Demurrer has 3 Rs.

According to Black’s Law Dictionary, demur is a verb. It’s also a noun: demurrer. When I demur, it means I’m taking a swing at the charge filed by the prosecutor, hoping that the charge is somehow flawed in such a way that the prosecution cannot proceed. We don’t file demurrers very often in Douglas County, because the prosecutors here generally know what they’re doing, and can fix their mistakes if they mess up. Why should that make a difference? Well, generally, the remedy for a demurrer is a do-over. Sorry prosecutor! You messed up that charge, so we’ll just let you fix it and start over again! The timelines on demurrers are a bit fuzzy (they have to be done at arraignment, which occurs pretty early in the process, or “at such time that may be provided”, which I guess means whenever the judge feels like it, except for the middle of a trial.)

To put it succinctly : Filing a demurrer is usually incorrect because most things that are technically flawed and thus vulnerable to a demurrer can be fixed by the prosecutor. On the other hand, if you wait until the trial is underway, THEN your motion on a technicality, such as a motion for judgment of acquittal, may very well be a non-fixable problem for the prosecutor.

Here’s the thing: Just because filing a demurrer is normally incorrect doesn’t mean it’s always incorrect. Sometimes, cases are fatally flawed. Sometimes the grand jury voted the first time around to indict someone, but it was a really close vote, and if it had to go through the process again, the grand jury would toss the case out. Sometimes the prosecutor hates a case and is just looking for a reason to dump it. I think the fear in the criminal defense community is that if you demur to something, that crazy prosecutor is just going to re-evaluate their case and come back with three times as many charges. That might happen. But it could also be a good way to get a better deal than you would if you hadn’t filed anything.

And yes, I am filing a demurrer this week. Hopefully it does what I need it to. And if you’re a lawyer and you need to file a demurrer on your own, go read some articles by Ryan Scott on the topic over at Oregon Library of Defense.

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