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The Court of Appeals released State v. Bravo-Chavez, 343 Or App 326 (2025) this week, re-affirming their approach to pre-trial election previously set out in the Antoine cases, as well as State v. Payne.

This was a big deal, because the AG's office had maintained the position that there was no such thing as "pre-trial" election, and if it did exist, it was entirely discretionary with the trial court. A number of trial court judges seemed to think the same. And I suspect that will continue to be the AG's position when they petition for review to the Supreme Court.

But for now, the Court of Appeals has made it clear that a defendant has "a right" to pre-trial notice, and that that right encompasses the right to have the state elect, when there is doubt about the exact nature of the charges.

The state argues that in “resident child abuser” cases, in which the victim typically testifies in a generic and undifferentiated way to repeated acts of abuse over a sub-stantial period of time, then “no reason exists to require” the state to make an election before the close of the state’s case-in-chief, and the state may not be able to make an intelligent election until after the victim testifies. But that argument ignores a defendant’s constitutional and statutory right to notice of the charges. The purpose of a motion for pretrial election is to ensure that defendants have notice “ ‘of the specific criminal acts that the state would prosecute at trial, in time for defendant[s] to tailor [their] defense to those specific incidents.’ ” Payne, 298 Or App at 421 (quoting Antoine I, 269 Or App at 79).

Bravo-Chavez, 343 Or App at 339.

The other key takeaway from Bravo-Chavez is that it may not be enough for prosecutors to elect by way of saying "first time" or "last time." It was not good enough in this case, but that may have had more to do with the fact that the trial judge did not think it was good enough, and such a finding was within the scope of her discretion. See fn 8.

I suspect the state will misread that last point. A defendant has a right to pre-trial election when there is a need for it. That's not within the discretion of the trial court. Whether the state's election, once made, is sufficient may be something the appellate courts will defer to the trial judge on. Or maybe not. We don't yet know.

In other words, in addition to the state arguing to the Supreme Court that Bravo-Chavez is wrong, the state is likely to insist that whether to require election is still discretionary with the judge. The state will argue that the trial judge exercised her discretion and it was upheld, but a judge could just as easily exercise their discretion the other way. That is not supported by the opinion. Adequate notice of what they have been charged with is a defendant's statutory and constitutional right. And because it is a right, a defendant only needs to show that they cannot tell the bases for the charges. A defendant does not have to show ahead of time how and why he is prejudiced by the denial of that right. Yes, there is still a harmless error analysis, but no affirmative duty to prove prejudice when a defendant has a right to the information.

The state may also argue that failing to demur to the indictment (that is, an Antoine demurrer) means the defendant has waived the right to an election. As the court noted, that was not raised in this case, but the state has made that argument in a case under advisement. See fn 6.

I would note that there are a handful of "election" cases that have already been briefed and argued at the COA, and it is very likely any ambiguity still left after Bravo-Chavez will be answered very quickly.

Finally, I want to express my admiration to those of you who were intelligent and aggressive enough to make these election arguments in the face of scoffing and dismissal from prosecutors and judges. Your clients were well-served.

How should I start jury selection? The Court of Appeals just told me—and maybe you, too.

Yes, you heard that right. As a new guy who graduated law school in 2023, I’ve often struggled with breaking the ice during jury selection—and doing so in a way that advances my trial theory.

Thankfully, the Court of Appeals (O’Connor, J.) just released an opinion that tells trial lawyers how to pick a jury. Specifically, the opinion in State v. Pugh suggests how we can set up voir dire to ensure the trial judge strikes unfriendly jurors. 341 Or. App. 435, 439–40 (2025). And, if the trial judge denies our for-cause challenges, how we can get the appellate court to reverse a guilty verdict.

Pugh reminds us to sprint to bias as soon as we stand up in front of the panel.

The State has charged your client with felon in possession of a firearm where their only felonies are old or non-violent crimes. File a pre-trial motion to dismiss. Demand a hearing. At that hearing, show the judge that your client is no longer a danger to others. Call witnesses to talk about how safe and law-abiding your client is. Bring in employment, treatment, and schooling records. Talk about the lack of subsequent violent criminal history. Because your client is no longer a danger, they still have a constitutional right to bear arms.

More follows below, including helpful federal and state cases to support your arguments.