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The biggest sentencing news since Blakely?

by: Ryan Scott • September 14, 2016 • no comments

Well, not as big as Blakely. Not as sexy. And not constitutional. Just a matter of statutory construction. But the impact may be significant. All you need is a client charged with delivery of a controlled substance, and the odds are pretty good your client will benefit from today's opinion.

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Due Process Joinder Issues

by: Thad Betz • September 10, 2016 • no comments

We’ve all been there: clients facing a slew of crimes against alleged victim #1 and a slew of crimes against alleged victim #2. These could have been joined in the same indictment, or they could have been separate charging documents joined together. The result is the same---you are left thinking, after reading a pretty depressing joinder severance statute, ORS 132.560, that the cases or counts will remain joined together and that your client won’t get a fair trial. Its true, they won’t. Which is why fundamental fairness needs to be our focus. There are at least three different places that due process comes into play: (1) reading due process into the subfactors allowing joinder, (2) weighing whether or not joinder itself can provide for a fair trial using Rule 403, and (3) crafting specific trial procedures and jury instructions in the event of a joinder of wholly separate incidents.

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Significant Commercial Drug Offense Opinion

by: Ryan Scott • September 9, 2016 • no comments

We don't get very opinions on the Commercial Drug Offense factors which can aggravated a simply delivery or possession to a level 8. Part of the reason is that even if you've got a good challenge, and you preserve it, it might be mooted out by the simple fact that -- even if you were to win -- the state would have more than three factors to rely on.

Anyway, this week's opinion in State v. Rankins is wonderful, and it might provide a basis for new arguments and renewed attention to the factors.

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My Wish List

by: Ryan Scott • September 5, 2016 • no comments

As most of you know, I have a number of pet issues that I push at any given time. If I seem somewhat relentless with some of the issues, it's because it takes about 6-10 years from when I start promoting an issue to when it gets resolved at the appellate courts. Some win, some lose, some win then lose. But none of them get up to the COA without (1) a case with the issue, (2) a defense attorney who is aware of the issue, (3) a defense attorney willing to preserve the issue (not always the same thing), (4) a case that goes to trial, (5) the issue losing at the trial level, (6) the defendant losing at trial, (7) an appellate attorney who raises it well, (8) an appeal that doesn't moot the issue out for some reason and (9) an appellate court that finds it worth writing about.

Depending on the issue, these can be 9 conditions that are very hard to satisfy. So I keep urging them on attorneys who I like and trust, in the hope that sheer force of numbers will allow the issue to get up at least once, fertilize the COA and produce an opinion.

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Another Reason "On Supervision" Shouldn't Merit a Durational Departure

by: Ryan Scott • September 5, 2016 • no comments

If you do felony sentencings, then you know that there is a three-step process in order for the defendant's sentence to be upwardly departed. First is notice that the state intends to prove one or more aggravating factors to the trier-of-fact. The second is actually proving that factor beyond a reasonable doubt to the trier-of-fact. And the third is the judge finding "the circumstances are so exceptional that imposition of the presumptive sentence would not accomplish the purposes of the guidelines."

I have previously written why I believe why "on supervision" never justifies an upward departure. The reason is simple: a defendant's status of "on supervision" is not remarkable. In fact, it's probably more likely than not. If so, it isn't the type of "exceptional" circumstance that the judge must find in order to upward depart.

There is a new case that probably justifies making this argument with a bit more vigor. In State v. Davilla,,the Court of Appeals reversed an upward departure on an aggravated murder conviction. It did so because the reasons given for the upward departure were insufficient.

To be clear, we are not holding that a defendant’s use of a dangerous weapon could not, as a matter of law, justify a departure sentence. Rather, we conclude that the court’s explanation here regarding defendant’s choice of a small, dull knife and the “increased pain and suffering” experienced by the victim as a result is insufficient to demonstrate why defendant’s use of a dangerous weapon in this case created circumstances so exceptional that the imposition of a presumptive sentence would not accomplish the purposes of the guidelines.

