The Post-Poston Demurrer

Latest revision as of 17:22, September 27, 2026

I was surprised to discover that I haven't written a blog post on the post-Poston demurrer in years. It is absolutely something that should be in your arsenal. We don't know how viable it will be at the COA, but we should know soon.

A bit of history. Prior to State v. Poston, prosecutors never thought multi-count indictments had to include the basis for joining multiple counts. (Marion County appeared to be the exception to this rule.)

My experience with promoting what I then called the "improper joinder demurrer" made me see two things about defense attorneys. First, only a small percentage will ever file a motion that presents an issue of first impression*. And I mean small. Maybe five percent of defense attorneys. And two, even after it wins at the Court of Appeals and the clients of other lawyers are getting their cases entirely dismissed on appeal, 95% of those same lawyers who didn't file the improper joinder demurrer won't learn from their experience. The next time a novel, but legally sound, issue/motion/argument is handed to them on a silver platter (and a new one comes up every couple of years), they won't litigate that one either. (By the way, this is not to say that these attorneys are bad lawyers, though some of them are. It's to simply point out that they have no interest in being great lawyers.)

I also learned something about judges from the experience. Small county judges are far more likely to grant a motion of first impression than big county judges. I often heard about small county judges granting the improper joinder demurrer, but I don't think a single one granted it in Multnomah County.

The Poston opinions from both the COA and the Oregon Supreme Court held that joinder language needed to be put in the indictment. And ironically, by winning the argument, defense lawyers no longer had a way of getting indictments dismissed. because prosecutors immediately started putting the language in the indictment or amending indictments to conform to the Poston holding. But prosecutors are really lazy or they really, really want to keep the basis for joinder as ambiguous as possible, so they soon adopted the following practince, putting the following, fairly typical joinder language at the bottom of every multi-count indictment:

These counts are part of the same act or transaction, connected together by two or more acts or transactions with the other counts of this charging instrument, and of the same or similar character.

Note two things. This language tells you absolutely nothing and it is inherently contradictory. (Either they are part of the same act and transaction or connected together by two or more transactions, but they can't be both.)

I think it is appropriate to file a post-Poston demurrer to this or similar language. It still fails to do what the law expects Poston language to do: inform the defendant of the theory of joining each count with every other count.

Before I get to the law on this, it is worth noting that the only time the COA has written substantively** on the post-Poston demurrer, it lost. State v. Anner, 335 Or App 388 (2024). A lot of people may have thought Anner foreclosed the issue, but it really didn't. At least I don't think it did, and that is why I think the COA has had a case called State v. Sims under advisement since early December, 2025. (Sims was not my case, just FYI.) Maybe I'm wrong, but it shouldn't take 10 months to say, "this issue loses under Anner."

I'm not going to lay out the entire argument here, but I'm happy to supply a sample motion to anyone who asks. But I will say this:

State v. Warren, 364 Or 105, 118, 430 P3d 1036 (2018) stated: "Thus, Huennekens indicates that, in order for an indictment to survive a demurrer based on improper joinder, two requirements must be met: (1) the indictment must allege the basis for joinder, and (2) that basis must be possible, given the offenses and facts alleged." [Bold added.]

Often, a multi-count indictment will fail one of those prongs. Sometimes the state will put counts in the indictment where joinder is not at all possible. https://scholar.google.com/scholar_case?case=17574397236390680608&q=brown+severance&hl=en&as_sdt=4,38 But in most cases, the multi-count indictment that alleges crimes from different days fails to allege "the" basis for joinder.

I think it is entirely reasonable that that language means something more than "we put all possible bases for joinder in the indictment and one of them must be the correct basis for joinder."

• Technically, it wasn't an issue of first impression. There was case law from decades earlier that supported the demurrer.

• • The post-Poston demurrer did result in the defendant winning on appeal and getting all his charges reversed. https://scholar.google.com/scholar_case?case=4932498355481776542&q=demurrer+levitt&hl=en&as_sdt=4,38 But it was for more of a procedural reason it won.