The Statutory Basis for an Antoine Demurrer is Better (for now) than the Constitution

by: Ryan Scott • September 18, 2025 • no comments

In thinking about Antoine demurrers, I've tended to focus on the right to adequate notice under the state and federal constitutions. A criminal defendant is entitled “to be informed of the nature and cause of the accusation[.]” US Const, Amend VI. See also Or Const, Art I, § 11 (providing that a criminal defendant has the right to “demand the nature and cause of the accusation against him”)

But last week's Bravo-Chavez decision has reoriented my approach to the issue, and in doing so, I believe my argument is going to be stronger.

Let's start with ORS 132.550(7) (providing that an indictment must include “[a] statement of the acts constituting the offense in ordinary and concise language * * * in such manner as to enable a person of common understanding to know what is intended”).

As it so happens, a violation of ORS 132.550(7) can be a basis for a demurrer. ORS 135.630 Grounds of demurrer. The defendant may demur to the accusatory instrument when it appears upon the face thereof:

(2) If the accusatory instrument is an indictment, that it does not substantially conform to the requirements of ORS 132.510 to 132.560, 135.713, 135.715, 135.717 to 135.737, 135.740 and 135.743;

See also everyone's favorite: State v. Poston, 277 Or App 137 (2016)

It is the statutory basis for a demurrer that prompted the Bravo-Chavez court to write the following:

"We understand the state’s concern about the difficulty of making a pretrial election in “resident child abuser” case. “Other jurisdictions have dealt with the ‘undifferentiated evidence’ dilemma in child sexual abuse cases by treating a single alleged crime as a continuing or aggregated offense, or by enacting ‘continuing child sexual abuse’ statutes.” State v. Ashkins, 357 Or 642, 657 n 11, 357 P3d 490 (2015).7 To the extent there is a problem of providing notice sufficient to prepare a defense in such cases, the solution likely lies with the legislature, not the courts."

That would seem to imply that the court believes the defendant is entitled to some form of relief even when the nature of the accusations make it impossible for the state to meaningfully elect. See also:

Although the state should “not be forced to make a choice when it cannot intelligently do so,” an election must “afford the defendant sufficient time, after the choice has been made, to defend himself properly.” State v. Lee, 202 Or 592, 607, 276 P2d 946 (1954). Courts “should compel an election when it appears that, if the application is denied, the defendant will be * * * prevented from properly making his defense.” State v. Keelen, 103 Or 172, 179-80, 203 P 306 (1922).

By proposing a legislative fix, the court does seem to suggest that the statutory requirements for notice are stricter than the constitutional ones.

Moreover, focusing on the statute -- and the fact defendant is entitled to a demurrer when the statute is violated -- might answer another question as well. In State v. Poston, the court agreed the denial of the demurrer was error, but it found it partially harmless and only granted relief on some of the counts. (Mr. Poston would subsequently achieve relief on the rest of the charges because of Ramos v. Louisiana.) But what the court did not do is require Mr. Poston to prove prejudice before finding the denial of the demurrer to be error.

Consequently, when you file a combination demurrer/motion to elect, and the state argues that even if the notice is statutorily inadequate, the defendant has not shown he is prejudiced, then you simply say "a defendant has no burden to demonstrate prejudice when the statutory remedy is a demurrer."

Now, the same may or may not be true for an election, so be sure to both demur and move for election.