If the state has proven "on supervision", and the judge is now deciding whether to seek an upward departure, be sure to point out that "on supervision" is not exceptional, as demonstrated by the post I linked to above, but also insist that the judge put on the record the reason why "on supervision" is so remarkable in this case that it demonstrates why the guidelines sentence is not sufficient. The judge will have a much easier time explaining why a presumptive probation is insufficient, but she will likely stumble over explaining why a presumptive prison sentence, particularly a long prison sentence, is not sufficient. The key is to ask -- and ask again if necessary -- that the judge put on her reasoning. In the absence of such a request by the defendant, the Court of Appeals will be less likely to hear a complaint that the judge's lack of explanation is insufficient.

Huge Computer (and, by extension, cell phone) SW Opinion

by: Ryan Scott • July 31, 2016 • no comments

If you have a case where the police seized your client's computer or cell phone and searched it pursuant to a search warrant, then you absolutely must read last week's Court of Appeals decision, State v. Mansor.

The key issue:

Here, defendant’s challenge appears to encompass both of those concepts. As we understand it, defendant argues alternatively that (1) the warrant (even in combination with Rookhuyzen’s affidavit) was impermissibly imprecise, because it failed to identify the information on the computers’ hard drives for which the police were authorized to search; and (2) in all events, the warrant was overbroad as authorizing examination of material on the computers beyond that pertaining to defendant’s internet searches during the 15-minute period preceding the 9-1-1 call.

Four Different Applications of the Brady Doctrine

by: Ryan Scott • July 13, 2016 • no comments

Police personnel records and Brady. A nightmare, right? See the analysis here. Notable paragraph:

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Pole Cams and the 4th Amendment

by: Ryan Scott • July 12, 2016 • no comments

From a criminal law blog at the University of North Carolina

Drug Dealers, Their Homes and PC to Search

by: Ryan Scott • June 29, 2016 • no comments

Good federal case on the failure of the search warrant to connect the alleged dealer's residence with his drug activity.

Key quote:

We have never held, however, that a suspect’s “status as a drug dealer, standing alone, gives rise to a fair probability that drugs will be found in his home.” United States v. Frazier, 423 F.3d 526, 533 (6th Cir. 2005). Rather, we have required some reliable evidence connecting the known drug dealer’s ongoing criminal activity to the residence; that is, we have required facts showing that the residence had been used in drug trafficking, such as an informant who observed drug deals or drug paraphernalia in or around the residence. Compare Jones, 159 F.3d at 974-75 (finding probable cause to issue a warrant where confidential informant made drug purchases from defendant, was at defendant’s residence during monitored drug transactions, and observed defendant in possession of cocaine), United States v. Ellison, 632 F.3d 347, 349 (6th Cir. 2011) (inference was proper because reliable confidential informant had “observed someone come out of [the defendant’s] residence, engage in a drug transaction, and then return into the residence”), and Berry, 565 F.3d at 339 (“Although a defendant’s status as a drug dealer, standing alone, does not give rise to a fair probability that drugs will be found in defendant’s home, there is support for the proposition that status as a drug dealer plus observation of drug activity near defendant’s home is sufficient to establish probable cause to search the home.” (internal citation omitted)), with Frazier , 423 F.3d at 532 (inference was not proper because affidavit failed to establish informants’ reliability and informants had not “witnessed [the defendant] dealing drugs from his [new] residence,” just his old residence). Our emphasis on the fact-intensive nature of the probable cause inquiry in known drug dealer cases accords with the Supreme Court’s rejection of “rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach” when evaluating probable cause. Florida v. Harris, 133 S. Ct. 1050, 1055 (2013).
This emphasis likewise comports with the Supreme Court’s instruction that “[t]he critical element in a reasonable search is not that the owner of property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’to be searched for and seized are located on the property to which entry is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978). Finally, our totality-of-the-circumstances probable cause inquiry for search warrants for the home of an allegedly “known drug dealer” honors the Fourth Amendment’s safeguards against unreasonable governmental intrusion into the home.
In sum, our cases teach, as a general matter, that if the affidavit fails to include facts that directly connect the residence with the suspected drug dealing activity, or the evidence of this connection is unreliable, it cannot be inferred that drugs will be found in the defendant’s home—even if the defendant is a known drug dealer. The affidavit here lacks that necessary nexus.

