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Why "First Time-Second Time" Elections Are Insufficient
by: Ryan Scott • December 19, 2025 • no comments
Assume defendant is charged with twenty crimes over the same five year period in the exact same location. Assume also that the crime happened on a weekly basis. Assume also that you cannot tell from the discovery or indictment the specific incidents that are the basis for crimes 1-20.
Because you keep up on the law, you file a demurrer/motion to require election. The state responds by electing in part as follow. Count 2 is the first time a specific crime occurred. Count 3 is the second time that same crime occurred. Is that enough to save the state? Here's an argument taken from an appellate brief why it is not.
- Counts 2-3 alleged the “first time” and the “second time”, respectively that rape was alleged to have occurred. They are also representative of the way the state had “elected” with regard to the other counts. Was that sufficient?
- The answer is no, for the obvious reason that “first time” or “second time” provide no factual detail that would be necessary to preparing a defense. The following hypothetical illustrates that point. Assume a “residential abuser” case that a complainant was able to provide more specificity than the usual detail in her forensic interview. She alleges that the first time the abuse occurred was right after the spring final exams of her sophomore year. But at trial, she testifies that the first time the abuse occurred was when she wanted to go to her sophomore homecoming. If the state were to elect one or the other, that would be the kind of specific detail that a defendant would have an opportunity to adequately defend against. But if the state’s only election pre-trial is “first time abuse occurred,” it still would not specify the allegation (final exams or homecoming) he has to defend against. “First time” provides no factual specifics that would allow a defendant to defend himself. In this case, because neither “first time” nor “second time” provided the necessary factual specificity, the election was inadequate and if the demurrer was not granted, the motion to elect should have been.
The Inherent Flaw in the State's Antoine Demurrer Argument
by: Ryan Scott • October 10, 2025 • no comments
On September 10, 2025, the Court of Appeals issued State v. Bravo-Chavez, 343 Or App 326 (2025). The issue in that case was whether the trial court abused its discretion in requiring the state to elect the specific acts upon which it would rely when notice was inadequate.
Although the standard of review was an abuse of discretion, the court appeared to hold that a remedy was required.
- 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).
Bravo-Chavez, 343 Or App at 339. [Bold added.]
I have long thought of the issue as one of constitutional magnitude. Specifically, "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 it is also statutory. 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”).
Moreover, the vehicle to address a statutory violation is 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;
The constitutional remedy is the same: a demurrer arguing that the indictment is not definite and certain.
A "definite and certain" demurrer is the odd man out in the world of demurrers. It appears that in addition to filing the demurrer, the defendant must put in all the discovery when filing the demurrer (or the equivalent) to show that the discovery itself does not provide the missing definiteness and certainty to the allegations. But once the defendant has demonstrated that the discovery does not cure the defect, the four corners of the indictment represent the scope of what the court can consider when deciding the demurrer.
And then, State v Antoine says that an alternative remedy is to make the prosecutor elect pre-trial, which would theoretically cure the lack of definiteness/certainty. However, not all elections are sufficient, and the minimal election in Bravo-Chavez did not accomplish that, and most of the charges were dismissed.
The State of Oregon has taken the position that a pre-trial election is not a proper remedy, up to and including the state's petition for review at the Supreme Court. And frankly I think they're spitting into the wind on that issue. But let's assume they are correct.
The state wants to argue that it should not be forced to elect when it cannot reasonably do so. And it wants to argue the courts should not grant the demurrer if the state cannot reasonably elect.
But here's the problem. The court should not be allowed to consider that argument/excuse when deciding the demurrer. The facts of the case are only considered to the extent they do or do not make the allegations definite and certain. The constellation of facts that purportedly show that the state cannot meet its statutory or constitutional requirements cannot be considered when evaluating a demurrer.
They could in theory be properly considered when evaluating the merits of a pre-trial election, but the state insists that a pre-trial election is not a permissible vehicle for addressing the problem.
So, in sum, I recommend a demurrer first, and an election in the alternative. Make clear the demurrer is under both the statute and the state and federal constitutions. And lastly, point out to the trial judge that the state's complaints of being unable to make the allegations more definite and certain -- to the extent it relies on facts outside the indictment -- is not a proper consideration when deciding the demurrer.
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.
