A Book from the Library of Defense
Namespaces
Variants
Actions

Library Collections

Webinars & Podcasts
Motions
Disclaimer

Welcome to The Library

From OCDLA Library of Defense
(Difference between revisions)
Jump to: navigation, search
 
(238 intermediate revisions by 9 users not shown)
Line 1: Line 1:
__NOTOC__
+
{{DISPLAYTITLE:OCDLA Library of Defense - Latest Case Reviews}}__NOTOC__
<table width="98%"; noborder cellpadding=10 cellspacing=4>
+
<table class="no-cellpadding no-cellspacing">
 
<tr>
 
<tr>
<td valign="top" width="56%" style="background-color: #FFFFFF; border: 4px solid #16759A;">
+
<td style="vertical-align: top;" id="main-blog">
<h2>'''A Digital Manual For Oregon Criminal Defense'''</h2>  
+
<h2>Blog</h2>
 
+
{{Special:Wikilog/Blog:Main|limit=3|view=summary}}
[[File:law-books.jpg|left|x200px]]
+
<h2>Case Reviews</h2>
 
+
{{Special:CaseReviews/15}}  
The OCDLA Library of Defense is a digital manual for criminal defense built by the collective contributions of OCDLA members. Ultimately, it will contain every law, every case, every good idea, every expert and every resource an Oregon defense attorney might need.  But only if you help us out.
+
_________________________
 
+
</td>
If you visit a page on this website that is missing a case or has a typo, please [[How_To_Edit|edit the page]]. Before editing any pages for the first time, you may want to visit the [[How_To_Edit|how to edit]] page.
+
<td style="vertical-align: top;" id="main-cases">
 
+
{{Special:FeaturedContent/100}}
If you have any questions or suggestions, please contact Alex Bassos at abassos@gmail.com
+
________________________________________________
 
+
<table class="gallery">
<h2>'''The Library'''</h2>
+
<tr>
{| cellpadding="3" style="background-color: #FFFFFF;"
+
<td>
 