Prosecutorial Culture

by: Ryan • June 24, 2016 • no comments

Reason magazine has recently published, "Confessions of an Ex-Prosecutor."

Key quote:

Once again, nobody taught me to think that way, and nobody had to. I learned it by watching how the system ground up clients indifferently and mercilessly. I learned it by watching prosecutors make the sorts of arguments and decisions I had made, and seeing how they actually impacted human lives. I learned it by watching prosecutorial suspicion—and even paranoia—from the wrong end. I learned it by watching how the system crushed indigent clients, and by how it could destroy the lives of even wealthy clients with minimal effort or cause.
I even learned it by watching prosecutors commit misconduct—the deliberate or reckless infringement of defendants' constitutional rights. I saw prosecutors make ridiculous and bad-faith arguments defending law enforcement, and prevail on them. I saw them make preposterous assertions about the constitution because they could, and because judges would indulge them. I saw them reject my claims that my clients' rights were violated because they were the government and my client was the defendant and that was their job.

Per Se Exigency vs. Near Per Se Exigency

by: Ryan • June 23, 2016 • no comments

In today's opinion in Birchfield v North Dakota, the US Supreme Court held -- among other things -- that obtaining a blood draw in a DUII investigation requires a search warrant or an exception to the warrant requirement (e.g., consent, exigency.) It rejected the argument that no warrant was required under the "search incident to arrest" exception to the warrant requirement.

The big question: Is this different than what the Oregon Supreme Court held in Machuca? And the answer is: yes and no.

Machuca did not hold that blood draws in a DUII investigation justified a per se exception to the warrant requirement. But it did -- in effect -- find a near per se exception, finding that in virtually every case a warrant was not required. The exception to the exception occurred when:

in the rare case, that a warrant could have been obtained and executed significantly faster than the actual process otherwise used under the circumstances. We anticipate that only in those rare cases will a warrantless blood draw be unconstitutional.

Machuca at 736.

Does that mean there's ever a situation where the police would have to get a warrant to draw blood in a DUII investigation? Well, the following exchange might be appropriate here.

Lloyd Christmas: Hit me with it! Just give it to me straight! I came a long way just to see you Mary, just... The least you can do is level with me. What are my chances?
Mary Swanson: Not good.
Lloyd Christmas: [he gulps, his mouth twitching] You mean, not good like one out of a hundred?
Mary Swanson: I'd say more like one out of a million.
Lloyd Christmas: [long pause while he processes what he's heard] So you're telling me there's a chance. YEAH!

In the real world, Machuca announced a per se exception (to everyone except Lloyd Christmas), the very thing that was rejected today in Birchfield. But the Oregon Supreme Court has -- in the past few years -- become known for slicing the law very finely. Will it pretend that its rule of a near per se exigency is not at obvious odds with today's Birchfield decision, because of an exception it imagines that simply doesn't translate in an any meaningful way to the experience on the ground?

Interesting SCOTUS Fact of the Day

by: Ryan • June 21, 2016 • no comments

Per Ronald Mann, for the Term so far -- there are still nine opinions left to be issued -- the two Justices most in agreement, according to SCOTUSblog statistics, are Justices Elena Kagan and Anthony Kennedy, agreeing in ninety-seven percent of the cases.

When a minor distributes nude pictures of himself

by: Ryan • June 21, 2016 • no comments

I blogged about this in September, 2015, in response to an incident out of North Carolina.

Well, now it has happened a little closer to home. 17-year-old harasser is convicted of distributing child porn of himself

Orin Kerr on Utah v Strieff

by: Ryan • June 20, 2016 • no comments

A curious decision from the COA

by: Ryan • June 15, 2016 • no comments

I submit that it is simply impossible to reconcile Tooley and today's opinion, but assuming it is possible, the COA at least had an obligation to try. In Tooley, there was more than enough time to "do other, almost kind of mundane things" (like errands) and then to "reflect, reform a state of mind and intent" (12 hours) before he "came back and administered a second assault" (murder).

