defendant. I see this on the Multnomah County AM docket all the time (where the co-defendants are grouped together at the top of the docket).

I think the demurrer makes a pretty compelling case that such an indictment is improper. The case is based on both the current language of the joinder statute and some legislative history. My only request is that you read the demurrer before dismissing it out of hand. And you can get a copy just by e-mailing me at ryan@scotthugginslaw.com.

Here's part of the demurrer:

In sum, the legislative history from the 1983 amendments indicates that the prosecutors were now permitted to charge defendants with different crimes out of the same act or transaction. Not much discussion centered on the joinder statute, ORS 132.560; however, it is important to note that 1983’s ORS 132.560 was only a “same act or transaction” test, with no mention of the “same or similar character” or “common scheme or plan” language that is now in the statute. While the ORS 136.060 language appears to “entitle” the state to join defendants tried for different crimes, the legislative intent is clear that they wanted to limit the scope to ‘of the same act and transaction’ situations and maintain a defendant’s unequivocal right to have a separate trial when the defendant requests it.

However, the statute that gave the state the ability to charge co-defendants with different felonies in the same indictment was repealed just four years later by a ballot initiative. In 1986, The Crime Victims’ Bill of Rights passed. This was a vote initiative (Ballot Measure 10) that changed many criminal laws to be more inclusive of victims in trial procedures. Included in the 18 amendments was ORS 136.060. This measure changed the statute, eliminating the language that permitted co-defendants charged with different crimes to be jointly indicted.