+
[[File:Police.jpg|x70px|link=Search_and_Seizure|center|border]]
| '''[[Crimes|Crimes]]'''<br>[[Crimes#Measure_11_Crimes|Measure 11]], [[Crimes#Drug_Crimes|Drugs]], [[Crimes#Sex_Crimes|Sex Crimes]], [[Crimes#Homicide|Homicide]], [[Crimes#Property_Crimes|Property]], [[DUII|DUII]], [[Crimes#Child_Abuse_Crimes|Child Abuse]], [[Crimes|Other Crimes]]
+
</td>
| '''[[Evidence_Code|Evidence Code]]'''<br> [[Evidence_Code#Procedure|Procedure]], [[Evidence_Code#Relevance|Relevance]],  [[Evidence_Code#Privileges|Privileges]], [[Evidence_Code#Examining_Lay_Witnesses|Lay Witnesses]], [[Evidence_Code#Examining_Expert_Witnesses|Experts]], [[Evidence_Code#Hearsay|Hearsay]], [[Evidence_Code#Physical_Evidence|Physical Evidence]]
+
<td>
| '''[[Self-Incrimination|Self-Incrimination]]'''<br>[[Evidentiary_Burdens|Evidentiary Burdens]], [[State_Compulsion|State Compulsion]], [[Custody/Compelling_Circumstances|Custody/Compelling Circumstances]], [[Right_to_Silence|Right to Silence]],  [[Impeachment|Impeachment]]
+
[[File:Blood43.jpg|x70px|link=Forensic_Evidence|center|border]]
|-
+
</td>
| '''[[Search_and_Seizure|Search and Seizure]]'''<br>[[Search_and_Seizure#Did_the_State_Infringe_Upon_a_Privacy_or_Possessory_Interest_of_Defendant.3F|Privacy Interest]], [[Search_and_Seizure#Was_the_defendant_stopped.3F|Stops]],[[Search_and_Seizure#Was_Defendant_Arrested.3F|Arrests]],  [[Search_and_Seizure#Did_someone_Consent_to_the_search.3F|Consent]],  [[Search_and_Seizure#Was_there_an_exception_to_the_Warrant_Requirement.3F|Warrant Exceptions]], [[Search_and_Seizure#Was_there_an_exception_to_the_Warrant_Requirement.3F|Suppression Exceptions]],  [[Search_and_Seizure#Was_there_a_Search_Warrant.3F|Search Warrants]]
+
<td>
| '''[[Forensic_Evidence|Forensic Science]]'''<br>[[Ballistics|Ballistics]], [[Bitemarks|Bitemarks]], [[Bloodstain_Pattern_Analysis|Bloodstains]], [[DNA|DNA]], [[Eyewitness_Identification|Eyewitness ID]],  [[Fingerprints|Fingerprints]], [[Handwriting_Identification|Handwriting ID]], [[Polygraphs|Polygraphs]],  [[Shaken_Baby_Syndrome|Shaken Baby]]
+
[[File:Courtroom.jpg|x70px|link=Evidence_Code|center|border]]
| '''[[Immigration|Immigration]]'''<br>[[Padilla|Understanding Padilla]], [[Aggravated_Felonies|Aggravated Felonies]],  [[Inadmissibility|Inadmissibility]], [[Removability|Removability]], [[Moral_Turpitude|Moral Turpitude]], [[Naturalization|Naturalization]], [[Juvenile_Defendants|Juveniles]], [[U-Visas|U-Visas]], [[Glossary|Glossary]]
+
</td>
|-
+
</tr>
| '''[[Mental_States|Mental States]]'''<br>[[Civil_Commitments|Civil Commitments]], [[Fitness_to_Proceed|Fitness to Proceed]], [[Criminal_Negligence|Criminal Negligence]], [[Testing|Testing]]...
+
<tr>
| '''[[Oregon_Constitution|Oregon Constitution]]'''<br>[[Speedy_Trial|Speedy Trial]],[[Right_to_Counsel|Right to Counsel]], [[Confrontation/Cross_Examination|Confrontation/Cross Examination]]
+
<td>