The failure of the court to explain its ruling with anything more than the most cursory analysis unnecessarily feeds the cynical view that 12 hours between crimes, with errands run in between, constitutes just one criminal episode as long as it means the state wins, but 15 minutes between crimes, with mundane activities taking place in between, constitutes two criminal episodes, as long as it means the state wins. (Both cases involved one overarching criminal objective.) I am not that cynical, because I'm actually a very big fan of the judges at the Court of Appeals, but I do think they really whiffed on this one.

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Another Cell Phone Search Warrant Found to Be Overbroad

by: Ryan • June 14, 2016 • no comments

Opinion out of Massachusetts here. Unfortunately for this defendant, it was found to be harmless.

But as we observed in Dorelas, which involved a search of a cellular telephone offering features and access to the Internet similar to the defendant's, where search of this type of cellular telephone is sought, there must be probable cause that the device contains "particularized evidence" relating to the crime. See Dorelas, supra at 502. The properties of such a telephone render it "distinct from the closed containers regularly seen in the physical world, [and] a search of its many files must be done with special care and satisfy a more narrow and demanding standard" than exists for establishing probable cause to search physical containers or other physical items or places. See Dorelas, supra at 502. In particular, it is not enough that the object of the search may be found in the place subject to search. See id. at 501-502. Rather, the affidavit must demonstrate that there is a reasonable expectation that the items sought will be located in the particular data file or other specifically identified electronic location that is to be searched. See id. at 503-504.

As I have noted in previous posts, about once a month, maybe slightly longer, there is an opinion out of a state or federal appellate court finding a cell phone search warrant overbroad. We're still waiting on such on opinion out of Oregon, but in the meantime, please preserve this issue, and talk to me if you need help to do so.

9th Circuit: No 2nd Amendment Right to Public Conceal and Carry

by: Ryan • June 9, 2016 • no comments

Details here.

Growing Opposition to the Death Penalty and Finding Death-Qualified Juries

by: Ryan • June 8, 2016 • no comments

Details here.

Stanford Rape Case

by: Ryan • June 8, 2016 • no comments

Smart piece by Mark Joseph Stern on the erosion of due process guarantees exemplified by the recent sentencing.

What does it mean to masturbate "with" someone?

by: Ryan • June 8, 2016 • no comments

For questions of such seminal importance, we look -- as always -- to the Utah appellate courts.

Notable Petition for Cert. - Interpreters and the Confrontation Clause

by: Aalvarez • June 4, 2016 • no comments

A notable petition for cert. has been filed with the U.S. Supreme Court. The case is Ye v. United States and the question is: Whether the Confrontation Clause permits the prosecution to introduce an out-of-court, testimonial translation, without making the translator available for confrontation and cross-examination.

In State v. Rodriguez-Castillo, 345 Or. 39 (2008), the Oregon Supreme Court held that when someone testifies about what another person said through a translator for the truth of the matter asserted, it is double hearsay and the statements of both the declarant and the translator must meet some exception. In State v. Montoya-Franco, 250 Or. App. 665 (2012), the defendant challenged police officer's testimony as hearsay because it was based on a translator's statements. In that case, the court held that the officer's testimony had adequate foundation because the translator's qualifications fulfilled the requirements of Oregon's hearsay exception statute OEC 803(28). The translator was a fluent Spanish speaker, spoke Spanish every day, received a bonus for his Spanish skills and frequently served as an interpreter. These qualifications ensured that the interpreter's translation was reliable and trustworthy. Therefore, the admission of the translated statement was not qualitatively different from the admission of the defendant's own statement.

