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Oregon Supreme Court, November 17, 2021

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by: Rankin Johnson • November 18, 2021 • no comments


Summarized by Rankin Johnson, OCDLA

EVIDENCE - Doctrine of chances
Importance: 4/5

Evidence that defendant's DNA was found at each of four murder scenes was not cross-admissible. Affirmed on state's appeal.

Defendant was accused of the murder of four prostitutes. The four cases were severed for trial.

The state argued that the presence of defendant's DNA at each of four crime scenes was extremely unlikely to be the result of chance. But, the court explained, the doctrine of chances is not a theory of relevance, and accordingly is not a basis to admit the evidence. Although the state argued that the evidence tended to prove that defendant was present at each crime scene, the court held that such an argument constituted forbidden character evidence. Because the state asserted no non-character purpose for the evidence, the evidence was not relevant.

The court rejected defendant's argument that appellate jurisdiction for state's appeals from orders "suppressing" evidence did not include orders excluding evidence, because defendant did not establish that the current meaning of the term "suppression of evidence" was also the meaning when the relevant statute was adopted in 1969.

Garrett, concurring, observed that OEC 404(3) forbids the use of "character" evidence, but that the majority's analysis was directed toward "propensity" evidence and did not adequately consider the distinction.

State v. Jackson 368 Or 695 (November 17, 2021) (Nakamoto, Garrett concurring) (Multnomah County, Greenlick)