Is A Defendant Entitled to a Jury Trial On Restitution?

by: Ryan Scott • June 13, 2025 • no comments

Today, the OSC issued a press release that announced one case it was granting review on, and a number of cases it was not. Among those cases where the court was not granting review, individual justices either said they would have granted review or, more likely, concurred in the denial of review but felt the issue was worth addressing in a future case.

In other words, the individual justices were alerting lawyers -- defense lawyers in particular -- of issues they would like to see raised in future cases.

One of those cases was State v. Anne. Justices DeHoog and James both concurred in the denial of review "but observed that the petition raised an important legal issue that the Court should consider in an appropriate case." Do they say what that issue is? Nope, I had to look up the case to find out what the issue was. And let me tell you, it's a doozy.

This is a paragraph taken from the petition for review:

The issue on appeal is whether defendant was denied the right to a jury trial on the question of restitution. Defendant argued for the first time on appeal that, under Article I, section 17, of the Oregon Constitution, she had the right to have restitution determined by a jury. Restitution is the equivalent of a “civil case” that triggers the right to a jury trial. Accordingly, the trial court erred when it failed to honor that right under the Oregon Constitution. Further, if this court holds that restitution is not the equivalent of a “civil case,” then it is a criminal proceeding for which the Sixth Amendment to the United States Constitution guarantees that right.

This not only tells us what the issue was but also gives a pretty clear idea of why none of the justices wanted to grant review. It was argued "for the first time on appeal."

I happen to know the issue has been preserved in a case on appeal (I was not involved in any way, in case you think I'm being coy.) Still waiting on the state's brief, which is due relatively soon. But there are so many issues in that case, no guarantee the COA will reach it.

So, when can you preserve it? Certainly any time you've lost a trial and the state is seeking restitution. Does it matter if the amount the state is seeking is likely reliable? Nope. The only question is whether the issue was submitted to the jury (and, before then, whether the state gave notice of an intent to submit it to the jury.)

How many trials result in a restitution award in any give week? Ten? Twenty? No reason we can't have this preserved a hundred times before autumn.