Should prosecutors object to a defendant's request for unanimous juries?by: Ryan Scott • April 8, 2019 • no comments If a defendant in Oregon is going to trial on any felony other than murder, the jury will likely be instructed that of the 12 jurors, only 10 need to vote guilty to convict. Oregon is the only state in the country that allows the jury to be so instructed. Next term, the Supreme Court of the United States will decide whether that instruction violates the federal Constitution. For details, go here. In light of the fact that a US Supreme Court ruling is (relatively speaking) imminent, even the most modestly competent defense attorneys in Oregon will object to that instruction and ask that only a unanimous verdict can be the basis for guilt. Prosecutors will oppose. Should they? First, prosecutors will argue that they are required by the Oregon Constitution to oppose, since they interpret the Oregon Constitution to mandate non-unanimous verdicts, as opposed to merely allowing non-unanimous verdicts. I think that reading is absurd, but if the local DA believes it, then the discussion is over. In their minds, they have no choice but to oppose any unanimity requirement. But assume a local DA realizes that (1) he can lawfully agree to instruct the jury on the need for unanimity and (2) there is at least a 50/50 chance that non-unanimous verdicts will be declared unconstitutional. Should the DA reduce the risk of an appellate reversal of any convictions by conceding the issue, at least temporarily, now? It's a fun hypothetical but I would be shocked if any DA made such a concession, no matter how sound it would be to do so. My experience has been such that prosecutors would willingly increase the odds of a reversal, sometimes significantly, than make it even a little harder to get a conviction. There is a reason so many arguments that I have encouraged over the years have resulted in reversals and will do so for decades to come. There are institutional and professional incentives to get the conviction now, at all costs, regardless of the expense of a possible reversal, and the pain it might bring to victims and their families. (I would note that it's not either/or. If the prosecutor is wrestling with whether to offer a piece of evidence, knowing it's helpful but not essential but also likely to increase the chances of a reversal, the simple solution is to make the defendant a better plea offer.) In this situation, the usual conflict between getting a conviction and risking a reversal is much more stark than normal. A favorable ruling from SCOTUS could result in dozens of reversals, at great expense and inconvenience. Prosecutors who support non-unanimous verdicts often claim that, if unanimity were required, the results wouldn't change much, because eventually the hold-outs would eventually agree with the majority. Or in the rare case of a mistrial due to a hung jury, there would be unanimity the next time around. If prosecutors really believe that, then agreeing to unanimity now would seem to minimize the risk of a massive number of reversals in exchange for only mild inconvenience. But I think prosecutors mostly realize, their public claims notwithstanding, that unanimity would be a hardship for them. Not that there would be that many more hung juries, but that there would be a lot more compromise verdicts. That is, if jurors are 10-2 to convict of Robbery I, rather than telling the court they're hung, they might agree to convict unanimously of Robbery II. It may not be completely satisfying, but jurors want to reach a verdict, they want to get the job done, and if there is a way to do so, they will find it. A compromise verdict is often the most reasonable way forward. If and when these cases come back in 2-3 years, if a civil trial can't get out because all these criminal cases are being re-tried, if victims have to relive the trauma of trial, remember this: when a case gets reversed, it is the prosecutor's fault. They won't tell you that. They'll blame the appellate judges. And technically, it's the trial judge who is reversed, but only because he or she did what the prosecutor asked them to. How the prosecutor can seek to double the presumptive sentence of Oregon felonies and why it may be unconstitutionalby: Ryan Scott • March 24, 2019 • no comments All felonies