OCDLA Library of Defense - Latest Case Reviews

Blog The Shadow Challenge by: Ryan Scott • May 6, 2025 • no comments “Shadow Challenge” is a type of motion to controvert, and the name comes from The Hollow Men by T.S. Eliot: Between the idea And the reality Between the motion And the act Falls the Shadow. Police get a search warrant. When they do, there is probable cause that evidence relevant to the crime will be found in the location to be searched. But there's many a slip between the cup and the lip. If the police – after they have obtained a search warrant, but prior to its execution – obtain information that undermines the probable cause requirement, the Fourth Amendment to the United States Constitution obligates them to return to the magistrate for a new finding of probable cause. United States v. Marin Buitrago, 734 F2d 889 (2d Cir 1984). See also, Washington v Reichenbach, 153 Wash 2d 126, 101 P3d 80 (2004); United States v. Bowling, 900 F2d 926 (6th Cir 1990). Justice Bushong Highlights A Few Improper Closing Arguments by: Ryan Scott • May 5, 2025 • no comments In State v. Mendez Perez, 373 Or 591 (2025), the Oregon Supreme Court looked at whether a handful of arguments made by the prosecutor in closing/rebuttal merited reversal, when the defendant did not object to those arguments. The court concluded the various statements did not merit reversal. In his dissent, Justice Bushong, joined by Justice James, suggested that the court's blanket approach to "plain error" may not be appropriate in every situation where an error is unpreserved. That discussion, which is highly valuable, is something for appellate attorneys to consider, and I don't plan to get into it here. Justice Bushong goes on and highlights some -- but not all -- of arguments that are inappropriate and objectionable when made by the prosecutor. His list starts on page 617 of the opinion. It is a good list, and I highly recommend reviewing it before your next trial. Note also that Justice Bushong recommends a law review article -- Michael D. Cicchini, Combating Prosecutorial Misconduct in Closing Arguments, 70 Okla L Rev 887 (2018) -- for additional examples of inappropriate argument. Every MIL Ruling Is Tentative by: Ryan Scott • May 4, 2025 • no comments Recently, a prosecutor conceded a motion in limine that the defense had filed to keep out some of the state's evidence. He agreed it should be excluded, but he wanted it on the record that it might become admissible if the defense opens the door. Sure, I said. As far as I'm concerned, that's always true. Every MiL ruling is tentative. If you lose a pretrial motion in limine to exclude a certain part of the state's evidence, you need to be prepared to raise it again, depending on how the evidence comes in. As the Oregon Supreme Court recently reiterated in State v. Akins: To the extent that defendant’s OEC 403 challenge in this court is based on how the evidence came in at trial, not on the trial court’s pretrial ruling on defendant’s motion in limine,that challenge is unpreserved for appellate review because defendant did not assert an OEC 403 objection when the testimony was offered and received at trial, as noted above. See Pitt, 352 Or at 574 (stating that, after the trial court has denied a pretrial motion to exclude evidence, parties should make “the same or other objections, if war-ranted, when a party offers the evidence during trial”); Perry, 347 Or at 118 (stating that, even though the trial court had denied a defendant’s pretrial motion to exclude evidence, “it was defendant’s responsibility to point out to the trial court” any additional objections to the evidence when it was offered at trial). Because our decision in this case is based on the record at the time of the motion in limine, it does not preclude trial courts in other cases from assessing whether such testimony is inadmissible under OEC 403 in the con-text in which the testimony may be offered at trial. So for example, if the judge allows in expert testimony about "delayed disclosure" before trial starts, you'll want to renew the objection if the expert happens to say that such disclosures go up after the middle school health class has done a segment on abuse, and the complainant in your case only came forward at the same time. Akins again: Expert testimony connecting the expert’s explanation of delayed reporting to the specific reasons offered by the victim for the delay could be inadmissible as vouching. In other instances, the probative value of such testimony may be substantially outweighed by the danger of unfair prejudice to the defendant, making the evidence inadmissible under OEC 403 or at least requiring an appropriate limiting instruction. Next 20 Articles Case Reviews Oregon Court of Appeals, May 7th, 2025 by: Rankin Johnson CLOSING ARGUMENT - Improper argument by prosecutor DEFENDANT'S STATEMENTS - Belated Miranda warnings HEARSAY AND CONFRONTATION - Sex-abuse hearsay exception CLOSING ARGUMENT - Improper argument by prosecutor → read the full summaries... Oregon Supreme Court, May 1st, 2025 by: Rankin Johnson DEFENDANT'S STATEMENTS - Uncharged offenses CLOSING ARGUMENT - Improper argument by prosecutor → read the full summaries... Oregon Supreme Court, April 17th, 2025 by: Rankin Johnson EVIDENCE - Delayed reporting → read the full summaries... Oregon Court of Appeals, April 16th, 2025 by: Rankin Johnson CLOSING ARGUMENT - Waiver → read the full summaries... Oregon Supreme Court, April 10th, 2025 by: Rankin Johnson RIGHT TO COUNSEL - Colloquy and waiver → read the full summaries... Oregon Court of Appeals, April 9th, 2025 by: Rankin Johnson EVIDENCE - Hearsay SENTENCING - Sentence following reversal EXPUNGEMENT - Unpaid restitution CLOSING ARGUMENT - Improper argument by prosecutor PROBATION CONDITIONS - Sex-offender treatment APPEAL AND REVIEW - Harmlessness → read the full summaries... _________________________

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