Easy Argument to Defeat Amendment by Interlineation

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by: Ryan • April 7, 2016 • no comments

Prosecutors around the state are attempting to defeat the Poston demurrer by amending the indictment by interlineation, rather than going back to Grand Jury.

Here's the simple, easy argument why the state is not allowed to do so.

Under State v. Wimber, the OSC has held that substantive amendments to an indictment require resubmission to the Grand Jury. Matters of form do not.

ORS 135.715 [Effect of Nonprejudicial Defects in the Accusatory Instrument] states:

No accusatory instrument is insufficient, nor can the trial, judgment or other proceedings thereon be affected, by reason of a defect or imperfection in a matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.

The Poston Court held that remedy for the failure to include the proper joinder language was to grant the demurrer. Self-evidently, Poston held that failing to include the joinder language was NOT a "defect or imperfection in a matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits."

Ergo, adding that language to an indictment is a change of substance, not form, and cannot be done by interlineation. If it wasn't, the Poston holding would have been the exact opposite of what it was.