Is Restitution a Jury Question?
by: Ryan • July 15, 2013 • no comments
At this post, Steve Kalar highlights the possibility that the 9th Circuit will take en banc review to decide whether restitution is a jury question under the federal constitution.
The Oregon Supreme Court has had under advisement the same question under the Oregon Constitution. Oral argument was a few months ago, so it's probable true that no opinion is imminent but maybe we'll see one in early 2014. (The exception would be if Justice Walters is writing. She is noticeably faster than her colleagues and certainly with no loss of quality.)
Note that if it is determined by either court to be a jury question, based on either constitution, the state would have to give notice, and, except for good cause, that notice would have to be provided to the defendant no later than two months after arraignment. I can imagine numerous situations which would qualify for good cause, but the important thing is that notice must given at some point. I stress this because, if we ever prevail on either constitutional argument, the state will argue harmless error as often as they can, that is, that the jury would have inevitably reached the same conclusion the trial court did. But if no notice was given, the question couldn't have been properly submitted to either the jury or the judge, and the error would be the type that could probably not be dodged by claiming harmlessness.
