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, this 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 the defendant must put in all the discovery when filing the demurrer (or the equivalent) to show that the discovery itself does not provide definiteness and certainty to the allegations. But otherwise, the four corners of the indictment represent the scope of what the court can consider.

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.