Improper Joinder Demurrer

This wikilog article is a draft, it was not published yet.

by: Ryan • November 4, 2015 • no comments

In one of my earlier posts today, I quoted today's opinion in St v Crummett.

Once charges are properly joined in a single charging instrument, either party may move to sever the charges if the joinder will “substantially prejudice” the party. ORS 132.560(3). [Bold added.]

A party may also challenge the joinder of charges on the ground that joinder is not permissible, that is, that the charges do not satisfy the statutory criteria for joinder in the first instance. See State v. Thompson, 328 Or 248, 256-57, 971 P2d 879, cert den, 527 US 1042 (1999). Defendant here does not contend that the charges were not properly joined."

So the next question is: what vehicle does the defendant use to argue that the counts are improperly joined? After all, the statutes only discuss severance as a remedy when the counts are properly joined.

You probably already know the answer: a demurrer.

135.630 Grounds of demurrer. The defendant may demur to the accusatory instrument when it appears upon the face thereof:

(1) If the accusatory instrument is an indictment, that the grand jury by which it was found had no legal authority to inquire into the crime charged because the same is not triable within the county;

(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;

And one of the statutes listed above, ORS 132.560, is the joinder statute.

If a demurrer is the remedy, then as a matter of law, the court cannot consider extrinsic facts. The basis for joinder must be in the four corners of the indictment. That could mean copycat counts (i.e., sex abuse I x 42) or it could mean that the state, for example, alleges "as part of the same act and transaction." But if none of the options apply, then the vehicle with which to remedy the flaw in the indictment is a demurrer.

The state will argue -- based on a misreading of some dicta in a Supreme Court opinion -- that the burden is on the defendant to prove that two counts in an indictment could never be possibly joined. So even though you can't look at extrinsic facts to determine if two counts are properly joined, the state wants to be able to imagine facts that could support joinder. And that's aside from the fac that it shifts the burden to the defense when the burden to prove an exception to a rule on indictments is on the state. State v. Nistler

The COA has a number of cases in which this issue was argued under advisement. The oldest is more than 18 months since it was submitted on the briefs.