Blog:Main/Exceptions and Burdens: an improper joinder demurrer analysis - Revision history

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Ryan@ryanscottlaw.com at 16:00, May 14, 2013

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Ryan@ryanscottlaw.com at 03:44, May 14, 2013

2013-05-14T03:44:49Z

Ryan@ryanscottlaw.com: Created page with "I want to ask you something about how things are done in your county. Let's assume the defendant is charged with felony theft by deception. Let's further assume the theft oc..."

2013-05-14T03:37:03Z

Created page with "I want to ask you something about how things are done in your county. Let's assume the defendant is charged with felony theft by deception. Let's further assume the theft oc..."

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I want to ask you something about how things are done in your county. Let's assume the defendant is charged with felony theft by deception. Let's further assume the theft occurred four years ago (5/13/2009), but it wasn't indicted until today.

The statute of limitations for felony theft is 3 years. ORS 131.125(6)(a). So the indictment is subject to a challenge for being outside the statute of limitations? But there is an "exception" to the three year statute of limitation, and it is under sub (7) of the same statute. It says:

:(a) If the offense has as a material element either fraud or the breach of a fiduciary obligation, prosecution may be commenced within one year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is not a party to the offense, but in no case shall the period of limitation otherwise applicable be extended by more than three years;

<summary>So here is my question: when the indictment is filed 4 years after the incident occurred, does the indictment in your county -- in order to survive the challenge -- allege that the discovery of the offense was discovered by the aggrieved party with the past year? That is, does the indictment allege the language necessary to justify the "exception" to the 3 year statute of limitations?</summary>

Or, does the indictment remain silent and merely allege the incident date? In that situation, if the defendant challenges the demurrer, would the state say in response, "we don't have to allege the facts giving rise to the exception. Rather, the burden is on the defendant to show that the exception doesn't apply?"

A similar question can be asked regarding sex offenses which might appear to be past the statute of limitations, but have not yet run because the victim has not, for example, reached the age of 30 yet. Does the prosecutor in your county allege something which would satisfy the exception to the statute of limitations or does the prosecutor argue it is the defendant's burden to prove the exception doesn't apply?

In my experience, the state alleges the facts necessary to support the exception to the statute of limitations. Is your experience the same?

Why do I ask? Because the above examples serve as a very effective analog to the improper joinder demurrer.

Just as the statute of limitations for felony Theft is three years, the presumptive indictment is only allowed to contain a single count. Sound crazy? ORS 132.560 says: "(1) A charging instrument '''must charge but one offense, and in one form only'''. . . ."

But wait, what did I leave out and replace with that ellipsis? Well, I left out the "exception" to one count rule. The full sentence says:

:(1) A charging instrument must charge but one offense, and in one form only, except that:

(a) Where the offense may be committed by the use of different means, the charging instrument may allege the means in the alternative.

(b) Two or more offenses may be charged in the same charging instrument in a separate count for each offense if the offenses charged are alleged to have been committed by the same person or persons and are:

(A) Of the same or similar character;

(B) Based on the same act or transaction; or

(C) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

As with the statute of limitations, the key word is "except." The default is one thing (3 years SOL, a single count in the indictment), and the exception is something else (6 year statute of limitations for felony Theft by deception in some circumstances/more than one count in the indictment).

So my question is this: if the prosecutor in your county feels it is necessary to add the language supporting the exception to the default statute of limitations, why wouldn't she similarly need to allege the language (same act or transaction or common scheme or plan) that justifies the exception to the one-count-in-the-indictment rule?

This comes up when you've filed the improper joinder demurrer. Let's assume the crimes are Criminal Mischief and Unlawful Use of a Weapon. These two crimes may be from the same criminal episode or they may not be. They may be part of a common scheme or plan but maybe not. But the indictment is silent. It doesn't allege either of those things.

So you file the demurrer, and because it's a demurrer, the trial court can't consider extraneous evidence. For example, the prosecutor isn't allowed to offer facts to support that these two crimes come from the same criminal episode, unless those "facts" are in the indictment.