Despite examining an interpreter's statements in the context of hearsay rules and exceptions, Oregon has not yet examined the effect of the federal confrontation clause. For example, in State v. Sierra-Depina, 230 Or. App. 86 (2009), the defendant argued that a defendant's translator's statements are testimonial and inadmissible without the original interpreter's testimony at trial. In that case, the Court of Appeals disposed of the issue on harmless error grounds. Of note however, is this opinion from the Maryland Court of Special Appeals, which relied on Oregon case law and held that an interpreter's statements are testimonial.

Petition for Cert here. Petitioner's reply brief here. Respondent's brief here. Amicus briefs here and here. Look at them. Enjoy them. Use them to preserve the argument now.

2016 Criminal Law Quiz

by: Ryan • May 29, 2016 • no comments

Here we go -- another mix of open questions, predictions and -- in a year, if we're lucky -- answers.

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DUII: News You Can Use

by: Ryan • May 27, 2016 • no comments

This post includes some news out of the Oregon Supreme Court, as well as recent case law from around the country on blood draws and exigency.

First, the Oregon Supreme Court issued a press release this week, indicating it was granting review to State v. Swan, in which the questions presented are:

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The Improper Joinder Demurrer: A Post from 2010

by: Ryan • May 21, 2016 • no comments

The first five posts I wrote for Library of Defense appeared in October and November of 2010. The subject of all five were criminal episodes. I recently revisited the posts, and I'm rather pleased they've held up nicely, at least in terms of the law. I've copied below the fifth in the series, and it is about the improper joinder demurrer. It makes the point that is worth making again in light of State v. Poston. The goal of the improper joinder demurrer has always been to make the law more fair and just, not about getting the state to reindict. And the demurrer does this indirectly, by encouraging the state to commit -- sometimes -- that the charges in the indictment are from one criminal episode before trial, so that the prosecutor doesn't take the opposite position at sentencing. Consequently, I'm not all that concerned that defense lawyers aren't winning Poston demurrers post-Poston, because the state is amending the indictment to allege the facts necessary for joinder. Instead, I'm pleased that the state is now doing exactly what I hoped. And if you have any doubt, read the following, originally written nearly six years ago.

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A Belated Review of the 2015 Criminal Law Quiz

by: Ryan • May 8, 2016 • no comments

The 2015 Criminal Law Quiz is here.

The good news: the questions on the improper joinder demurrer (State v. Poston) and the mental state for UUV (State v Simonov) were answered favorably for the defense.

The non-news: no new opinions on Grand Jury notes or child porn sentencing issues. Will we get new opinions on those topic this year? Out of six cases (that I knew of) where the appellate briefs raised the issue of the failure to turn over Grand Jury notes, five were AWOP'd. One is outstanding, but the GJ notes issue wasn't the only one, so there's no guarantee it will be reached on the merits.

Meanwhile, at the trial level, most judges still rely on prosecutors to reassure them that there was nothing exculpatory in the Grand Jury notes, even in cases where the witness told one thing to the police and something different on the witness stand.. In other words, judges are still forsaking their responsibilities. But I think this will change, as soon as we get one decent appellate decision. But appellate judges aren't all that interested either. Still, I have hope. It is so obviously wrong that defendants are being denied evidence of the most effective tool of cross-examination: the inconsistent statement. But it's a tricky issue to preserve: keep at it, and the COA will get it right eventually.

As for the child porn sentencing issues, the two primary sentencing issues discussed in the criminal law quiz have been preserved in a couple of cases, and I expect the COA will reach the issues eventually, if not this year then within the next two.

I hope to publish the 2016 quiz soon. As always, it's simply a vehicle to highlight open legal questions, and this year at least, we had a pretty good batting average.




Next 20 Articles

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Oregon Supreme Ct - Sept 22, 2016

by: Sara Werboff • September 23, 2016 • no comments
  • Custodial Interrogation - Police Unconstitutionally Reinitiated Interrogation After Defendant Invoked Right to Counsel
  • Vouching - Out-of-Court Statements on Credibility Not Categorically Inadmissible if Offered for Relevant, Non-Opinion Purpose
  • Sentencing - LWOP Sentence Unconstitutional As Applied to Third Conviction for Felony Public Indecency
  • Sentencing - LWOP Sentence Constitutional for Recidivist Sex Offender
→ read the full summaries...