in Oregon state court -- even Measure 11 felonies -- can be slotted into a gridblock on the sentencing guidelines. These guidelines -- often known as the grid -- inform both judges and lawyers of the presumptive sentence of that particular crime, calculated in combination with the defendant's criminal history. Those presumptive sentences are often trumped by Measure 11 or sentences specific to repeat property offenders or repeat sex offenders. The prosecution has ways of increasing the presumptive sentence, by giving notice of upward departure factors. In fact, the presumptive can be doubled, so that it is often greater than most Measure 11 sentences. These factors -- although they are considered elements of an aggravated version of the crime under the US Constitution -- are rarely submitted to a Grand Jury for approval, nor are they presented to a magistrate pursuant to a preliminary hearing. All it takes is written notice within 60 days of arraignment on a felony indictment. The easier it is to do something, the more frequently it is done, and so prosecutors will often file notice of very frivolous factors in an effort to gain additional leverage over a defendant. Given there is no real oversight, there is no disincentive for prosecutors to do this. How frivolous? Upward departure factors must alleged something that isn't captured in the crime itself, because the factor is supposed to show why the crime is uniquely deserving of extra punishment. Yet any defense attorney who has been practicing for more than a few years has seen a notice that alleges the enhancement of "use of a dangerous weapon" for a crime, such as robbery in the first degree, that as alleged requires use of a dangerous weapon. Or "threat of violence" in an assault case. I haven't yet seen "permanent injury" alleged when the defendant is charged with murder, but I've seen a departure notice that is just as ridiculous. However, this practice may be unconstitutional, and we might be just a few years away from the United States Supreme Court expressly saying so. Here is a short summary of the complex history this issue implicates. → continue reading...Oregon Appellate Court--March 6, 2019by: Rankin Johnson IV • March 12, 2019 • no comments JOINDER AND SEVERANCE - Evidence relevant to one charge and prejudicial to another FAPA AND STALKING ORDERS - Imminent danger of abuse JOINDER AND SEVERANCE - Necessary allegations SEARCH AND SEIZURE - Reasonable suspicion of timber offense EVIDENCE - Conduct and demeanor as evidence SENTENCING - Persons entitled to claim restitution COMPULSORY PROCESS - Witness asserting privilege CONTEMPT - Permissible sanctions → continue reading...Oregon Appellate Court--December 27, 2018by: Rankin Johnson IV • January 8, 2019 • no comments FINES, FEES, AND COSTS - Ability to pay APPEAL AND REVIEW - Proceedings on remand SEARCH AND SEIZURE - Officer safety → continue reading...Improper Joinder Demurrer: What Issues Remain?by: Ryan Scott • December 14, 2018 • no comments With the issuance of State v. Warren by the Oregon Supreme Court, the lengthy litigation over whether the face of the indictment must affirmatively justify joinder of multiple counts is over. It must, or the indictment is subject to a demurrer. Nevertheless, some questions remain. Here are three. 1. Does an indictment that alleges that crimes are from the same criminal episode prohibit the state from arguing otherwise at sentencing? State v. Bush held "same criminal episode" language in the indictment did not prohibit, under the doctrine of equitable estoppel, the state from taking a contrary position at sentencing. Part of the court's analysis was based on the lack of any reliance by the defendant on that language. What is worth noting is that Bush was decided more than a decade before the Court of Appeals ruled in State v. Poston that an indictment without such language might be subject to a demurrer. I see cases now where the relevant language is enough to keep the defendant from filing the demurrer, which would, it would seem, show detrimental reliance by the defendant. In sum, Bush may not be good law anymore. 2. If the state alleges grounds for joinder, but those grounds aren't supported by the facts, may a defendant move for a mistrial at the close of the state's case? The answer would appear to be "yes."