|[[File:BofRs.jpg|'''[[Trial_Procedure|Trial Procedure]]'''<br>[[Trial_Procedure#Charging_Decision|Charging Decision]], [[Trial_Procedure#Discovery|Discovery]], [[Trial_Procedure#Right_to_Counsel|Right to Counsel]], [[Trial_Procedure#Pre-Trial_Motions|Pretrial Motions]]|thumb]]
+
'''[[Search_and_Seizure|Search and Seizure]]'''<br/>
|-
+
[[Search_and_Seizure#Did_the_State_Infringe_Upon_a_Privacy_or_Possessory_Interest_of_Defendant.3F|Privacy Interest]],
| '''[[Defenses|Defenses]]'''<br>[[Alibi]], [[Defenses#Choice_of_Evils_and_Necessity|Necessity]], [[Defenses#Speedy_Trial|Speedy Trial]]
+
[[Search_and_Seizure#Was_the_defendant_stopped.3F|Stops]],[[Search_and_Seizure#Was_Defendant_Arrested.3F|Arrests]],  [[Search_and_Seizure#Did_someone_Consent_to_the_search.3F|Consent]],  [[Search_and_Seizure#Was_there_an_exception_to_the_Warrant_Requirement.3F|Warrant Exceptions]], [[Search_and_Seizure#Was_there_an_exception_to_the_Warrant_Requirement.3F|Suppression Exceptions]],  [[Search_and_Seizure#Was_there_a_Search_Warrant.3F|Search Warrants]]
| '''[[Extradition|Extradition]]'''<br>
+
</td>
| '''[[Veterans_and_Military_Service|Veterans and Military Service]]'''<br>Created by Jess Barton.
+
<td>
|-
+
'''[[Forensic_Evidence|Forensic Science]]'''<br>[[Ballistics|Ballistics]], [[Bitemarks|Bitemarks]], [[Bloodstain_Pattern_Analysis|Bloodstains]], [[DNA|DNA]], [[Eyewitness_Identification|Eyewitness ID]],  [[Fingerprints|Fingerprints]], [[Handwriting_Identification|Handwriting ID]], [[Polygraphs|Polygraphs]],  [[Shaken_Baby_Syndrome|Shaken Baby]]
| '''[[Dependency_category|Dependency]]'''<br>[[Removal|Removal]],[[Permanency|Permanency]], [[Termination_of_Parental_Rights|Termination of Parental Rights]], [[Temporary_Custody|Temporary Custody]], [[Petition|Petition]]...
+
</td>
| '''[[Investigation|Investigation]]'''<br>[[Investigation#Ethics|Ethics]],[[Investigation#Surveillance|Surveillance]], [[Investigation#Locating_Witnesses|Locating Witnesses]],[[Investigation#Interviewing|Interviewing]], [[Investigation#Drug_Cases|Drug Cases]]
+
<td>
| '''[[Appeals,_PCR_%26_Habeas|Appeals/PCR/Habeas]]'''<br>[[Post-Conviction_Relief|Post Conviction Relief]]
+
'''[[Evidence_Code|Evidence Code]]'''<br> [[Evidence_Code#Procedure|Procedure]], [[Evidence_Code#Relevance|Relevance]],  [[Evidence_Code#Privileges|Privileges]], [[Evidence_Code#Examining_Lay_Witnesses|Lay Witnesses]], [[Evidence_Code#Examining_Expert_Witnesses|Experts]], [[Evidence_Code#Hearsay|Hearsay]], [[Evidence_Code#Physical_Evidence|Physical Evidence]]
|-
+
</td>
| '''[[Sentencing|Sentencing]]'''<br>[[Sentencing#Same_Criminal_Episode|Same Criminal Episode]],[[Sentencing#Merger|Merger]], [[Consecutive_Sentences|Consecutive Sentences]], [[Sentencing#Mandatory_Minimum_Laws|Mandatory Minimum Laws]], [[Sentencing#Probation|Probation]]
+
</tr>
| '''[[Trial_Skills_category|Trial Skills]]'''<br> Not Yet Created
+
<tr>
| '''[[Delinquency]]'''<br> Not Yet Created
+
<td>
|-
+
[[File:Passport.jpg|x70px|link=Immigration|center|border]]
| colspan=2 |
+
</td>
|}
+
<td>
<h2>'''The Pool'''</h2>
+
[[File:Police-line.jpg|x70px|link=Crimes|center|border]]
 