The prosecutor agrees that everyone is limited to the language in the indictment, but the prosecutor argues, "but wait, it's the defendant's burden to prove the exception to the one-count-in-the-indictment rule doesn't apply. It's not my job to allege that the exception exists."

Well, this isn't the worst argument in the world. Defendant's demurrer, then defendant's burden. But it would also mean the demurrer could never win, because the indictment is never going to say "these counts are improperly joined." And if the indictment doesn't say that, if it's silent, and you can't go beyond the four corners of the indictment, the defendant would never be able to prove improper joinder. So for the prosecutor to be correct, the legislature must have created a remedy (a demurrer) that could never, ever win.

But getting back to the SOL examples above, if the state feels the need to allege the facts supporting those exceptions, why wouldn't the same rule apply to the improper joinder demurrer? We don't -- at least I've never seen it -- expect the defendant to prove (while limited to the four corner of the indictment) that no exception would apply, when on its face the indictment appears outside the SOL. Similarly, when the indictment, on its fact, violates the no-more-than-one-count-in-the-indictment rule, we shouldn't expect the defendant to prove something he can never prove. The trial court should dismiss the indictment.

What this means, practically speaking, is that you should file the improper joinder demurrer even when the facts would support joinder, if the indictment is nevertheless deficient because it doesn't have the necessary language in it. You'd do the same thing for an indictment that appeared to violate the SOL, even if you believe there were facts to support the extended SOL. Why? Because if you lose the demurrer, it might win at the COA, and at worst your client gets a new trial. At best, it is now too late to reindict.

← Older revision		Revision as of 19:04, August 9, 2013
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	What this means, practically speaking, is that you should file the improper joinder demurrer even when the facts might support joinder, as long as the indictment itself is deficient because it doesn't have the necessary language in it. You'd do the same thing for an indictment that appeared to violate the SOL, even if you believe there were facts to support the extended SOL. Why? Because if you lose the demurrer in front of the trial court, it might win at the COA. In that situation, at worst your client gets a new trial. At best, it is now too late to reindict.		What this means, practically speaking, is that you should file the improper joinder demurrer even when the facts might support joinder, as long as the indictment itself is deficient because it doesn't have the necessary language in it. You'd do the same thing for an indictment that appeared to violate the SOL, even if you believe there were facts to support the extended SOL. Why? Because if you lose the demurrer in front of the trial court, it might win at the COA. In that situation, at worst your client gets a new trial. At best, it is now too late to reindict.
−	{{wl-publish: 2013-05-13 20:44:49 -0700 \| Ryan }}	+	{{wl-publish: 2013-05-13 20:44:49 -0700 \| Ryan:Ryan Scott }}

@@ Line 5: / Line 5: @@
 :(a) If the offense has as a material element either fraud or the breach of a fiduciary obligation, prosecution may be commenced within one year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is not a party to the offense, but in no case shall the period of limitation otherwise applicable be extended by more than three years;
-<summary>So here is my question:  when the indictment is filed 4 years after the incident occurred, does the indictment in your county -- in order to survive the challenge -- allege that the discovery of the offense was discovered by the aggrieved party with the past year?  That is, does the indictment allege the language necessary to justify the "exception" to the 3 year statute of limitations?</summary>
+<summary>So here is my question:  when the indictment is filed 4 years after the incident occurred, does the indictment in your county -- in order to survive the facial challenge -- allege that the discovery of the offense was discovered by the aggrieved party with the past year?  That is, does the indictment allege the language necessary to apply the "exception" to the 3 year statute of limitations?</summary>
-Or, does the indictment remain silent and merely allege the incident date?  In that situation, if the defendant challenges the demurrer, would the state say in response, "we don't have to allege the facts giving rise to the exception.  Rather, the burden is on the defendant to show that the exception doesn't apply?"
+Or, does the indictment remain silent and merely allege the incident date?  In that situation, if the defendant challenges via a demurrer, would the state say in response, "we don't have to allege the facts giving rise to the exception.  Rather, the burden is on the defendant to show that the exception doesn't apply?"
 A similar question can be asked regarding sex offenses which might appear to be past the statute of limitations, but have not yet run because the victim has not, for example, reached the age of 30.  Does the prosecutor in your county allege something which would satisfy the ''exception'' to the statute of limitations or does the prosecutor argue it is the defendant's burden to prove the exception doesn't apply?
-In my experience, the state alleges the facts necessary to support the exception to the statute of limitations.  Is your experience the same?
+In my experience, the state in fact alleges the facts necessary to support the exception to the statute of limitations.  Is your experience the same?
 Why do I ask?  Because the above examples serve as very effective analogs to the improper joinder demurrer.