Oregon Appellate Ct - Sept 21, 2016

by: Sara Werboff • September 22, 2016 • no comments
  • Search and Seizure - Search of Closed Container Lawful as a Search Incident to Arrest
  • Sufficiency of Evidence - Proof of Burglary Requires More than Commission of Crime in a Dwelling
  • Jury Concurrence Instruction - Defendant Entitled to Instruction in Fourth-Degree Assault Case
  • Sufficiency of Evidence - Evidence Sufficient to Prove Knife Contained a Spring
  • Admissibility of Confession - Defendant's Statements Induced by Threats
  • Pleading Requirements - State Required to Allege with Particularity Pattern of Racketeering Activity for "Inchoate" ORICO Charge
  • Probation Revocation - Probationer Does Not Have Due Process Right to Discovery of his Probation File
  • Juvenile Dependency - Termination of Parental Rights - Assertion of Jurisdiction and Termination of Rights Not Error
  • Juvenile Dependency - Parents Could Not Contest Evidence Through Attorneys when They Failed to Personally Appear
  • Parole - Board Lacked Authority to Postpone Petitioner's Release Date
→ read the full summaries...

Oregon Supreme Ct - Sept 15, 2016

by: Sara Werboff • September 18, 2016 • no comments
  • First-Degree Child Neglect Does Not Include Leaving a Child Where Drugs are Possessed with Intent to Deliver
→ read the full summaries...

Oregon Appellate Ct - Sept 14, 2016

by: Sara Werboff • September 16, 2016 • no comments
  • Search & Seizure - Search Warrant for All Electronic Devices was Overbroad
  • Prior Bad Acts Evidence - Johns Test Not Required for Hostile Motive Evidence'
  • Sentencing Enhancements - Defendant Entitled to MJOA on Commercial Drug Enhancement
  • Jury Instructions - Defendant Entitled to Instructions on Deadly Force and Felony Assault
  • In Camera Inspection of Records - Trial Court's Discretion to Conduct In Camera Review
  • Venue - Defendant Not Entitled to Judgment of Acquittal or Dismissal after Mills
  • Search & Seizure - Police Lacked Reasonable Suspicion to Stop Defendant - Emergency Aid Exception Unavailable
  • Termination of Parental Rights - Mother Entitled to Evidentiary Hearing on Adequacy of Counsel
  • Juvenile Dependency - Evidence Sufficient for Juvenile Court's Continuing Jurisdiction
  • Post-Conviction Relief - Dismissal of Successive or Untimely Petition
  • Restitution - Attorneys Fees - Reversing Attorney Fees but Affirming Restitution Award
→ read the full summaries...

Oregon Appellate Ct - Sept 8, 2016

by: Sara Werboff • September 11, 2016 • no comments
  • Commercial Drug Offense - Text Messages Did Not Constitute Drug Transaction Records
  • Merger of Guilty Verdicts - Witness Tampering Verdicts Should Merge
  • Sufficiency of Evidence - Insufficient Evidence to Prove that Defendant Possessed Dangerous Weapon
  • Lesser Included Offense Instruction - Defendant Entitled to Attempt Instruction on Possession of Weapon and Contraband Charges
  • Sufficiency of Evidence - Evidence Sufficient for Aiding and Abetting Theory
  • Post-Conviction Relief - Petitioner Allowed to Make Record Concerning Complaints about PCR Counsel
  • Juvenile Dependency - Court Failed to Apply Proper Standard to Determine Jurisdiction of Oregon Courts
  • Appeal and Review - Revocation of Conditional Discharge Not Reviewable on Appeal
  • Sufficiency of Pleadings - Inmate's Filing Stated Claim for Conversion
  • Civil Commitment - Sufficiency of Evidence - Per Curiam
→ read the full summaries...

