Blog:Main/Easy Argument to Defeat Amendment by Interlineation - Revision history

Ryan@ryanscottlaw.com at 02:48, April 17, 2016

2016-04-17T02:48:36Z

Ryan@ryanscottlaw.com at 14:10, April 8, 2016

2016-04-08T14:10:35Z

Ryan@ryanscottlaw.com: Created page with "Prosecutors around the state are attempting to defeat the [http://www.publications.ojd.state.or.us/docs/A152933.pdf ''Poston''] demurrer by amending the indictment by interlin..."

2016-04-07T19:26:52Z

Created page with "Prosecutors around the state are attempting to defeat the [http://www.publications.ojd.state.or.us/docs/A152933.pdf ''Poston''] demurrer by amending the indictment by interlin..."

New page

Prosecutors around the state are attempting to defeat the [http://www.publications.ojd.state.or.us/docs/A152933.pdf ''Poston''] demurrer by amending the indictment by interlineation, rather than going back to Grand Jury.

Here's the simple, easy argument why the state is not allowed to do so.

Under ''State v. Wimber'', the OSC has held that substantive amendments to an indictment require resubmission to the Grand Jury. Matters of form do not.

ORS 135.715 [Effect of Nonprejudicial Defects in the Accusatory Instrument] states:

:No accusatory instrument is insufficient, nor can the trial, judgment or other proceedings thereon be affected, by reason of a defect or imperfection in a matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.

Self-evidently, the ''Poston'' Court held that remedy for the failure to include the proper joinder language was to grant the demurrer. By definition, then, ''Poston'' held that it was NOT a "defect or imperfection in a matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits."

Ergo, adding that language to an indictment is a change of substance, not form, and cannot be done by interlineation. If it wasn't, the ''Poston'' holding would have been the exact opposite of what it was.
{{wl-publish: 2016-04-07 12:26:52 -0700 | Ryan:Ryan Scott }}

@@ Line 9: / Line 9: @@
 :No accusatory instrument is insufficient, nor can the trial, judgment or other proceedings thereon be affected, by reason of a defect or imperfection in a matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.
-Self-evidently, the ''Poston'' Court held that remedy for the failure to include the proper joinder language was to grant the demurrer.  By definition, then, ''Poston'' held that failing to include the joinder language was NOT a "defect or imperfection in a matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits."
+The ''Poston'' Court held that remedy for the failure to include the proper joinder language was to grant the demurrer.  Self-evidently, ''Poston'' held that failing to include the joinder language was NOT a "defect or imperfection in a matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits."
 Ergo, adding that language to an indictment is a change of substance, not form, and cannot be done by interlineation.  If it wasn't, the ''Poston'' holding would have been the exact opposite of what it was.
 {{wl-publish: 2016-04-07 12:26:52 -0700 | Ryan:Ryan  Scott  }}