@@ Line 44: / Line 44: @@
 Well, this isn't the worst argument in the world.  Defendant's demurrer, then defendant's burden. It has a certain symmetry.  But it would also mean the demurrer could never win, because the indictment is never going to say "these counts are improperly joined."  And if the indictment doesn't say that, if it's silent, and you can't go beyond the four corners of the indictment, the defendant would never be able to prove improper joinder.  So for the prosecutor to be correct, the legislature must have created a remedy (a demurrer) that could never, ever prevail.
-But getting back to the SOL examples above, if the state feels the need to allege in the indictment the facts supporting the exceptions to the default SOL, why wouldn't the same rule apply to the improper joinder demurrer?  We don't -- at least I've never seen it -- expect the defendant to prove (while simultaneously limited to the four corner of the indictment) that no exception to the SOL would apply.   Similarly, when the indictment, on its face, violates the no-more-than-one-count-in-the-indictment rule, we shouldn't expect the defendant to prove something he can never prove as a matter of law.   Rather, the trial court should grant the demurrer and dismiss the indictment.
+I submit, instead, that it's the state's burden, not yours, to justify the exceptions.  Getting back to the SOL examples above, if the state feels the need to allege in the indictment the facts supporting the exceptions to the default SOL, why wouldn't the same rule apply to the improper joinder demurrer?  We don't -- at least I've never seen it -- expect the defendant to prove (while simultaneously limited to the four corner of the indictment) that no exception to the SOL would apply.   Similarly, when the indictment, on its face, violates the no-more-than-one-count-in-the-indictment rule, we shouldn't expect the defendant to prove something he can never prove as a matter of law.   Rather, the trial court should grant the demurrer and dismiss the indictment.
 What this means, practically speaking, is that you should file the improper joinder demurrer even when the facts might support joinder, as long as the indictment itself is deficient because it doesn't have the necessary language in it.  You'd do the same thing for an indictment that appeared to violate the SOL, even if you believe there were facts to support the extended SOL.  Why?  Because if you lose the demurrer in front of the trial court, it might win at the COA. In that situation, at worst your client gets a new trial.  At best, it is now too late to reindict.
 {{wl-publish: 2013-05-13 20:44:49 -0700 | Ryan }}

@@ Line 17: / Line 17: @@
 Just as the statute of limitations for felony Theft is three years, the presumptive indictment is only allowed to contain a single count.  Sound crazy?  ORS 132.560 says:  "(1) A charging instrument '''must charge but one offense, and in one form only'''. . . ."
-But wait, what did I leave out and replace with that ellipsis?  Well, I left out the "exception" to one count rule.   The full sentence says:
+But wait, what did I leave out and replace with that ellipsis?  Well, I left out the "exception" to one-count-per-indictment rule.   The full sentence says:
 :(1) A charging instrument must charge but one offense, and in one form only, except that:

@@ Line 20: / Line 20: @@
 :(1) A charging instrument must charge but one offense, and in one form only, except that:
        (b) Two or more offenses may be charged in the same charging instrument
-in a separate count for each offense if the offenses charged are alleged to
+          in a separate count for each offense if the offenses charged are alleged to
-have been committed by the same person or persons and are:
+          have been committed by the same person or persons and are:
        (A) Of the same or similar character;
@@ Line 33: / Line 30: @@
        (C) Based on two or more acts or transactions connected together or
-constituting parts of a common scheme or plan.
+          constituting parts of a common scheme or plan.
 As with the statute of limitations, the key word is "except."  The default is one thing (3 years SOL, a single count in the indictment), and the exception is something else (6 year statute of limitations for felony Theft by deception in some circumstances/mult-count indictment if same act or transaction, common scheme or plan, etc.).

