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2012-12-21T00:20:45Z

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''Read the full article for details about the following new cases:''
* Hearsay - Statement Against Penal Interest - Availability
* Stop - Free to Leave
* Restraining Order Hearing - Right to Cross Examine
* Probation - Community Service - Consent of Defendant Required

==='''Hearsay - Statement Against Penal Interest - Availability'''===

The appellate court revisits this case in light of [http://www.publications.ojd.state.or.us/S058406.pdf ''Cazares-Mendez''] and reaffirms. The issue is when the confession of a third party, offered as hearsay evidence, is admissible under the hearsay exception for statements against penal interest. ''Cazares-Mendez'' ruled that a statement against penal interest is admissible, even where the declarant is available, if "corroborating circumstances clearly indicate the trustworthiness of the statement." In ''Cazares-Mendez ''there were ''multiple ''witnesses who had heard ''detailed ''confessions that related ''particulars ''that were ''peculiar ''to the crime." Thus, the evidence should have been admitted. This was a murder case where the defense wanted to offer evidence that a serial killer confessed to his cellmate that he committed the crime. But the confession lacked details, was subsequently retracted, was unconfirmed by any circumstantial evidence and came from a "singularly untrustworthy declarant". Affirmed.
[http://www.publications.ojd.state.or.us/A136945.pdf State v. Anthony] | |

===Stop - Free to Leave===

Defendant was not stopped when an officer walked up to him on the street, asked if he could talk to him and then asked for consent to do a patdown. Consistent with [http://www.publications.ojd.state.or.us/S057189.htm ''State v. Ashbaugh''], there is no stop unless there is a show of authority such that a reasonable person would feel restrained. The court finds that there was even less of a show of authority in this case than in ''Ashbaugh ''because here, the officer was alone, was making first contact and was casual and noncoercive.
[http://www.publications.ojd.state.or.us/A144173.pdf ''State v. Kinkade''] | |

===Restraining Order Hearing - Right to Cross Examine===

The court reverses and remands for further proceedings because the court did not allow defendant's attorney to cross examine the DHS witness who testified for the petitioner. "You know what, we ran out of time" said the judge. The court is unimpressed with that justification for denying cross:

<blockquote>

''The lack of a "fundamentally fair" hearing. . . is apparent.''

</blockquote>

''[http://www.publications.ojd.state.or.us/A147428.pdf Hemingway and Mauer]'' | |

==='''Probation - Community Service - Consent of Defendant Required'''===

Community service may not be imposed as a condition of probation without the defendant's "consent to donate labor for the welfare of the public." ORS 137.128(1). Remanded for resentencing.
[http://www.publications.ojd.state.or.us/A144850.pdf ''State v. Everitt''] | |
{{wl-publish: 2012-01-04 21:00:00 -0800 | abassos }}

Blog:Case Reviews/Oregon Appellate Court 01-05-12 - Revision history

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