+
</td>
This spot will be the entry point to the OCDLA online forum. 
+
<td>
 
+
[[File:Interrogate2.jpg|x60px|link=Self-Incrimination|center|border]]
[[File:Fish.jpg|thumb|left|link=]]
+
</td>
<td valign="top" rowspan=2 style="background-color: #FEFDF9; border: 4px solid #16759A;">
+
</tr>
 
+
<tr>
<h2>'''Recent Articles''' | ''{{CURRENTMONTHNAME}} {{CURRENTDAY}}, {{CURRENTYEAR}}''</h2>
+
<td>
 
+
'''[[Immigration|Immigration]]'''<br>[[Padilla|Padilla]], [[Aggravated_Felonies|Agg Felonies]], [[Inadmissibility|Inadmissibility]], [[Removability|Removability]], [[Moral_Turpitude|Moral Turpitude]][[Naturalization|Naturalization]], [[Juvenile_Defendants|Juveniles]], [[U-Visas|U-Visas]]
* [https://libraryofdefense.org/content/improper-joinder-demurrer-follow Improper Joinder Demurrer Follow-Up] | Ryan Scott
+
</td>
* [https://libraryofdefense.org/content/class-victims-animals-dead-uninjured The Class of Victims] | Ryan Scott
+
<td>
* [https://libraryofdefense.org/content/criminal-defense-news-week-18 News of the Week] | Stacy Du Clos
+
'''[[Crimes|Crimes]]'''<br>[[Crimes#Measure_11_Crimes|Measure 11]], [[Crimes#Drug_Crimes|Drugs]], [[Crimes#Sex_Crimes|Sex Crimes]], [[Crimes#Homicide|Homicide]], [[Crimes#Property_Crimes|Property]], [[DUII|DUII]], [[Crimes#Child_Abuse_Crimes|Child Abuse]], [[Crimes|Other Crimes]]
* [https://libraryofdefense.org/content/equal-protection-violations-bulk-restitution-indigency-and-probation-revocation Equal Protection, Restitution and Indigency] | Rankin Johnson III
+
</td>
* [https://libraryofdefense.org/content/self-fulfilling-prophecy-buzzed-driving-and-duii Self Fulfilling Prophecy: Buzzed Driving and DUII] | Richard Oberdorfer
+
<td>
* [https://libraryofdefense.org/content/silver-lining-mcdaniel The Silver Lining in McDaniel] | Jesse Merrithew
+
'''[[Self-Incrimination|Self Incrimination]]'''<br>[[Evidentiary_Burdens|Evidentiary Burdens]], [[State_Compulsion|State Compulsion]], [[Custody/Compelling_Circumstances|Custody/Compelling Circumstances]], [[Right_to_Silence|Right to Silence]],  [[Impeachment|Impeachment]]
* [https://libraryofdefense.org/content/obliterating-id-marks-firearm Obliterating ID Marks on a Firearm] | Ryan Scott
+
</td>
 
+
</tr>
<h2>'''This Week's Cases'''</h2>
+
<tr>
 
+
<td>
[[File:Goaty.JPG|thumb|right]]
+
[[File:Brain3.jpg|x70px|link=Mental_States|center|border]]
 
+
</td>
<h4>Animal Abuse</h4>'''''Goats are Victims Too'''''
+
<td>
 
+
[[File:Defense.jpg|x70px|link=Defenses|center|border]]
Each individual animal identified with a count of animal abuse will qualify as a separate victim. Here, twenty counts of second degree animal abuse could not be merged into a single conviction because each separate count “identified a different animal and charged conduct by defendant toward that animal.” [http://www.publications.ojd.state.or.us/Publications/A145386.pdf State v. Nix] 
+
</td>
 
+
<td>
<h4>Inventory</h4>'''''Pandora’s Closed Container of Exceptions'''''
+
[[File:Constitution.jpg|x70px|link=Oregon_Constitution|center|border]]
 
+
</td>
The Portland police inventory policy for opening closed containers designed to contain valuables (1) only applies to items in the possession of a person placed in custody, and (2) must occur prior to placing such person into a holding room or police vehicle. Here, defendant was a passenger in a stopped car, so he was stopped, but he was not "in custody" for purposes of inventory because he was only stopped as a witness. The state could not use the arrested driver's constructive possession of the bag to justify the search because the driver was already in the patrol car.
+
</tr>
 
+
<tr>
The state’s arguments that defendant lost his privacy rights in his laptop bag are unpersuasive to the court:
+
<td>
 
+
'''[[Mental_States|Mental States]]'''<br>[[Civil_Commitments|Civil Commitments]], [[Fitness_to_Proceed|Aid & Assist]], [[Utilizing_a_GEI_Defense|GEI]], [[Disordered_Mental_State_Strategy|Disordered Mental State]], [[Mental_States#Mental_States_Required_for_Conviction|Mens Rea]], [[Testing|Testing]], [[DSM|DSM-IV]]
*A denial of ownership does not itself establish an intention to relinquish all interests in the property.  Defendant had a continuing privacy interest in his bag even though he initially denied owning it, then said he was holding onto it for a friend.
+
</td>
*Officers may conduct a search to determine the owner of lost property only when the property is actually lost, as in abandoned.  There is no exception to the warrant requirement that allows officers to open a closed container in order to determine whether the contents are stolen.
+
<td>
*A defendant only loses his privacy interest to stolen goods that are in plain view.  Here, officers suspected, but did not know that the laptop bag contained stolen goods.
+
'''[[Defenses|Defenses]]'''<br>[[Alibi|Alibi]], [[Choice_of_Evils_and_Necessity|Necessity]], [[Speedy_Trial|Speedy Trial]], [[Self_Defense|Self Defense]]
 