State v. Sanchez, 14 Or. App. 234, 511 P.2d 1231 (1973) As you can see, Sanchez is from 1973, but there wouldn't appear to be any flaws in its holding or any reason to believe it has been undermined by subsequent case law. 3. Can the state amend the indictment, without resubmitting it to the Grand Jury, to include the necessary joinder language? State v. Haji says yes. But that's a Court of Appeals decision, and the Supreme Court has just granted review. The argument for why Haji is wrong is this. An error cannot both merit demurrer and be a defect in form—those categories are mutually exclusive. The granting of a demurrer would either end the case in its entirety, or it would require the grand jury to consider a new and different indictment. Allowing the state to simply add language that would obviate either outcome alters the essential nature of the indictment and effectively adds charges to the indictment that should not be there. Because the defect is one of substance and not form, the prosecutor has no authority to amend the indictment in this case. Do DCS and PCS now merge?by: Ryan Scott • December 10, 2018 • no comments In 1991, the Oregon Court of Appeals held that Delivery of a Controlled Substance (DCS) and Possession of a Controlled Substance (PCS) do not merge, because each crime contains an element the other does not. Specifically, a person can deliver a controlled substance (which, by statute, includes "attempted delivery") but not simultaneously possess the controlled substance. State v. Sargent, 110 Or App 194 (1991). In Oregon law, merger refers to the combination of two or more guilty verdicts into a single conviction. If DCS and PCS were to merge, the benefits are real but relatively marginal. Merger of those two crimes would be unlikely to reduce the defendant's time in custody, but it could (1) reduce fines and fees, (2) possibly help with expungement many, many years later and (3) reduce the defendant's criminal history score, in case he or she is charged with more crimes in the future. Generally speaking, though, it's always better to have fewer convictions. Most important of all, however, is that it would require prosecutors to improve their offers pre-trial. A prosecutor who makes no concessions on the DCS because he or she is already agreeing to dismiss the PCS may be pressured to make additional concessions to keep a case from going to trial, since, if the counts merge, the PCS is going away anyway. There are four different ways for crimes to merge, but the one most relevant to the Sargent analysis is whether, by committing DCS, a person necessarily commits PCS. If yes, then they merge. If not, then they don't. You might think, of course you have to be guilty of PCS when you commit DCS. You've got to have/possess the drugs to deliver them, don't you? Not according to the Sargent court. The reason is because of how "delivery" is defined in Oregon law. ORS 475.005 defines "delivery" as "the actual, constructive or attempted transfer, other than by administering or dispensing, from one person to another of a controlled substance, whether or not there is an agency relationship." "Attempted" is the key word here. The Sargent court determined that a person could "attempt a delivery" and thus be guilty of DCS if they solicit someone else to deliver drugs. Consequently, the court held:
The key thing to note is that the opinion hinges on the defendant soliciting a third party to delivery drugs, which amounts to an attempted delivery. This is distinct from a theory of accomplice liability. If a defendant is convicted as an accomplice to another person's delivery and possession of drugs, he'd still be guilty of possession even if he didn't personally possess the drugs themselves. The Oregon Supreme Court said as much in the context of forgery in State v. Blake, 348 Or 95 (2010):
Blake didn't overrule Sargent because unlike DCS, a person could not be convicted of "uttering" a forged instrument merely by attempting to do so. If they couldn't be convicted merely for the attempt, then they couldn't be convicted for mere solicitation. Even before the events of last week, the Sargent holding was based on a questionable view of the relevant legislative history, specifically whether or not the legislature intended that solicitation by itself amounted to an attempt. There was a subsequent COA case from 2005 that went into the problems with the Sargent reading of legislative history, but reaffirmed Sargent anyway, in part because no one was arguing at that time Sargent was wrong decided. That case is State v. Johnson, 202 Or App 478 (2005). Skip to December 2018, and the attempted aggravated murder/solicitation to commit aggravated murder case State v. Kimbrough, 364 Or 66 (2018). The bottom line is that the court held that solicitation to commit a crime did not amount to an attempt to commit the crime, unless the defendant intended to commit the crime also. The Supreme Court held:
Kimbrough is a deep-dive into legislative history that does need not to be summarized here. What is important to note is that the holding of Sargent that DCS and PCS do not merge depended on the COA's conclusion that solicitation to deliver drugs constituted an attempt to deliver drugs. The OSC has now held that solicitation is insufficient to constitute attempted delivery, unless the defendant is going to participate, in which case the defendant himself is in possession of those drugs, either as a principal or as an accomplice. If you are a defense attorney in Oregon, preserving this issue after trial is simple. You can write a memo that cites to the cases above or, if your court tolerates informality, you can simply give them a copy of the blog post. In my experience, most trial judges would not merge, until Sargent is explicitly overruled. But as long as you preserve the issue, an appellate attorney can do the heavy lifting. Incorporating the Grand Jury Clause from the Bill of Rights to State Prosecutionsby: Ryan Scott • November 29, 2018 • no comments Yesterday, in a case called Timbs v. Indiana, the United States Supreme Court heard oral argument on whether the Excessive Fines Clause of the 8th Amendment applied to the states. When the Bill of Rights -- the first 10 amendments to the US Constitution -- was first adopted, it did not apply to the states. However, the passage of the Due Process Clause of the 14th Amendment -- which does apply in state court -- was widely interpreted as incorporating some of the first 10 amendments, that is, limiting state power in state criminal prosecutions, primarily. But which federal constitutional rights protect a defendant in state court and which do not? Early on, it was hit or miss, and in 1884, in a case called Hurtado v. California, the US Supreme Court appeared to hold that the indictment clause in the Fifth Amendment does not apply to state prosecutions. More on this later. Over time, the Supreme Court increasingly held that the Due Process Clause of the 14th Amendmendment incorporated more and more of the Bill of Rights. And the trend has been to reverse earlier opinions that said otherwise. For example, it wasn't until 2010 that the US Supreme Court held that the 2nd Amendment (the right to bear arms) was incorporated by the Due Process Clause, reversing very old precedent. Thus, in state court, a defendant could cite the federal protections of the 2nd Amendment when challenging a state statute. In the Timbs case, the question at issue was whether the Due Process Clause incorporated the provision in the 8th Amendment that prohibits "Excessive Fines." Here's what SCOTUSblog had to say about how the argument went:
[Emphasis added.] Why does this matter in Oregon? It matters for two reasons. Two provisions from the Bill of Rights that have arguably not yet been incorporated are the right to a unanimous jury (which is not expressly found in the Bill of Rights) and, as mentioned above, the right to a Grand Jury indictment. I'm not going to talk about the first. This post is about whether the Grand Jury Clause applies to Oregon. But before we get to that, your first question should be, "who cares?" That should be your first question because Oregon's Constitution has its own Grand Jury clause, Article I, section V. It states that felony prosecutions require an indictment by Grand Jury, a waiver of indictment or a preliminary hearing. If the Oregon Constitution guarantees at least a preliminary hearing, why does it matter that the federal constitution does not? But the reason it matters is this: the US Constitution recognizes as elements of crimes -- often referred to as Blakely elements -- that the state constitution does not. These elements enhance or aggravate a crime, and they can significantly lengthen the defendant's period of incarceration. Because they are not recognized as elements of a greater offense under the Oregon Constitution (with some exceptions), they do not need to be submitted to a Grand Jury under the Oregon Conbstitution. In other words, the prosecutor can threaten to double the defendant's potential sentence by dashing off -- without any oversight by a Grand Jury or a magistrate -- a number of often ill-thought-out enhancement