@@ Line 21: / Line 21: @@
 :(1) A charging instrument must charge but one offense, and in one form only, except that:
-       (a) Where the offense may be committed by the use of different means, the charging instrument may allege the means in the alternative.
+       (a) Where the offense may be committed by the use of different means,
-       (b) Two or more offenses may be charged in the same charging instrument in a separate count for each offense if the offenses charged are alleged to have been committed by the same person or persons and are:
+       (b) Two or more offenses may be charged in the same charging instrument
        (A) Of the same or similar character;
@@ Line 29: / Line 32: @@
        (B) Based on the same act or transaction; or
-       (C) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
+       (C) Based on two or more acts or transactions connected together or
 As with the statute of limitations, the key word is "except."  The default is one thing (3 years SOL, a single count in the indictment), and the exception is something else (6 year statute of limitations for felony Theft by deception in some circumstances/mult-count indictment if same act or transaction, common scheme or plan, etc.).

@@ Line 9: / Line 9: @@
 Or, does the indictment remain silent and merely allege the incident date?  In that situation, if the defendant challenges the demurrer, would the state say in response, "we don't have to allege the facts giving rise to the exception.  Rather, the burden is on the defendant to show that the exception doesn't apply?"
-A similar question can be asked regarding sex offenses which might appear to be past the statute of limitations, but have not yet run because the victim has not, for example, reached the age of 30 yet.  Does the prosecutor in your county allege something which would satisfy the exception to the statute of limitations or does the prosecutor argue it is the defendant's burden to prove the exception doesn't apply?
+A similar question can be asked regarding sex offenses which might appear to be past the statute of limitations, but have not yet run because the victim has not, for example, reached the age of 30.  Does the prosecutor in your county allege something which would satisfy the ''exception'' to the statute of limitations or does the prosecutor argue it is the defendant's burden to prove the exception doesn't apply?
 In my experience, the state alleges the facts necessary to support the exception to the statute of limitations.  Is your experience the same?
-Why do I ask?  Because the above examples serve as a very effective analog to the improper joinder demurrer.
+Why do I ask?  Because the above examples serve as very effective analogs to the improper joinder demurrer.
 Just as the statute of limitations for felony Theft is three years, the presumptive indictment is only allowed to contain a single count.  Sound crazy?  ORS 132.560 says:  "(1) A charging instrument '''must charge but one offense, and in one form only'''. . . ."
@@ Line 31: / Line 31: @@
        (C) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
-As with the statute of limitations, the key word is "except."  The default is one thing (3 years SOL, a single count in the indictment), and the exception is something else (6 year statute of limitations for felony Theft by deception in some circumstances/more than one count in the indictment).
+As with the statute of limitations, the key word is "except."  The default is one thing (3 years SOL, a single count in the indictment), and the exception is something else (6 year statute of limitations for felony Theft by deception in some circumstances/mult-count indictment if same act or transaction, common scheme or plan, etc.).
-So my question is this:  if the prosecutor in your county feels it is necessary to add the language supporting the exception to the default statute of limitations, why wouldn't she similarly need to allege the language (same act or transaction or common scheme or plan) that justifies the exception to the one-count-in-the-indictment rule?
+So my question is this:  if the prosecutor in your county feels it is necessary to add the language supporting the ''exception'' to the default statute of limitations, why wouldn't she similarly need to allege the language (same act or transaction or common scheme or plan) that justifies the ''exception'' to the only-one-count-in-the-indictment rule?
 This comes up when you've filed the improper joinder demurrer.  Let's assume the crimes are Criminal Mischief and Unlawful Use of a Weapon.  These two crimes may be from the same criminal episode or they may not be.  They may be part of a common scheme or plan but maybe not.  But the indictment is silent.  It doesn't allege either of those things.
