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Putting Together a Severance Argument in Light of the New Factors
by: 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.")
- See also State v. Garrett, 300 Or App 671, 455 P3d 979 (2019). When, in response, the state relies on cases like State v. Buyes, 280 Or App 564, 382 P3d 562 (2016), really scrutinize whether all aspects of Buyes (particularly the temporal component) are still good law in light of Garrett.
(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).
- "As a result, there was a substantial risk that the jury would use the counts involving A to supply proof of sexual purpose as to the counts involving M, thereby interfering with defendant’s efforts to defend against the charges involving M. In other words, defendant offered a case-specific argument that M’s allegations were weaker from both an evidentiary perspective and as to the nature of the charged criminal activity. Defendant’s arguments were thus neither abstract nor generalized but grounded in the perceived risk that the jury in this case might impermissibly use the evidence of defendant’s abuse of A to supply the mental state required on the charges against M."
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.
- Joinder of offenses “under ORS 132.560(1)(b)(C) is appropriate if "the joined counts [or charges] are logically related, and there is a large area of overlapping proof" between them. State v. Dewhitt, 276 Or App 373, 383, 368 P.3d 27 (2016), quoting State v. Johnson, 199 Or App 305, 111 P3d 784 (2005).
(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:
- When we say that one set of charges is weaker than the other set of charges, what we mean is that there is something missing from one set of charges that makes the state's case harder to prove. When, because of joinder, the jury might use the other case to fill in whatever is missing, that is substantial prejudice.
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 Is
by: Ryan Scott • September 21, 2025 • no comments
OEC 106 provides:
- "When part of an act, declaration, conversation or writing is given in evidence by one party, the whole on the same subject, where otherwise admissible, may at that time be inquired into by the other; when a letter is
- read, the answer may at that time be given; and when a detached act, declaration, conversation or writing is given in evidence, any other act, declaration, conversation or writing which is necessary to make it
- understood may at that time also be given in evidence."
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:
- “They’re saying I shot the sheriff! I didn’t shoot the sheriff!”
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 Constitution
by: 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:
- (2) If the accusatory instrument is an indictment, that it does not substantially conform to the requirements of ORS 132.510 to 132.560, 135.713, 135.715, 135.717 to 135.737, 135.740 and 135.743;
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:
- "We understand the state’s concern about the difficulty of making a pretrial election in “resident child abuser” case. “Other jurisdictions have dealt with the ‘undifferentiated evidence’ dilemma in child sexual abuse cases by treating a single alleged crime as a continuing or aggregated offense, or by enacting ‘continuing child sexual abuse’ statutes.” State v. Ashkins, 357 Or 642, 657 n 11, 357 P3d 490 (2015).7 To the extent there is a problem of providing notice sufficient to prepare a defense in such cases, the solution likely lies with the legislature, not the courts."
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:
- Although the state should “not be forced to make a choice when it cannot intelligently do so,” an election must “afford the defendant sufficient time, after the choice has been made, to defend himself properly.” State v. Lee, 202 Or 592, 607, 276 P2d 946 (1954). Courts “should compel an election when it appears that, if the application is denied, the defendant will be * * * prevented from properly making his defense.” State v. Keelen, 103 Or 172, 179-80, 203 P 306 (1922).
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.
