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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. An Easy Demurrer (Failure to Register as a Sex Offender)by: Ryan Scott • October 4, 2024 • no comments Prosecutors insist that cases should be routinely joined because it promotes judicial efficiency. But the real reason is that it prejudices the defendant. It may not prejudice the defendant enough to merit severance, but it always increases the chance the jury would decide the case on something other than the merits of the state's argument. Whenever possible, however, a defense attorney should seek to punish the state by demurring to an indictment that is obviously improperly joined. After all, the prosecutor isn't really inconvenienced by severance of charges that shouldn't have been joined in the first place. But if they have to go back to Grand Jury because the indictment was dismissed, maybe they won't be quite so unfairly aggressive next time. What follows is an example where the indictment will always be subject to a demurrer. If you have a client that has at least two charges in one indictment, and one of the charges is "failure to register as a sex offender," that indictment is vulnerable. Why? Because there is no legal way that a failure to register charge is every properly joined with any charge other than another failure to register. So if your client is pulled over, and a gun or drugs are found in the car, and they didn't register on their birthday six months earlier, if all those charges are in one indictment, they're improperly joined. Or maybe your client is charged with a rape in the third degree, and, oops, he didn't register from a prior conviction for rape in the third degree, putting the new R3 and a FTR on the same indictment is not legal. Wait, you say! Maybe that's a motion to sever, but I've got that R3/FTR indictment in front of me and the indictment alleges Poston language ("same or similar" or "common scheme or plan", so how can I get past that? Here's the answer: Although “it usually is sufficient for the state to allege the basis for joinder by using the language of the joinder statute,” Warren, 364 Or at 120, the alleged basis for joinder must “be possible, given the offenses and facts alleged.” Warren, 364 Or at 122. And there is no theory where FTR is "same or similar" to anything other than another FTR. (See Garrett and Gialoretto for the analysis of same or similar.) And what possible scheme or plan could be furthered by failing to register? Proper joinder is legally impossible. File that demurrer. Make them go back to Grand Jury or make you a better offer. Next 20 Articles Case Reviews
Oregon Court of Appeals, January 8th, 2025by: Rankin Johnson CLOSING ARGUMENT - Burden shifting by state SEX CRIMES - Merger DUII - Diversion JOINDER, SEVERANCE, AND ELECTION - Review Oregon Court of Appeals, January 2nd, 2025by: Rankin Johnson TRIAL PROCEDURE - Burden shifting by state SEARCH AND SEIZURE - Pro RESTITUTION - Economic damages SEARCH AND SEIZURE - Abandonment EXPUNGEMENT - Basis for denial Oregon Court of Appeals, December 18th, 2024by: Rankin Johnson DUII - Field Sobriety Tests UNLAWFUL USE OF A VEHICLE - Driver's license suspension SEARCH AND SEIZURE - Permission to enter Oregon Court of Appeals, December 11th, 2024by: Rankin Johnson DEFENDANT'S STATEMENTS - Voluntariness EVIDENCE - Authentication _________________________ |
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