§ 8.5 Challenges to Accusatory Instruments

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 8.5 CHALLENGES TO ACCUSATORY INSTRUMENTS

"No departure from the form or mode prescribed by law, error or mistake in any criminal pleading, action or proceeding renders it invalid, unless it has prejudiced the defendant in respect to a substantial right." ORS 131.035. Similarly, "[n]o accusatory instrument is insufficient, nor can the trial, judgment or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits." ORS 135.715.

Other statutes, such as ORS 132.550 and ORS 133.015 (see § 8.2-2(a) to § 8.2-2(c)), suggest the types of defects that may prejudice the defendant. Similarly, ORS 133.007 (applicable to informations and complaints) and ORS 132.540 (applicable to indictments) offer criteria to gauge the sufficiency of an accusatory instrument. Namely, an accusatory instrument is sufficient if it can be understood from it that

(1) the defendant is named, or if the name of the defendant cannot be discovered, that the defendant is described by a fictitious name, with the statement that the real name of the defendant is unknown to the grand jury or complainant;

(2) the offense was committed within the jurisdiction of the court, except when, as provided by law, the act, though done outside of the county in which the court is held, is triable within the county in which the court is held; and

(3) the offense was committed at some time before the finding of the indictment, or filing of the information or complaint, and within the time limited by law for the commencement of the action therefor.

ORS 132.540(1); ORS 133.007(1).

There are several ways to challenge the legitimacy of an accusatory instrument, which vary according to the defect alleged. A defendant may make a motion under ORS 135.470 to dismiss an accusatory instrument on grounds of double jeopardy. See chapter 13 (former jeopardy). Similarly, a defendant may demur to the accusatory instrument (see § 8.5-1), or enter a motion to set aside an indictment based on irregularities of grand jury procedure (see § 8.5-2).

§ 8.5-1 Demurrer to an Accusatory Instrument

A demurrer challenges the facial sufficiency of an accusatory instrument. ORS 135.630. Therefore, it is error for a trial court to consider facts that are not alleged in the accusatory instrument as a basis for sustaining a demurrer. State v. Durant, 122 Or App 380, 382, 857 P2d 891 (1993); State v. Reed, 116 Or App 58, 59, 840 P2d 723 (1992).

NOTE

In State v. Gyenes, 121 Or App 208, 211, 855 P2d 642 (1993) (internal citations omitted), the court of appeals stated that, although generally a demurrer must be based on allegations found on the face of an indictment, "a defendant [may] challenge the constitutionality of a statute by way of a demurrer, if the assertion is that the statute is overbroad. . . . That is true, even if the indictment does not allege, on its face, that the defendant engaged in the allegedly constitutionally protected conduct." The court subsequently labeled that observation dictum and declined an invitation from the parties to give similar treatment to a trial court's ruling by demurrer to an as-applied constitutional challenge. State v. Cervantes, 232 Or App 567, 574-77, 223 P3d 425 (2009). Thus, the continued viability of the exception noted in Gyenes is questionable.

By statute, the defendant may demur to an accusatory instrument for any of the following reasons that appear on the face of the instrument:

(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 [see chapter 7 (jurisdiction and venue)];

(2) If the accusatory instrument is an indictment, that it does not substantially conform to the requirements of ORS 132.510 to 132.560, ORS 135.713, [ORS] 135.715, [ORS] 135.717 to 135.737, [ORS] 135.740, and [ORS] 135.743 [see chapter 7; § 8.5-1(c) (time limitations in prosecutions), § 8.7-1 to § 8.7-4 (joinder of charges and defendants)];

(3) That the accusatory instrument charges more than one offense not separately stated;

(4) That the facts stated do not constitute an offense;

(5) That the accusatory instrument contains matter which, if true, would constitute a legal justification or excuse of the offense charged or other legal bar to the action; or

(6) That the accusatory instrument is not definite and certain.

ORS 135.630.

Each count of a multiple-count accusatory instrument must allege that the offense charged was committed in the designated county, or it is subject to demurrer. ORS 132.550(5); State v. Dunn, 99 Or App 519, 522-23, 783 P2d 29 (1989), rev den, 309 Or 522 (1990).

An indictment may not contain allegations that the defendant has been convicted of a crime that might subject the defendant to an enhanced penalty, unless the prior conviction is a material element of the offense (such as the offense of felon in possession of a firearm). ORS 132.540(2); ORS 133.007(2); State v. Allen, 30 Or App 275, 279, 567 P2d 552 (1977).

Crimes must be separately stated in indictments. ORS 132.550(4); ORS 135.630(3). In State v. Hall, 108 Or App 12, 814 P2d 172, rev den, 312 Or 151 (1991), the court held that it was improper to plead, in one count, that the defendant forcibly raped a female under 12 years of age, because first-degree rape may be committed either by use of force or by having intercourse with a female under age 12. However, the defendant's failure to demur to the indictment waived that argument. The trial court properly struck the "use of force" allegation pursuant to the prosecutor's motion during trial. Furthermore, a long-standing principle of criminal pleadings is that the accusatory instrument may plead in the conjunctive ("X and Y"), but the prosecution may prove in the disjunctive ("either X or Y"). State v. King, 84 Or App 165, 172, 733 P2d...