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Putting Together a Severance Argument in Light of the New Factorsby: 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.")
(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).
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.
(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:
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. The Rule of Completeness Isn't What You Think It Isby: Ryan Scott • September 21, 2025 • no comments OEC 106 provides:
Case law has made it plain that OEC 106 is not an independent basis for admission. It is generally concerned with timing. So if the state seeks to offer a portion of record -- say, a medical record -- then the defendant can offer the rest of it immediately, rather than in the defendant's case-in-chief, assuming the evidence code would allow the defendant to do so. What this means in practice is that the state will offer a portion of defendant's statement, because it is a non-hearsay statement of a party opponent, but the defendant will not be able to offer the rest of it because the defendant has no independent basis for admitting the statement. So as Brett Allin recently wrote in a petition for review, this rule would allow the state to offer the bolded part of the following statement, but not allow the defendant to offer the rest:
That is a brilliant hypothetical because it makes the importance of the issue immediately and viscerally understandable. This week, the Oregon Supreme Court granted Brett's petition for review. The case is State v. Hagenno. The case is set for oral argument March 18, 2026, at 9:00 a.m., at Willamette University College of Law, Salem, Oregon. Brett's argument is not that OEC 106 is a separate basis for admission. Rather, the rest of the statement is necessary for a non-hearsay purpose: context. It is necessary to understand the portion of the statement the state has offered. I like this argument. It's a simpler and more straightforward argument than the one I have long proposed in this type of situation, which was this: offering part of the statement misleads the jury, so unless the state offers the whole statement, it should be excluded under OEC 403. This issue comes up a lot so be ready to preserve this argument when it does. The Statutory Basis for an Antoine Demurrer is Better (for now) than the Constitutionby: 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:
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:
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:
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. Next 20 Articles Case Reviews
Oregon Court of Appeals, October 1st, 2025by: Rankin Johnson RIGHT TO SPEECH AND EXPRESSION - Content-based restrictions Oregon Supreme Court, September 25th, 2025by: Rankin Johnson KIDNAPPING - Asportation JOINDER, SEVERANCE, AND ELECTION - Showing required for severance Oregon Court of Appeals, September 24th, 2025by: Rankin Johnson FIREARM OFFENSES - Body armor MUNICIPAL AND JUSTICE COURTS - Jurisdiction DEFENDANT'S STATEMENTS - Compelling circumstances DEFENDANT'S STATEMENTS - Context of defendant's statements Oregon Court of Appeals, September 17th, 2025by: Rankin Johnson HEARSAY AND CONFRONTATION - Unavailability Oregon Court of Appeals, September 10th, 2025by: Rankin Johnson CRIMINAL MISTREATMENT - Sufficiency JOINDER, SEVERANCE, AND ELECTION - Discretion to order election ASSAULT - Risk of death MENS REA - Mental states and specific elements SEARCH AND SEIZURE - Scope of search SEARCH AND SEIZURE - Particularity APPEAL AND REVIEW - Preservation _________________________ |
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