Mandatory Relief Upon a Case‑Specific Showing of Prejudice from Joinder: The Oregon Supreme Court’s Clarification of ORS 132.560(3) in State v. Hernandez‑Esteban

Introduction

In State v. Hernandez‑Esteban, 374 Or 300 (2025), the Oregon Supreme Court, sitting en banc, refines and strengthens the severance doctrine under ORS 132.560. The case involved a single indictment charging Francisco Javier Hernandez‑Esteban with multiple counts of sexual abuse involving two minor cousins, A and M. Before trial, the defense moved to sever the counts relating to M (two first-degree sexual abuse counts) from those relating to A (ten counts—eight first-degree and two third-degree sexual abuse), arguing that joinder would create substantial, case-specific prejudice. The trial court denied severance without crafting any remedial measures, the jury convicted on all counts involving A and one count involving M, and the court imposed a Measure 11 sentence on the M count.

On appeal, the Court of Appeals affirmed the denial of severance but held the Measure 11 sentence disproportionate under Article I, section 16. The Supreme Court allowed review of both sides’ petitions. It ultimately held that the trial court erred in denying the severance motion because the defendant established a case-specific theory of substantial prejudice under ORS 132.560(3). Crucially, the Court announced that once such prejudice is shown, trial courts must craft some remedy—severance or otherwise; doing nothing is not within the permissible range of discretion. The Court deemed the error harmless as to the counts involving A but not harmless as to the single M count of conviction, which it reversed and remanded for a new trial. Because of that disposition, the Court did not reach the sentencing disproportionality question. The Court also affirmed an evidentiary ruling under OEC 803(18a)(b) consistent with its recent decision in State v. Akins, 373 Or 476 (2025).

Summary of the Opinion

The Court clarifies the two-step framework for severance under ORS 132.560(3): (1) whether the moving party has shown case-specific “substantial prejudice” (a question of law); and (2) if so, what remedy to provide (a discretionary decision).
Key holding on remedy: When substantial prejudice from joinder is established, a trial court must provide some remedy. It has discretion in choosing the remedy, but it has no discretion to provide no remedy at all.
Case-specific prejudice established here: The defendant showed that material differences in the nature and evidentiary strength of the allegations concerning A and M created a substantial risk that jurors would use the stronger A evidence to “fill gaps” in the weaker M case—particularly to infer the required sexual purpose for M’s allegations. Expert testimony on “evidence spillover” and juror decision-making supported that case-specific showing.
Error and harmlessness: The denial of severance (and failure to provide any remedial measure) was legal error. The error was not harmless as to the M count of conviction; it was harmless as to the counts involving A, as the defendant framed prejudice arguments only as to M.
Other issues: The Court did not reach the Article I, section 16, disproportionality challenge to the Measure 11 sentence due to the remand. It affirmed the admission of A’s out-of-court statements under OEC 803(18a)(b), per State v. Akins (child declarant status is measured at the time the statements were made).

Detailed Analysis

1) Precedents and Statutory Framework

The decision operates within ORS 132.560’s joinder/severance architecture:

Default rule: “A charging instrument must charge but one offense, and in one form only” unless a statutory exception applies. ORS 132.560(1).
Permissive joinder when offenses are: (A) of the same or similar character; (B) based on the same act or transaction; or (C) based on acts or transactions connected together or constituting parts of a common scheme or plan. ORS 132.560(1)(b).
Even if joinder is proper, severance or “other relief” may be warranted if substantial prejudice is shown: “If it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses… the court may order an election or separate trials of counts or provide whatever other relief justice requires.” ORS 132.560(3).

