OCDLA Library of Defense - Latest Case Reviews
THIS POST HAS BEEN AMENDED. In my opinion, one thing that sets a great defense lawyer apart from a good defense lawyer is the quality of their special jury instructions.
Special jury instructions have a number of advantages. If given, they can put the weight of judicial authority behind your argument. It's not just you saying what the state needs to prove, for example. It's what the judge is saying. If the instruction is not given, the standard of review on appeal is very defense-friendly. To obtain a reversal on an ungiven special jury instruction, you need the instruction to be a correct statement of the law and any evidence in the record that would justify it. This is the reverse of the standard of review for MJOA, where the evidence is viewed in the light most favorable to the state. (To be precise, it's also important that the instruction is not only a correct statement of the law but also is not unduly slanted toward the defendant.)
When are jury instructions most valuable? Usually when the statute is broadly written, but either the legislature or the case law has narrowed the scope of the statute. That happened with the crime of kidnapping, for example. Back in 2017, I spoke at a conference in Portland and recommended -- among many other things -- the following special jury instructions:→ continue reading...
One longstanding argument is that the way the laws are written, a person's ODL should not be suspended because of a conviction for either unlawful use of a vehicle or possession of a stolen vehicle. The reasoning is simple. The law allows a suspension if an element of the crime includes a "motor vehicle." Neither UUV or PSV have an element that specifies "motor" vehilce, and the fact that the crime may have involved a motor vehicle doesn't make "motor vehicle" an element of the crime.
As far as I know, this issue hasn't made it to the Court of Appeals. Part of the reason for that is that certain prosecutors have conceded the issue. Part is that some defense attorneys aren't aware of the issue. Another reason, I suspect, is that even defense attorneys who are aware of the issue decide it's not worth fighting over when the defendant is going to get a two or three-year prison sentence and the license suspension is only for a year. No driving in prison, anyway.
Except that if the trial judge does impose a license suspension of one year, even if the suspension order indicates that the suspension will begin at the time of sentencing, DMV won't actually suspend the license until the defendant is freed from prison, adding to the hardship that comes with leaving prison. The more hardship, the increasing likelihood the defendant will recidivate.
If you want to help your clients stay crime-free when they get out of prison, argue against the license suspension and if you lose, send the issue up to appeal. It won't just be your client who benefits.
If a defendant properly raises a claim of self-defense, the state must disprove that defense. The jury will be instructed as follows:
But what if a person believes they are acting in self-defense but their belief is unreasonable? The state will argue the defense does not apply. But is someone who intentionally kills someone no more morally culpable than someone who kills out of an unreasonable misapprehension of the need to defend themselves? Should the law recognize a difference between the two?
Arguably, the law already does so, albeit indirectly. You might be able to get there by applying a mental state to the element of self-defense. All material elements for crimes in the criminal code have mental states barring express language from the legislature. "Not acting in self-defense" is an element (i.e., something the state must prove in order to obtain a conviction.)
For more on this argument, please e-mail me directly.
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by: Rankin Johnson
CHARGING DOCUMENTS - Identity of victim
JURY UNANIMITY - Remedy
EVIDENCE - Authentication
MEASURE 11 - Juvenile or adult disposition
SEARCH AND SEIZURE - Scope of inquiry following stop
RAPE SHIELD - Constitutionally requires to be admitted
EVIDENCE - Character evidence
by: Rankin Johnson
BURGLARY - License to enter
THEFT OFFENSES - Theft of services
RIGHT TO COUNSEL - Waiver
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