+
</td>
[http://www.publications.ojd.state.or.us/Publications/A143095.pdf State v. Rowell]
+
<td>
 
+
'''[[Oregon_Constitution|Oregon Constitution]]'''<br>[[Speedy_Trial|Speedy Trial]], [[Right_to_Counsel|Right to Counsel]], [[Confrontation/Cross_Examination|Confrontation]], [[Oregon_Constitution#Section_12:_Double_jeopardy.3B_compulsory_self-incrimination|Double Jeopardy]], [[Oregon_Constitution#Section_20:_Privileges_and_Immunities_of_Citizens|Equal Privileges]], [[Ex_Post_Facto|Ex Post Facto]], [[Oregon_Constitution#Section_11:_Rights_of_Accused_in_Criminal_Prosecution|Venue]]
<h4>Stops</h4>'''''No Stop If Officer Says Free to Leave'''''
+
|'''[[Trial_Procedure|Trial Procedure]]'''<br>[[Trial_Procedure#Charging_Decision|Charging Decision]], [[Trial_Procedure#Discovery|Discovery]], [[Trial_Procedure#Right_to_Counsel|Right to Counsel]], [[Trial_Procedure#Pre-Trial_Motions|Pretrial Motions]]
 
+
</td>
A stop occurred when police asked for defendant’s identification, wrote down the defendant’s information on his hand and told the defendant that he had been seen engaging in strange behavior. However, the stop ended when a police officer informed defendant that he was free to leave, even though the police officer had just told the defendant to stand in the search position with his hands behind his back. Therefore, the evidence obtained from defendant’s consent to search after that point was not the product of an illegal stop.  [http://courts.oregon.gov/Publications/A143570.pdf State v. Canfield]
+
</tr>
 
+
<tr>
<h4>Speeding</h4>
+
<td>
 
+
[[File:Extradition.jpeg|x70px|link=Extradition|center|border]]
A person may be found guilty of speeding, under ORS 811.111, if the person either drives above the statutorily designated speed limit for that type of road or drives above a posted speed limit that is different from the designated speeds. Defendant had argued, based on the language of the statute, that if the designated speed is posted then the statute wouldn’t apply.  The court rejects that construction: “under that interpretation, the statutory speeds. . .could not be both posted and enforced.” [http://www.publications.ojd.state.or.us/Publications/A143367.pdf State v. Patrick]  
+
</td>
 
+
<td>
<h4>Juvenile Dependency</h4>'''''Hearsay Statements by Step-Child to DHS Worker Are Admissible Under Party-Opponent Exception'''''
+
[[File:Support_our_veterans.jpg|x70px|link=Veterans_and_Military_Service|center|border]]
 +
</td>
 +
<td>
 +
[[File:Prison3.jpg|x70px|link=Sentencing|center|border]]
 +
</td>
 +
</tr>
 +
<tr>
 +
<td>
 +
'''[[Extradition|Extradition]]'''<br>
 +
</td>
 +
<td>
 +
'''[[Veterans_and_Military_Service|Veterans and Military Service]]'''<br>Created by Jess Barton.
 +
</td>
 +
<td>
 +
'''[[Sentencing|Sentencing]]'''<br>[[Sentencing#Same_Criminal_Episode|Criminal Episodes]],[[Sentencing#Merger|Merger]], [[Consecutive_Sentences|Consecutive Sentences]], [[Sentencing#Mandatory_Minimum_Laws|Mandatory Minimums]], [[Sentencing#Probation|Probation]], [[Sentencing#Restitution|Restitution]], [[Sentencing#Collateral_Consequences|Collateral Consequences]]
 +
</td>
 +
</tr>
 +
</table>
  
When DHS offers a child’s out-of-court statements in a dependency case, they are admissible as non-hearsay statements of a party-opponent under OEC 801(4)(b)(A), because the child is a party adverse to  DHS. This applies to step-children too because DHS puts their step-child/parent relationship at risk.  [http://www.publications.ojd.state.or.us/Publications/A150208.pdf DHS v. JG]
+
</td></tr>
 +
</table>

Latest revision as of 08:57, August 5, 2023

Blog


Challenging Language from Standard Instruction 1005

by: Ryan Scott • October 30, 2024 • no comments

In every criminal trial in Oregon for decades, the jury has likely been told the following:

"Generally, the testimony of any witness whom you believe is sufficient to prove any fact in dispute."