The Court draws on and clarifies its recent severance jurisprudence:

State v. Delaney, 370 Or 554 (2022): A defendant must articulate a case-specific theory of substantial prejudice; generalized concerns about joinder are insufficient. The Court also traced ORS 132.560’s legislative history to the federal framework and identified three nonexclusive prejudice theories recognized by federal courts:
- Jury will confuse or cumulate the evidence;
- Defendant will be confounded in presenting conflicting defenses; and
- Jury will conclude guilt of one crime therefore guilt of others.
The Court reaffirmed that even “simple and distinct” proof does not eliminate prejudice risks like guilt-by-association. See also United States v. Foutz, 540 F2d 733 (4th Cir 1976).
State v. Miller, 327 Or 622 (1998): Substantial prejudice is evaluated case-by-case; categorical severance rules are disfavored. The prejudice inquiry is grounded in the record developed at the time the motion is decided.
State v. Thompson, 328 Or 248 (1999); State v. Barone, 329 Or 210 (1999); State v. Taylor, 364 Or 364 (2019): Generic claims (e.g., that joinder is “inflammatory” or risks character-based reasoning) do not suffice without linkage to case-specific facts.
Federal balancing of prejudice versus efficiency: The Court cited decisions noting that the justification for joinder is weaker when premised solely on “same or similar character.” See, e.g., United States v. Halper, 590 F2d 422, 430 (2d Cir 1978); United States v. Armstrong, 621 F2d 951, 954 (9th Cir 1980); United States v. Jawara, 474 F3d 565, 575 (9th Cir 2007).
Harmless error standard: Article VII (Amended), section 3 requires affirmance if there is “little likelihood that the error affected the verdict.” State v. Davis, 336 Or 19, 32 (2003).
Preservation: The Court took a pragmatic view, emphasizing whether the trial court would be “surprised” on appeal. See State v. Skotland, 372 Or 319, 329 (2024); State v. Walker, 350 Or 540, 550 (2011).
Hearsay exception: The Court reaffirmed State v. Akins, 373 Or 476 (2025), that OEC 803(18a)(b) applies if the declarant was a child when making the statements, even if an adult at trial.

2) The Court’s Legal Reasoning

a) Two distinct steps under ORS 132.560(3)

Step 1: Has the movant established “substantial prejudice” on a case-specific theory, supported by the record as it exists at the time of the motion? This is a question of law reviewed for errors of law.
Step 2: If substantial prejudice exists, what form of relief should be crafted? This is a discretionary determination, reviewed for abuse of discretion.

b) What counts as “case-specific” substantial prejudice?

The Court drew a line between generalized assertions about joinder and concrete, record-tethered risks in the case. Here, the defense did more than say “joinder increases conviction rates” or invoke generic character evidence concerns. Instead, the defense showed that:

The conduct and context of the allegations differed materially between A and M, even though the charges were formally similar.
Counts relating to A involved four years of near-nightly touching of intimate parts (over clothing), while M’s counts involved a single “peck” on the lips and a separate hug from behind during which M reported feeling the defendant’s penis—behavior that, for M, was not inherently sexual absent proof of sexual purpose.
Because both first- and third-degree sexual abuse require “sexual contact” (touching intimate parts for the purpose of arousing or gratifying sexual desire), the evidence against M presented a markedly different proof problem—establishing sexual purpose for ambiguous contact—compared to A.
The State’s proofs for A were significantly stronger and more voluminous than for M; the defense had viable, distinct defenses to M (e.g., mistake as to the nature of the contact, ambiguity in M’s pretrial statements).

The defense’s expert declaration and testimony (which the trial court accepted as qualifying on juror decision-making) concretely linked social-science concepts to the record:

“Evidence spillover” and “gap-filling”: Strong evidence on A would likely buoy weaker evidence on M, encouraging jurors to supply the required sexual purpose for M by reference to A’s allegations—i.e., “if he abused A, then the hug/kiss on M must have been sexual.”
Cognitive load and source confusion risks: Twelve counts, overlapping witnesses, and similar labels increase the risk of cumulation and misattribution; instructions may be insufficient to fully neutralize these effects in practice.