Oregon Appellate Ct - Aug 31, 2016

by: Sara Werboff • September 2, 2016 • no comments
  • Identity Theft - "Transfer" of Personal Information Requires Giving Possession or Control to Another for Fraudulent Purposes
  • Jury Instructions - Plain Error Not to Give Jury Concurrence Instruction when State Advanced Both Principal and Aider and Abettor Theories
  • Search & Seizure - Third Party Consent was Valid - Warrantless Seizure was Unlawful
  • Revocation of Probation - Proper to Sentence Defendant to Maximum Under ORS 137.717 in Effect at Time of Original Conviction
  • Denial of Motion to Sever is Not Error when Sex Abuse Allegations are of Same or Similar Character
  • Restitution - Damages for Hit & Run Include Money Spent by Insurer for Purposes of Restitution
  • Restitution - Defendant Bears Burden of Proving that Victim Failed to Mitigate Damages
  • Jury Instructions - Failure to Instruct on State's Burden to Disprove Defense is Plain Error
  • Board of Parole - Petition for Judicial Review is Dismissed as Moot
  • Post-Conviction Relief - State's Motion for Summary Affirmance Granted
  • Judgments - DUII Conviction Fee - Per Curiam
  • Mandatory State Amount - Per Curiam
→ read the full summaries...

Oregon Appellate Ct - Aug 24, 2016

by: Sara Werboff • August 26, 2016 • no comments
  • CARES Video Admissible at Trial - 403 Balancing
  • Sentencing - Upholding Mandatory Minimum Sentence for Juvenile
  • Character Evidence - Exclusion of Character Evidence Concerning Defendant's Sexual Propriety was Not Harmless Error
  • Post-Conviction - Trial Counsel's Failure to Request Jury Concurrence Instruction Grounds for PCR
  • Court-Appointed Attorney Fees - Preservation - Per Curiam
  • Civil Commitment - Insufficient Evidence that Appellant Could Not Meet Basic Needs - Per Curiam
  • Civil Commitment - Trial Court's Failure to Advise of Rights - Per Curiam
→ read the full summaries...

Oregon Appellate Ct - Aug 17, 2016

by: Sara Werboff • August 19, 2016 • no comments
  • Identity Theft - Converting to One's Own Use Means Appropriating a Person's Personal Identification Without Consent of that Person
  • Probable Cause - Drugs Found in Passenger's Possession Does Not Create Probable Cause that Driver Possessed Drugs
  • Miranda Warnings - State Must Prove Spanish Miranda Warnings Were Understood
  • Exigent Circumstances - Entry Into Private Garage Lawful to Pursue Fleeing Suspect
  • Probation Revocation - Court Does Not Need to Find that Probation Violation was Willful to Revoke Probation
  • State Concedes Insufficient Evidence of Second-Degree Criminal Mischief - Per Curiam
  • Attorneys Fees - In Camera Review - Per Curiam
→ read the full summaries...

Oregon Supreme Ct - August 11, 2016

by: Sara Werboff • August 11, 2016 • no comments
  • Third-Degree Escape - Definition of Custody Includes "Constructive Custody"
→ read the full summaries...

Oregon Appellate Ct - Aug 10, 2016

by: Sara Werboff • August 10, 2016 • no comments
  • Vouching - PTSD Diagnosis Admissible in Sex Abuse Case
  • Post-Conviction Relief - Failure to Request Curative Instruction Possibly Strategic and Not Prejudicial
  • Probation Revocation - Trial Court Constrained By Terms of Judgment in Imposing Sentence on Revocation
  • RPO Sentence Imposed After Probation Revocation is Reviewable - Plain Error Review Not Warranted
→ read the full summaries...

