Oregon Court of Appeals 10-13-10

by: Abassos • October 12, 2010 • no comments

Read the full article for details about the following new cases:

• Misstatement of Evidence in Rebuttal
• Parole - Sex Offender Conditions

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Misstatement of Evidence in Rebuttal===

The fact that the prosecutor in a DUII trial misstated evidence in rebuttal was unlikely to prejudice the jury because (1) there was enough evidence to support a conviction and (2) the judge instructed the jury that the lawyer's statements were argument not evidence. The DA told the jury that the intoxilyzer only errs to the low side and that a person with a .10 on the intoxilyzer could have been a .4 in reality. In an interesting side note, when defendant objected to the latter statement, the judge ordered the defense attorney not to object any more during the state's argument. Thus, the appellate court rules, defendant is deemed to have preserved objections he didn't actually make. State v. Rosenbohm

Parole - Sex Offender Conditions

The parole board is allowed to impose sex offender conditions for convictions that didn't involve any allegation of sexual impropriety where there is evidence that it's necessary to protect the community. Here, defendant was convicted for a drug crime but he had a 22 year old conviction for a sex crime. The age of the conviction weakens the inference of future risk. But the fact that the crimes occurred over a four year period when defendant was an adult and the victim a child strengthens the inference of future risk. Thus, the old conviction was enough to support the parole board's decision. Simpson v. Board of Parole