The Court accepted these as case-specific and record-supported reasons to believe that joinder posed “the kind of potential injury or harm that threatens the defendant’s interest in a fair trial.” This fits within Delaney’s categories (confusion/cumulation; inference of guilt in one case used to infer guilt in another).

c) The State’s reasons for joinder—and why they matter

The State relied on “same or similar character” and “common scheme or plan.” Recognizing federal skepticism about the utility of “same or similar” joinder (relative to prejudice), the Court observed that such joinders “often begin further up the scale, closer at the outset to the threshold of ‘substantial prejudice.’” Although the “common scheme or plan” rationale tempered that risk somewhat, the defense’s showing still surpassed the threshold.

d) The mandatory-remedy rule under ORS 132.560(3)

The Court’s most consequential doctrinal clarification concerns remedy. The text of ORS 132.560(3) says the court “may” order separate trials or other relief. The Court held that “may” governs the selection of remedy, not whether to provide relief at all once substantial prejudice is shown. When prejudice is established, “justice requires some relief.” A trial court has no discretion to do nothing. Here, the court denied the motion without severing or implementing any mitigating measures, which was legal error.

The Court did not decide whether particular alternative remedies (e.g., separate openings/closings, tailored limiting instructions, staged proof) would have sufficed because the trial court provided no remedy. The one limiting instruction given near the end of trial did not operate as a pretrial remedial measure responsive to the severance motion.

e) Harmless error and scope of reversal

Applying Article VII (Amended), section 3, the Court could not say there was “little likelihood” the error affected the M verdict, given the identified spillover risks and disparities; the M conviction was reversed and remanded for a new trial. Conversely, the Court affirmed the convictions on A because the defendant argued prejudice only as to M; on that framing, the error did not require reversal of counts involving A.

3) Practical Rules and Takeaways from Hernandez‑Esteban

Show, don’t generalize: A litigant seeking severance must ground “substantial prejudice” in the record as it exists at the time of the motion—pointing to differences in the nature of the allegations, proof burdens (e.g., sexual purpose), witness strength/coherence, and defense strategies that will be confounded by joinder.
“Same or similar character” joinders warrant heightened caution: While permissible, they often start closer to the prejudice line; the efficiency benefits are weaker, and the risk of improper propensity reasoning is greater.
“Simple and distinct” evidence does not end the inquiry: Even clear compartmentalization cannot fully mitigate guilt-by-association or “gap-filling” risks.
Mandatory remedy upon a proper showing: If substantial prejudice is established, the court must provide some remedy—severance, election, or “other relief justice requires.” Refusal to act is reversible error (subject to harmless error analysis).
Remedy menu (illustrative, not exhaustive):
- Separate trials of counts (complete severance);
- Election of counts;
- Structured trial management (e.g., separate openings/closings for count groups, staged proof);
- Early, repeated, and specific limiting instructions tailored to the identified prejudice;
- Other bespoke measures that reduce prejudice to the level inherent in permissible joinder.
Expert input can help but is not required: The Court treated expert testimony on juror cognition as permissible and potentially useful; however, counsel’s record-based proffer may suffice if it concretely links facts to recognized prejudice pathways.
Build a robust record: Include discovery-based proffers, highlight defense theories that will be confounded, and present practicable remedial alternatives so the trial court can exercise informed discretion.
Partial reversals are possible: Appellate courts may reverse only the counts most affected by the prejudice and affirm others.

Impact on Oregon Criminal Practice

For Trial Courts

Conduct the two-step analysis and make clear, on-the-record findings. If substantial prejudice is found, select and implement an appropriate remedy; an unreasoned denial is error.
Consider the State’s joinder rationale: Joinder based solely on “same or similar character” merits heightened vigilance and, where appropriate, more robust mitigation.
Tailor remedies to the identified prejudice: The goal is to reduce prejudice to that inherent in valid joinder. Creative trial management tools may suffice short of full severance in some cases.

For Prosecutors

Anticipate and preempt severance concerns by articulating a strong joinder theory (transactional connection or scheme/plan, not just “same or similar character”) and, if needed, proposing targeted mitigating measures.
Assess disparities in proof and the risk of spillover: Where one set of counts is significantly weaker or contextually different, be prepared to defend joinder with more than efficiency arguments.