Oregon Appellate Ct - Aug 3, 2016

by: Sara Werboff • August 7, 2016 • no comments
  • First-Degree Criminal Mistreatment - Taking of Elderly Person's Money Does Not Include Accepting Gifts - First Impression
  • Disorderly Conduct - Physically Offensive Condition Means Creating Unpleasant Sensory Effects
  • Aggravating Sentencing Factors - Does Use of Dangerous Weapon Justify Upward Departure for Murder - Sufficiency of Trial Court's Findings
  • Search & Seizure - Silence is Not an Unequivocal Manifestation of Intent to Abandon Property
  • Search & Seizure - Scope of Consent to Patdown - Officer Safety
  • Hearsay from Confidential Informant - Opening the Door - Harmless Error
  • Post-Conviction Relief - Sufficiency of PCR Judgment Denying Claims for Relief
  • Post-Conviction Relief - Sufficiency of PCR Judgment Denying Petition as Untimely
  • Challenge to Department of Corrections Rules - Retroactivity - Vagueness - Exceeding Statutory Authority
  • Assault IV - Physical Injury - Sufficiency of Evidence - Per Curiam
  • Merger - Trial Court Can Find Sufficient Pause from Defendant's Guilty Plea to Date Range - Per Curiam
  • Jury Instructions Including Theories Not Alleged in Indictment are Erroneous - Per Curiam
  • Search & Seizure - Unlawful Extension of Stop - Per Curiam
  • Declaratory Relief - Waiver or Deferral of Filing Fees - Per Curiam
→ read the full summaries...

Oregon Appellate Ct - July 27, 2016

by: Amanda Alvarez Thibeault • July 28, 2016 • no comments
  • Vouching – Cooperation Agreement with the State
  • Plain Error – UUW and Felon in Possession of a Firearm
  • ORS 144.228(1)(c) and OAR 255-38-005(4) - “Reasonable Cause” – “Delegative Term”
  • Williams Requires 403 Balancing
  • Juvenile Dependency – Proper Standard for a Motion to Dismiss
  • Search and Seizure – Search Warrant – Theft of a UTV
  • Appeal from a Juvenile Dependency Judgment Dismissed as Moot
  • DUII – Right to Counsel During a Breath Test
  • Manslaughter – MJOA
  • Search and Seizure – Warrants – Particularity Standard As it Applies to Computers
  • Attorney’s Fees – Per Curiam Reversal
  • Civil Commitment – Per Curiam Reversal
→ read the full summaries...

Oregon Supreme Ct - July 21, 2016

by: Amanda Alvarez Thibeault • July 22, 2016 • no comments
  • ORS 164.377 - Computer Crime - "Without Authorization"
→ read the full summaries...

Oregon Appellate Ct - July 20, 2016

by: Amanda Alvarez Thibeault • July 21, 2016 • no comments
  • Mere Failure to Show Up After Being Subpoenaed – Insufficient to Make a Witness Unavailable Under the Confrontation Clause
  • Evidence of a Restraining Order – Relevant in a DUII Trial to Contradict Defendant’s Timeline
  • PCR – IAC – Erroneous Jury Instructions – Attempted Second Degree Assault
  • Article I, Section 9 – Abandonment of Containers Found in a Stolen Truck
  • Prior Uncharged Conduct – Identity Evidence – Distinctive Clothes and Weapons
  • OEC 401- Relevant Evidence – Evidence Depicting Defendant’s Version of the Attack
  • Initiating a False Report – MJOA
  • Failure to Perform the Duties of a Driver – Witness False In Part Instruction
  • Attorney's Fees - Per Curiam Reversals
  • Civil Commitments - Per Curiam Reversals
  • Waiver of Counsel - Per Curiam Reversal
→ read the full summaries...

Oregon Appellate Ct - July 7, 2016

by: Amanda Alvarez Thibeault • July 7, 2016 • no comments
  • “Offer to Purchase” – ORS 260.715(9)
  • Article I, Section 8 - Freedom of Speech – ORS 260.715(9)
  • Dependency – Current Threat of Serious Loss or Injury – Ongoing Mental Health Issues
  • Prior Bad Acts – Motive – No Need for Leistiko Instruction
  • PCR – Failure to Request a Boots Instruction
  • Per Curiam Attorney’s Fees Reversal
  • Per Curiam Reversal of $60 Mandatory State Assessment
→ read the full summaries...

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