The one thing you need to know about joinder (and that most of you don't)

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

by: Ryan • September 6, 2014 • no comments

It's a very simple rule. But I've seen so many appellate briefs which -- stuck with the record below -- perpetuate a gross misunderstanding of the law.

The rule is this:

If the counts aren't properly joined, you don't need to show substantial prejudice to sever.

Here's the statute, ORS 132.560:

If it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses under subsection (1) or (2) of this section, the court may order an election or separate trials of counts or provide whatever other relief justice requires.

Self-evidently, substantial prejudice only kicks in if the counts are joined under sub (1) or sub (2). If they aren't properly joined under either of those provisions, you don't need to show substantial prejudice. You either demur or you move to sever the counts as improperly joined.

Time after time, the prosecutor is getting away with joining counts that should never be joined, and defense attorneys are themselves making it way too hard to sever.