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Sexual Penetration and Contaminated Memoriesby: Ryan Scott • February 1, 2025 • no comments "[The] phenomenon of false memory, and the circumstances that can contribute to the creation of a false memory, are complex and beyond the experience of ordinary jurors. . . ." State v. Dye, 286 Or App 626 (2017) There are a number of attorneys who are skeptical of the benefits of hiring a memory expert in a child sex abuse case (or any other case for that matter). Often, these attorneys -- many of whom are in their fifties or sixties -- have never actually consulted with a memory expert. By consult, I don't mean a five minute conversation but actually hiring them to review the case. They will also tell you that the prosecutors they've talked to will claim they've never lost a case in which the defense hired a memory expert. They will also tell you, contrary to the quote from State v. Dye above, that jurors understand the idea of suggestion and don't need an expert to point it out. I'm not going to get into a whole long argument why I think these attorneys are wrong and are committing malpractice when they fail to have a meaningful consultation with a memory expert when there is any possibility the accusations are based on a false memory. But I do want to give one very narrow, very specific example that comes up frequently in sexual penetration cases. Since sexual penetration for a child under 12 carries a mandatory 25 year sentence, the punishment is far more severe than a sexual abuse I, which is "only" 75 months. → continue reading...Chess Moves: Bench Trials, Severance Motions and OEC 404by: Ryan Scott • January 9, 2025 • no comments Yesterday, the Court of Appeals issued an opinion in which the primary issue was the trial court's denial of a motion to sever. The Court never reached the merits because they found any error in denying severance was harmless. So this post really isn't about severance at all, but about how judges will try to immunize their bad rulings when the defendant waives jury, and the most effective way to stop them from doing so. → continue reading...Challenging Language from Standard Instruction 1005by: Ryan Scott • October 30, 2024 • no comments In every criminal trial in Oregon for decades, the jury has likely been told the following: "Generally, the testimony of any witness whom you believe is sufficient to prove any fact in dispute." You should object to that language and, if the judge does not want to strike it outright, ask for this alternative: "Generally, the testimony of any witness whom you believe is sufficient to prove any fact in dispute. If the fact is necessary to proving an element of the crime, you must believe the witness beyond a reasonable doubt with regard to that fact." The basis for the objection is this. As currently constructed, the instruction – or at least a reasonable interpretation of it -- undermines the requirement that the state prove its case beyond a reasonable doubt. It would permit a juror to find against the defendant when it believes the complainant on a material element of the crime, but does not believe the complainant beyond a reasonable doubt. See State v. Purrier, 265 Or App 618, 621, 336 P3d 574 (2014)(state’s argument “incorrectly describe[ed] the jury’s task as choosing which of two versions of events the jury finds more believable” and was confusing and misleading because it “omit[ed] the possibility, among others, that the jury would find the state’s version more plausible, yet not be convinced beyond a reasonable doubt.”) The instruction is also unduly slanted towards the state, which is the only party that must actually prove any fact in dispute (assuming no affirmative defense on the part of the defendant.) See State v Martin, 290 Or App 851, 417 P3d 505 (2018)(prohibiting even legally correct jury instruction when it was unduly slanted in favor of one party.) Similarly, because only one side has the burden in this case, telling the jury what it takes to find a fact in dispute has been proven is an inappropriate comment on the evidence.
State v. Hayward, 327 Or 397 (1998) The alternative instruction because it is a correct statement of the law and would ameliorate the risk of its misuse. Because the standard instruction relates to a factual finding, a juror may not recognize how it relates to the "beyond a reasonable doubt" instruction, which relates to a finding of guilt. This amendment ameliorates that problem somewhat. Next 20 Articles Case Reviews
Oregon Court of Appeals, February 12th, 2025by: Rankin Johnson EVIDENCE - Other bad acts CLOSING ARGUMENT - Burden shifting by state CLOSING ARGUMENT - Burden shifting by state MENTAL STATES - Mental states and specific elements Oregon Court of Appeals, February 5th, 2025by: Rankin Johnson FIREARM OFFENSES - Second Amendment challenges Oregon Supreme Court, January 30th, 2025by: Rankin Johnson SENTENCING - Proportionality EVIDENCE - Hearsay Oregon Court of Appeals, January 29th, 2025by: Rankin Johnson MENS REA - Mental states and specific elements PROBATION AND OTHER SUPERVISION - Expiration SENTENCING - Restitution Oregon Court of Appeals, January 23rd, 2025by: Rankin Johnson CONTEMPT - Willfulness SEARCH AND SEIZURE - Expectation of privacy EVIDENCE - Other bad acts MENS REA - Mental states and specific elements _________________________ |
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