For Defense Counsel

Develop a detailed, record-based proffer of prejudice: Explain how specific counts differ in nature and proof burdens (e.g., sexual purpose), how joinder confounds defenses, and why jurors are likely to cumulate or transfer proof across count clusters.
Offer alternatives: In addition to severance, propose concrete, practicable mitigation (e.g., separate openings/closings, sequencing of witnesses, customized instructions) so the court has options short of full severance.
Preservation: Make your theory and the available record clear; courts take a pragmatic view, but the best practice is to remove ambiguity at the hearing.

Systemic Effects

More rigorous severance adjudication: Trial courts must now either sever or impose an alternative remedy when presented with a well-supported prejudice showing.
Likely reduction in bare “same or similar character” joinders or increased use of prophylactic measures when such joinder is pursued.
Targeted appellate remedies: Expect partial reversals tailored to the counts actually affected by error.

Complex Concepts Simplified

Joinder vs. Severance:
- Joinder is the State’s initial decision to charge multiple offenses together under ORS 132.560(1)(b).
- Severance (or “other relief”) is the court’s corrective authority under ORS 132.560(3) when joinder causes substantial, case-specific prejudice.
Case-Specific “Substantial Prejudice”:
- Requires more than generalities; it must be grounded in the facts and record (e.g., differences in conduct, proof burdens, defense conflicts, witness disparities) showing a genuine risk to a fair trial.
“Same or Similar Character” vs. “Common Scheme or Plan”:
- Both can justify joinder, but the former is more amorphous and riskier; it provides weaker efficiency gains and heightens propensity risks.
Evidence Spillover/Guilt-by-Association:
- Jurors may (consciously or not) let strong evidence on one set of counts “fill gaps” in a weaker set, particularly where counts look similar on paper but differ in context and proof burdens.
“Sexual Contact” (ORS 163.305(5)):
- Requires touching of intimate parts for the purpose of sexual arousal/gratification. Ambiguous conduct (e.g., a brief kiss or hug) demands proof of sexual purpose—which can be improperly inferred from other counts if joined.
Harmless Error:
- An error requires reversal only if there is more than a “little likelihood” it affected the verdict; courts can reverse some counts and affirm others.
Measure 11 Disproportionality (not reached here):
- Article I, section 16 challenges remain live issues; this case did not resolve the Measure 11 question because the affected count was reversed on severance error.

Conclusion

Hernandez‑Esteban significantly advances Oregon’s severance doctrine in three ways. First, it underscores the rigor of the “case-specific” requirement: defendants (or the State) must show, from the pretrial record, how joinder threatens a fair trial in the particular case. Second, it clarifies that the State’s joinder rationale matters—joinder based solely on “same or similar character” often begins closer to the prejudice threshold, and courts must be especially vigilant about spillover and propensity risks. Third, and most importantly, it establishes a mandatory-remedial principle: once substantial prejudice is shown under ORS 132.560(3), trial courts must provide some remedy; declining to act is legal error.

Applying those principles, the Court held that the material disparities between allegations involving A and M, combined with the proof demands for “sexual contact,” created a concrete risk that the jury would impermissibly use stronger evidence regarding A to supply sexual purpose for the weaker, more ambiguous allegations regarding M. Because the trial court denied severance without any remedial measures, the Court reversed the M count of conviction and remanded for a new trial, while affirming the A convictions as unaffected on the arguments presented.

Going forward, Hernandez‑Esteban will reshape joinder practice in Oregon: prosecutors will need stronger joinder rationales and be prepared to accept targeted remedies; defense counsel will craft more detailed severance records, potentially aided by expert input; and trial courts must choose and implement a remedial path when substantial prejudice is shown. The decision thus offers clearer guardrails to preserve both the efficiency aims of joinder and the fairness guarantees at the heart of criminal adjudication.

Case: State v. Hernandez‑Esteban, 374 Or 300 (2025) — Oregon Supreme Court (en banc), opinion by James, J. Decided September 25, 2025.