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Another objection to UCrJI 1006by: Ryan Scott • January 8, 2026 • no comments In the preceding post, I argued why the standard jury instruction UCrJI 1006 violates the rules against commenting on the evidence and vouching, because it tells the jury that the witnesses have taken an oath to tell the truth, thereby drawing the jury's attention to a reason to believe those witnesses.. But that's not the only problem with UCrJI 1006. The standard UCrJI 1006 (“Evaluating Witness Testimony”) instruction states: The term witness includes every person who has testified under oath in this case. Every witness has taken an oath to tell the truth. In evaluating each witness’s testimony, however, you may consider such things as: (1) The manner in which the witness testifies. (2) The nature or quality of the witness’s testimony. (3) Evidence that contradicts the testimony of the witness. (4) Evidence concerning the bias, motives, or interest of the witness. [(5) Evidence concerning the character of the witness for truthfulness.] “[(6) Evidence that the witness has been convicted of a previous crime.].” (6) is also an impermissible comment on the evidence because it highlights a fact that the jury is supposed to consider for a particular purpose. Now this one gets more complicated strategically. Obviously, you only want to object when your client's conviction comes into evidence. But there are other considerations, including whether to ask for a limiting instruction that limits what purposes the jury can consider the prior conviction for. Objection to UCJI 1006by: Ryan Scott • January 3, 2026 • no comments The standard UCrJI 1006 (“Evaluating Witness Testimony”) instruction states:
In State v. Kessler, 254 Or 124, 458 P2d 432 (1969, the Oregon Supreme Court considered a challenge to the following instruction:
The Kessler court affirmed on the grounds that the instruction had provided ways in which the presumption could be overcome:
(Footnotes omitted). Accord State v. Dowell, 16 Or App 38, 39-40, 516 P2d 1305 (1973) (citing Kessler). Defendant cites Kessler because the state is likely to raise it in defense of the standard instruction. But not only does Kessler not specifically address the basis of the objection discussed below, but also Kessler has been impliedly overruled by multiple Oregon Supreme Court cases. Since 1969, the Supreme Court has repeatedly articulated and adhered to the rule that the court may not instruct the jury to draw an inference against the defendant that effectively shifts the burden of proof. State v. Hayward, 327 Or 397, 410, 963 P2d 667 (1998)(“It is well established that a trial court is not permitted to comment on the evidence.”); State v. Rainey, 298 Or 459, 467, 693 P2d 635 (1985) (holding that the court should not instruct the jury on “inferences” to be used against the accused because to do so “conflicts with the beyond-a-reasonable-doubt standard”). Second, whatever Kessler had to say regarding the instruction’s effect on the presumption of innocence (the question at issue in Kessler), a court may not comment on the evidence by telling the jury “how specific evidence relate[s] to a particular legal issue.” State v. Brown, 310 Or 347, 373, 800 P2d 259 (1990) (trial court did not err in failing to prove the defendant’s requested instruction, because it would constitute an improper comment on the evidence); State v. Wiltse, 373 Or 1, 12, 559 P3d 380 (2024) (construing ORCP 59 E to foreclose such comments); see also State v. Nefstad, 309 Or 523, 552, 789 P2d 1326 (1990) (trial court did not err by declining to give a defendant’s requested instruction that “consciousness of guilt” “does not constitute affirmative proof as to how the crime was committed or defendant’s participation therein.”). In other words, a court may not – when directing the jury to evaluate a witness’s testimony – tell the jury to consider that the witness took an oath to tell the truth. the court is impermissibly noting to the jury a fact in evidence (the witness has sworn an oath to tell the truth) in a jury instruction on how the jury should weigh credibility. Third, the instruction violates the independent rule against vouching. State v. Sperou, 365 Or 121, 133, 442 P3d 581 (2019) (explaining that language that assumes the truth of an allegation constitutes a form of vouching that undermines the presumption of innocence); see also State v. Perez, 373 Or 591, 619, 568 P3d 940 (2025) (Bushong, J., concurring) (noting that prosecutors should “never suggest or insinuate” that the state, the police, or other witnesses believe witnesses and should instead confine themselves to the “standard” jury instruction on evaluating witness testimony). Because Kessler did not address vouching, this court is not bound by the Kessler holding. Noting that the witnesses – especially when the state has the majority or only witnesses – have sworn an oath to testify truthfully is unquestionably vouching. In fact, it is not at all clear what other purpose for that statement would be. Special thanks to appellate attorney extraordinaire Stacy Du Clos for coming up with this argument. Solving the Gordian Knot of Attempted Murder EEDby: Ryan Scott • December 23, 2025 • no comments A jury finding of extreme emotion disturbance can reduce a murder charge to a manslaughter conviction. And it recently got harder for the state to defeat. Richards v Brown, 345 Or App 321 (2025). It's a substantial reduction, from a life-25 sentence to 10 years. But a perennial complaint of defense lawyers is that EED -- though understood as a partial defense to murder -- is not a defense in any way to attempted murder. Seems unfair, but that's the law. Is there anything a defense lawyer can do? Yes. Article I, section 16. There are legal and societal reasons why EED is a substantial mitigating factor. Consequently, EED almost certainly meets Gonzalez standard for application of Article I, section 16. State v. Gonzalez, 373 Or 248 (2025). A successful proportionality argument would still result in prison, but a non-Measure 11 sentence. State v. Fudge, 333 Or App 149 (2024). I have developed a strong interest in expanding the scope of Article I, section 16. For those keeping score at home, here are other times I think you should consider pushing the envelope: (1) When the defendant is highly mentally ill but not quite enough to meet a GEI standard. (2) When the defendant has significant medical needs. (Compassionate release only applies to non-M11 sentences in Oregon.) (3) When a lengthy sentence will only be served after the defendant is found rehabilitated by the parole board. (4) When a defendant is convicted of sex abuse II based solely on the victim being 16 or 17, when there is a statute that makes the exact same crime a misdemeanor. Next 20 Articles Case Reviews
Oregon Court of Appeals, December 31st, 2025by: Rankin Johnson DUII - Field Sobriety Tests JUDICIAL BIAS - Motions to disqualify JUDICIAL BIAS - Recusal DEFENDANT'S STATEMENTS - Waiver Oregon Supreme Court, December 24th, 2025by: Rankin Johnson SENTENCING - Post-sentencing corrections Oregon Court of Appeals, December 10th, 2025by: Rankin Johnson DUII - Diversion SEX CRIMES - Sufficiency ACCUSATORY INSTRUMENTS - Demurrers TRIAL PROCEEDINGS - Written findings PROBATION - Terms Oregon Court of Appeals, December 3rd, 2025by: Rankin Johnson MENS REA - Mental states and specific elements MENS REA - Mental states and specific elements RIGHT TO JURY TRIAL - Probation violations _________________________ |
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