factors up to 60 days obtaining the indictment. But because these are elements of aggravated offenses under the US Constitution, if the Grand Jury clause was incorporated as part of the 14th Amendment, and therefore applicable to the state's, the current statutory notice scheme for enhancement factors would be unconstitutional. It would require some form of oversight, and as a result, we would see far fewer enhancements and thus shorter prison sentences. Put another way, if Hurtado v. California were overturned, then a large number of defendants would benefit. For one, it would decrease the prosecutor's leverage pre-trial. More than anything else -- even more than unanimous juries -- it would have a significant impact on the number of people in prison by generally reducing the length of prison sentences. (Yes, the prosecutor could still get upward departure factors past the GJ or past a magistrate, but as with anything else, the harder you make it for someone to get a widget, the fewer widgets they will get.) Since Justice Gorsuch appears to believe that partial incorporation doesn't pass the laugh test, maybe we should be thinking about challenging the use of enhancement facts that haven't been submitted to the Grand Jury and give him the opportunity to apply the last part of the 5th Amendment to Oregon criminal prosecutions. But I mentioned above that Hurtado "appeared" to hold that the GJ Clause doesn't apply to state prosecutions. Why the hedge? While it's true that Hurtado found that it does not violate Due Process when the state doesn't submit a charge to the Grand Jury, it does appear to say that Due Process would still require a preliminary hearing. The Hurtado court wrote, after a discussion of the importance and history of Grand Jury indictments:
In other words, a preliminary hearing in state court prosecution satisfies Due Process. If this is correct, enhancement factors that aren't subject to preliminary hearings, even if Hurtado isn't overturned, violate the US Constitution. This concept -- that maybe the right applies but not the full scope of that right -- was endorsed -- at least generally -- by Justice Kagan at the same oral argument mentioned above. Again, SCOTUSblog:
That sounds like exactly what Hurtado did. Maybe you don't get an indictment in state court but the protection that an indictment is supposed to provide is satisfied by a preliminary hearing. Using profile evidence as substantive proof of guiltby: Ryan Scott • November 19, 2018 • no comments It is not unusual, in a promoting prostitution case, that the defendant is in jail when the crimes allegedly occurred. Tape recorded jail calls will reveal that the defendant sought to have money placed on his books by a woman whose phone number is often used in backpage ads, which offer her services as an escort, though nothing expressly illegal is described in the ad itself. The money that is subsequently placed on defendant's books at the jail is, under the theory used to obtain an indictment, "pursuant to an agreement or understanding that the money, goods, property, services or something else of value is derived from a prostitution activity." In these cases, the alleged prostitute never testifies, and it is up to a police officer to testify as an expert that those backpage advertisements are consistent with "prostitution activity." This falls under the category of "profile evidence," because there is no direct evidence of this particular person exchanging sex for money, but rather, that she does things -- such as placing lawful backpage advertiesements -- that other people -- who did exchange sex for money -- also did. Is that enough to prove that the money placed on the books was derived from prostitution activity? It shouldn't be, and there are a number of ways to attack it. One way would be to move for a limitation on the jury's consideration of the officer's profile evidence testimony. Specifically, the jury should be prohibited from using the profile evidence as substantive evidence that she in fact prostituted herself. Case law in Oregon is thin or non-existent when it comes to the uses for which profile evidence can be put. Other jurisdictions have more developed case law in these areas. In 'AZ v. Escalante, (issued Sept 14, 2018), the Arizona Supreme Court -- under their version of the plain error standard -- reversed convictions based on the use of profile evidence as substantive proof of guilt, which is impermissible because "of the 'risk that a defendant will be convicted not for what he did but for what others are doing.' [Lee, 91 Ariz at 54.]" The AZ court wrote:
