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Justice Bushong Highlights A Few Improper Closing Argumentsby: 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 Tentativeby: 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:
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:
Quick list of sentencing arguments for most murder convictionsby: Ryan Scott • May 2, 2025 • no comments 1. Any lengthy sentence imposed consecutively to the murder sentence is arguably unconstitutional under Article I, section 16, because the defendant does not begin serving that sentence until after parole board has found they are likely to be rehabilitated soon. A lengthy sentence that you only serve after essentially being rehabilitated is insane and, almost by definition, disproportionate. 2. The gun minimum must be imposed on the primary offense (assuming it's attached to the primary offense). This is because there is no statutory authority for deferring the gun minimum to a later count. So no more imposing the gun minimum on the felon in possession and running it consecutively to murder w/ a firearm. 3. UUW merges with Murder w/ a firearm. All of the arguments can be found on the Library of Defense, and of course I will always provide them to anyone who asks. Next 20 Articles Case Reviews
Oregon Court of Appeals, April 9th, 2025by: 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 Oregon Court of Appeals, April 2nd, 2025by: Rankin Johnson SEARCH AND SEIZURE - Exploitation SEARCH AND SEIZURE - Recordings WITNESSES - Cross-examination INEFFECTIVE ASSISTANCE OF COUNSEL - Right to substitute counsel RIGHT TO COUNSEL - Deliberate intrusion Oregon Court of Appeals, March 26th, 2025by: Rankin Johnson DEFENDANT'S STATEMENTS - Invocation of right to counsel _________________________ |
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