The Silver Lining in McDaniel
by: Jmerrithew • July 27, 2012 • no comments
On Wednesday, the Court of Appeals issued its decision in State v. Jesse McDaniel, affirming Mr. McDaniel's conviction for Possession of a Schedule I Controlled Substance. Mr. McDaniel relied on the defense of entrapment, and despite the hard work of trial counsel Gabe Biello and appellate counsel Morgen Daniels, this was an uphill battle from the start. Entrapment is a hard defense to win on, as amply explained in the opinion itself. In that regard, the decision is not particularly surprising or noteworthy.
However, in the second paragraph of the opinion, the Court of Appeals has (finally) given us an absolute gem. There, the Court explains how the allocation of the burden of proof in an entrapment case interacts with a defendant's motion for judgment of acquittal. It is noteworthy not for the entrapment defense, which is rarely used successfully, but for the defense of self-defense (and defense of others and property) which functions in the exact same way. Here it is, excluding the citations:
Where a defendant raises the defense of entrapment, "the state has the burden of disproving the defense beyond a reasonable doubt." In reviewing the trial court's denial of defendant's motion for judgment of acquittal, we view the evidence in the light most favorable to the state to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Because of the allocation to the state of the burden of proof on defendant's entrapment defense, that inquiry includes the additional question of whether a rational trier of fact could have found that the state disproved the defense beyond a reasonable doubt.
(emphasis added). This may seem self-evident, but there was never a case on point until now. I, for one, have made the argument and lost multiple times. I'm sure I'm not the only one.
Consider also the way in which these defenses are raised: "'Raised by the defendant' means either notice in writing to the state before commencement of trial or affirmative evidence by a defense witness in the defendant's case in chief." ORS 161.055(3). Thus, simply by filing notice of intent to rely on the defense, you can require the state to disprove it in their own case in chief or lose at MJOA. While I have heard defense attorneys suggest that this was the state of the law in the past, I have also heard judges and DAs poo-poo the idea as wishful thinking. Now it plainly is the law.
The other important lesson to learn from this case is to remember, in those cases where you do present affirmative evidence of the defense, to re-raise your JOA after the state has rested (either after rebuttal or your case in chief).