The court noted that such evidence can have value, but not as substantive evidence of guilt. If you're representing someone whose is charged with promoting or compelling prostitution because profile evidence is the only evidence the non-testifying witness engaged in acts of prostitution, use AZ v Escalante and the cases it cites to limit the jury's consideration of that evidence as substantive proof of prostitution activities. Then, move for a motion for judgment of acquittal at the close of the state's case. If you won the former, you'll likely win the latter. Oregon Appellate Court--September 12, 2018by: Rankin Johnson IV • September 20, 2018 • no comments CONTEMPT - Jurisdiction OFFENSIVE LITTERING COLLATERAL DNA TESTING - Prima facie case SENTENCING - Forfeiture EVIDENCE - Expert witnesses SENTENCING - Merger EVIDENCE - Relevance → continue reading...Oregon Innocence Project Announces Its First Exonerationby: Ryan Scott • September 19, 2018 • no comments Details here. See also this story from Oregon Public Broadcasting: Exonerations Raise Questions About Oregon's Controversial Jury System Time did a story here. The story prompted this editorial from the Oregonian. Narrow but important opinion regarding mens reaby: Ryan Scott • September 19, 2018 • no comments Today, in State v. Pryor, the COA re-affirmed that the mental state of "intentionally" applies to "serious physical injury" in a charge of assault I, rejecting the state's argument that some pre-Barnes case law saying the same thing should be overruled. At trial, the judge found that the pre-Barnes case law was already overruled by St v Barnes and instructed the jury that Mr. Pryor did not need to intend serious physical injury; he only needed to intend an injury that turned out be serious. Mr. Pryor's Assault I conviction was reversed and remanded for a new trial. The remaining convictions stood. The short opinion is worth reading, and it may be helpful in the following way. I have long argued that Barnes has been effectively overruled by St v Simonov, and that in assault II (or APSO or Criminal Mistreatment), a "knowing" mental state applies to the injury, serious or not. The alternative argument -- if Barnes is not overruled -- is that when the assault charge is generally charged "knowingly," criminal negligence applies to physical injury, so that if you punch someone (i.e., you don't have a weapon), resulting in serious physical injury, you at least have to be negligent as to that serious physical injury. The flukier the injury, the more helpful such an instruction would be. The state generally argues that Barnes is against us on the first issue (which is true), but on "criminal negligence" the prosecutor will likely argue that Barnes held that NO mental state applied to injury. In fact Barnes doesn't say that, but it's a common misunderstanding among both prosecutors and judges. Today's opinion -- Pryor -- makes plain the second argument is wrong. The Pryor court makes clear that the Barnes decision is strictly limited to whether "knowingly" applies to the injury. It says nothing about the application of any other mental states.
Pryor doesn't discuss criminal negligence because it doesn't need to. It's focus is on whether "intentionally" applies to serious physical injury. And, as mentioned above, it does. But in footnote 1 in that opinion, it has the key quote from Simonov that would support criminal negligence applying to assaults with a knowing mental state.
That footnote is satisfying in another way. When responding to the argument that Simonov changes the whole approach to mental states and elements, prosecutors frequently say, "no, it doesn't." They argue that Simonov is a property crime case and says nothing about "assault." That position is inconsistent with that quote of above that strongly implies ("the modern approach") that the rules have changed and the state needs to be prepared to recognize that. (Incidentally, when arguing against criminal negligence applying to $ value in theft or criminal mischief, the state says the Jones case also says no mental state applies. The state is wrong there too.) In sum, Pryor represents an important step towards obtaining accurate jury instructions where the standard instructions either mis-state the law or are otherwise incomplete. Racial Bias in Criminal Justiceby: Ryan Scott • September 19, 2018 • no comments A worthwhile read from the Washington Post can be found here. Here's a key paragraph that gets at something most everyone misunderstands:
What kind of person makes false rape accusations?by: Ryan Scott • September 17, 2018 • no comments An article on this topic here. "Study after study shows ex-prisoners would be better off without intense supervision"by: Ryan Scott • July 10, 2018 • no comments Details here. Key quote:
Why search warrants that were fine under Mansor (COA) may not be fine under Mansor (OSC)by: Ryan Scott • July 3, 2018 • no comments For two opinions that (mostly) reach the same conclusion, there are profound differences in the approaches taken by the COA and the Oregon Supreme Court. The following analysis is intended to highlight the practical differences in the two Mansor opinions, and why you should not assume that a cell phone or computer search warrant executed prior to June 28, 2018, is valid under the current interpretation of Article I, section 9. → continue reading...Oregon Supreme Court Affirms Mansor But Significant Difference in Approach than COA Tookby: Ryan Scott • June 29, 2018 • no comments I hope to have my own thoughts on the new Supreme Court opinion in Mansor up soon. Suffice it to say, for now, that you shouldn't be relying on the memos you wrote after the COA opinion was issued. The new opinion requires a significantly different analysis, which is better for some defendants but worse for others. Furthermore, boilerplate Mansor motions really will be worthless. Very fact-specific care will be needed each time you challenge an electronic devices search warrant on particularity grounds. In the meantime, please enjoy this analysis by Orin Kerr, who was heavily quoted in the opinion. Post-Carpenter, What's the Status of the 3rd-Party Doctrine?by: Ryan Scott • June 22, 2018 • no comments Orin Kerr's same-day take on the status of the third-party doctrine can be found here (question #9) Key quote:
As many of you may know, I've written about the limitations on the third-party doctrine under the Oregon Constitution ever since St v Ghim came out. OCDLA had a presentation on Ghim at the Winter Conference 2017, which is looking rather prescient right now. There is a lot for defense attorneys to work with now, under both Constitutions. Warrant needed for suspect's historical cell-site location databy: Ryan Scott • June 22, 2018 • no comments A jury selection irregularityby: Ryan Scott • June 6, 2018 • no comments In a good opinion from the Court of Appeals today, State v. Gollas-Gomez, the defendant's convictions were reversed because the trial court refused to remove for cause a juror who admitted that he would be partial in the state's favor. Both sides are guaranteed the right to an impartial jury. The issue was well-preserved, including the fact that the defendant used all of his peremptory challenges, a requirement for appealing a trial court's decision not to remove a juror for cause. And the juror was ultimately seated on the jury. Had the juror not been seated on the jury, because the defendant used one of his peremptories on the juror, it is likely, under current case law, the convictions would not have been reversed, because (1) no harm if the biased juror is not seated on the jury and (2) defendant does not have a due process right to peremptory challenges. This puts defense counsel in an awkward position. If the judge refuses to remove a juror for cause, the defendant can still remove the juror (to avoid poisoning the trial) but gives up the issue for appeal. On the other hand, it's just one juror, and who wouldn't want to good basis for reversal, especially on multiple measure 11 charges, even if the only way to do so is to leave the juror on. There may be a way around this. The defendant does not have a due process right to peremptory challenges, but if peremptory challenges exist, the defendant has a right to the same number of challenges as the state. There is no reason the state should have an advantage. After all, if a statute or UTCR expressly gave the state more peremptory challenges at the outset than the defendant, that would be a clear constitutional violation. Why should it be any different if the same result is achieved by an erroneous ruling by the court that effectively reduces the number of challenges a defendant has? New SCOTUS opinion on auto exceptionby: Ryan Scott • May 29, 2018 • no comments Key quote:
Opinion is here. And here is Orin Kerr's hot take on the curtilage issues the opinion raises. Oregon Supreme Court - April 26, 2018by: Rankin Johnson IV • May 15, 2018 • no comments