-So you file the demurrer, and because it's a demurrer, the trial court can't consider extraneous evidence.  For example, the prosecutor isn't allowed to offer facts to support that these two crimes come from the same criminal episode, unless those "facts" are in the indictment.
+So you file the demurrer, and because it's a demurrer, the trial court can't consider extrinsic evidence.  For example, the prosecutor isn't allowed to offer facts that show that these two crimes come from the same criminal episode, unless those "facts" are contained in the indictment.
-The prosecutor agrees that everyone is limited to the language in the indictment, but the prosecutor argues, "but wait, it's the defendant's burden to prove the exception to the one-count-in-the-indictment rule doesn't apply.  It's not my job to allege that the exception exists."
+The prosecutor agrees that everyone is limited to the language in the indictment, but the prosecutor argues, "but wait, it's the defendant's burden to prove no exception to the only-one-count-in-the-indictment rule applies.  It's not my burden to allege in the indictment that the exception exists."
-Well, this isn't the worst argument in the world.  Defendant's demurrer, then defendant's burden.  But it would also mean the demurrer could never win, because the indictment is never going to say "these counts are improperly joined."  And if the indictment doesn't say that, if it's silent, and you can't go beyond the four corners of the indictment, the defendant would never be able to prove improper joinder.  So for the prosecutor to be correct, the legislature must have created a remedy (a demurrer) that could never, ever win.
+Well, this isn't the worst argument in the world.  Defendant's demurrer, then defendant's burden. It has a certain symmetry.  But it would also mean the demurrer could never win, because the indictment is never going to say "these counts are improperly joined."  And if the indictment doesn't say that, if it's silent, and you can't go beyond the four corners of the indictment, the defendant would never be able to prove improper joinder.  So for the prosecutor to be correct, the legislature must have created a remedy (a demurrer) that could never, ever prevail.
-But getting back to the SOL examples above, if the state feels the need to allege the facts supporting those exceptions, why wouldn't the same rule apply to the improper joinder demurrer?  We don't -- at least I've never seen it -- expect the defendant to prove (while limited to the four corner of the indictment) that no exception would apply, when on its face the indictment appears outside the SOL.  Similarly, when the indictment, on its fact, violates the no-more-than-one-count-in-the-indictment rule, we shouldn't expect the defendant to prove something he can never prove.   The trial court should dismiss the indictment.
+But getting back to the SOL examples above, if the state feels the need to allege in the indictment the facts supporting the exceptions to the default SOL, why wouldn't the same rule apply to the improper joinder demurrer?  We don't -- at least I've never seen it -- expect the defendant to prove (while simultaneously limited to the four corner of the indictment) that no exception to the SOL would apply.   Similarly, when the indictment, on its face, violates the no-more-than-one-count-in-the-indictment rule, we shouldn't expect the defendant to prove something he can never prove as a matter of law.   Rather, the trial court should grant the demurrer and dismiss the indictment.
-What this means, practically speaking, is that you should file the improper joinder demurrer even when the facts would support joinder, if the indictment is nevertheless deficient because it doesn't have the necessary language in it.  You'd do the same thing for an indictment that appeared to violate the SOL, even if you believe there were facts to support the extended SOL.  Why?  Because if you lose the demurrer, it might win at the COA, and at worst your client gets a new trial.  At best, it is now too late to reindict.
+What this means, practically speaking, is that you should file the improper joinder demurrer even when the facts might support joinder, as long as the indictment itself is deficient because it doesn't have the necessary language in it.  You'd do the same thing for an indictment that appeared to violate the SOL, even if you believe there were facts to support the extended SOL.  Why?  Because if you lose the demurrer in front of the trial court, it might win at the COA. In that situation, at worst your client gets a new trial.  At best, it is now too late to reindict.