Significant Forensic Cell Phone Search at Borderby: Ryan Scott • May 14, 2018 • no comments Fourthamendment.com summary here. Key Fob search opinionby: Ryan Scott • May 14, 2018 • no comments Headline from fourthamendment.com: W.D.Tex.: Removal of def’s key fob to press the buttons to locate car was a search that violated a REP in def’s pants pocket Their summary is here. Rental Car. Driving not on rental agreement. Reasonable expecation of Privacy?by: Ryan Scott • May 14, 2018 • no comments SCOTUS opinion here. Summary from SCOTUSblog here. Orin Kerr's analysis here. From the headnotes:
When the Lawyer Concedes Guilt Over Defendant's Objectionby: Ryan Scott • May 14, 2018 • no comments That's a no-no. Summary of SCOTUS's capital opinion here. Next 20 Articles _________________________ |
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________________________________________________ Oregon Supreme Court, April 18, 2019by: Rankin Johnson IV • April 24, 2019 • no comments SEARCH AND SEIZURE — Property held by third parties RIGHT TO PRESENCE AT TRIAL — Voluntariness and waiver → read the full summaries...Oregon Appellate Court, April 10, 2019by: Rankin Johnson IV • April 10, 2019 • no comments MANDATORY MINIMUM SENTENCES - Proportionality APPEAL AND REVIEW - New-trial motions RIGHT TO SELF-REPRESENTATION- Self-representation at trial SELF-INCRIMINATION - Invocation of the right to counsel RIGHT TO SELF-REPRESENTATION- Self-representation at trial → read the full summaries...Oregon Supreme Court - April 4, 2019by: Rankin Johnson IV • April 5, 2019 • no comments VOUCHING — Indirect evidence of witness truthfulness POST-CONVICTION RELIEF — Untimely petitions → read the full summaries...Oregon Appellate Court--March 27, 2019by: Rankin Johnson IV • March 27, 2019 • no comments SEARCH AND SEIZURE - Officer safety EXTREME EMOTIONAL DISTURBANCE - Evidence relevant to defense APPELLATE PROCEDURE - Incomplete record → read the full summaries...Oregon Appellate Court--March 13, 2019by: Rankin Johnson IV • March 21, 2019 • no comments IDENTITY THEFT - Using another person's PIN in jail WAIVER - Waiver induced by fear of death penalty → read the full summaries...Oregon Supreme Court - February 28, 2019by: Rankin Johnson IV • March 12, 2019 • no comments EVIDENCE — Hearsay, official records, and business records. FAILURE TO APPEAR — 'Released from custody' element of offense POST-CONVICTION RELIEF — Statute of limitations escape clause → read the full summaries...Oregon Appellate Court--February 27, 2019by: Rankin Johnson IV • March 1, 2019 • no comments ATTEMPT AND SOLICITATION - Defined and distinguished MIRANDA - Defendant's understanding of Miranda warnings → read the full summaries...Oregon Appellate Court--February 21, 2019by: Rankin Johnson IV • February 25, 2019 • no comments PROBATION - Authority of probation officer CIVIL COMMITMENT - Results of recommitment APPEAL AND REVIEW - Appeal from municipal court PARTIAL RESPONSIBILITY - Jury instructions JUVENILE DELINQUENCY - Permissible probation terms → read the full summaries...Oregon Appellate Court--February 13, 2019by: Rankin Johnson IV • February 15, 2019 • no comments RIGHT TO PRESENCE AT TRIAL - Conduct constituting waiver SELF-INCRIMINATION - Equivocal invocation MENTAL STATES - knowledge required for possession of methamphetamine conviction → read the full summaries...Oregon Appellate Court--January 30, 2019by: Rankin Johnson IV • February 12, 2019 • no comments SPEEDY TRIAL - Time excluded from calculation THEFT - Theft by receiving SENTENCING - Trial penalty → read the full summaries...Oregon Supreme Court - January 31, 2019by: Rankin Johnson IV • February 2, 2019 • no comments CONSTITUTIONAL LAW — Statutes reducing sentencing laws adopted by referendum RIGHT TO PRESENCE AT TRIAL — Voluntariness and waiver → read the full summaries...Oregon Appellate Court--January 24, 2019by: Rankin Johnson IV • January 29, 2019 • no comments SEARCH AND SEIZURE - Basis to extend stop → read the full summaries...Oregon Appellate Court--January 9, 2019by: Rankin Johnson IV • January 16, 2019 • no comments SENTENCING - Marijuana use EVIDENCE - Other-bad-acts THEFT - Theft by selling FITNESS FOR TRIAL - Findings of fact → read the full summaries...Oregon Appellate Court--January 3, 2019by: Rankin Johnson IV • January 8, 2019 • no comments FINES, FEES, AND COSTS - Ability to pay APPEAL AND REVIEW - Proceedings on remand SEARCH AND SEIZURE - Officer safety → read the full summaries...Oregon Appellate Court--December 19, 2018by: Rankin Johnson IV • December 20, 2018 • no comments APPEAL AND REVIEW - Motions to correct the judgment POST-CONVICTION RELIEF - Natural-and-probable-consequences instruction SENTENCING - Merger → read the full summaries...________________________________________________ |