You should object to that language and, if the judge does not want to strike it outright, ask for this alternative:

"Generally, the testimony of any witness whom you believe is sufficient to prove any fact in dispute. If the fact is necessary to proving an element of the crime, you must believe the witness beyond a reasonable doubt with regard to that fact."

The basis for the objection is this. As currently constructed, the instruction – or at least a reasonable interpretation of it -- undermines the requirement that the state prove its case beyond a reasonable doubt. It would permit a juror to find against the defendant when it believes the complainant on a material element of the crime, but does not believe the complainant beyond a reasonable doubt. See State v. Purrier, 265 Or App 618, 621, 336 P3d 574 (2014)(state’s argument “incorrectly describe[ed] the jury’s task as choosing which of two versions of events the jury finds more believable” and was confusing and misleading because it “omit[ed] the possibility, among others, that the jury would find the state’s version more plausible, yet not be convinced beyond a reasonable doubt.”)

The instruction is also unduly slanted towards the state, which is the only party that must actually prove any fact in dispute (assuming no affirmative defense on the part of the defendant.) See State v Martin, 290 Or App 851, 417 P3d 505 (2018)(prohibiting even legally correct jury instruction when it was unduly slanted in favor of one party.)

Similarly, because only one side has the burden in this case, telling the jury what it takes to find a fact in dispute has been proven is an inappropriate comment on the evidence.

“A trial court is not permitted to comment on the evidence. Or. R. Civ. P. 59 E; Or. Rev. Stat. § 136.330(1). Or. R. Civ. P. 59 E is applicable in criminal cases. A court impermissibly comments on the evidence when it gives a jury instruction that tells the jury how specific evidence relates to a particular legal issue. A court also impermissibly comments on the evidence if it instructs the jury to draw an inference against the defendant that shifts the burden of proof from the state to the defendant. An inference cannot relieve the state of its burden of proving each element of the crime beyond a reasonable doubt."

State v. Hayward, 327 Or 397 (1998)

The alternative instruction because it is a correct statement of the law and would ameliorate the risk of its misuse. Because the standard instruction relates to a factual finding, a juror may not recognize how it relates to the "beyond a reasonable doubt" instruction, which relates to a finding of guilt. This amendment ameliorates that problem somewhat.

An Easy Demurrer (Failure to Register as a Sex Offender)

by: Ryan Scott • October 4, 2024 • no comments

Prosecutors insist that cases should be routinely joined because it promotes judicial efficiency. But the real reason is that it prejudices the defendant. It may not prejudice the defendant enough to merit severance, but it always increases the chance the jury would decide the case on something other than the merits of the state's argument.

Whenever possible, however, a defense attorney should seek to punish the state by demurring to an indictment that is obviously improperly joined. After all, the prosecutor isn't really inconvenienced by severance of charges that shouldn't have been joined in the first place. But if they have to go back to Grand Jury because the indictment was dismissed, maybe they won't be quite so unfairly aggressive next time.

What follows is an example where the indictment will always be subject to a demurrer.

If you have a client that has at least two charges in one indictment, and one of the charges is "failure to register as a sex offender," that indictment is vulnerable. Why? Because there is no legal way that a failure to register charge is every properly joined with any charge other than another failure to register.

So if your client is pulled over, and a gun or drugs are found in the car, and they didn't register on their birthday six months earlier, if all those charges are in one indictment, they're improperly joined.

Or maybe your client is charged with a rape in the third degree, and, oops, he didn't register from a prior conviction for rape in the third degree, putting the new R3 and a FTR on the same indictment is not legal.

Wait, you say! Maybe that's a motion to sever, but I've got that R3/FTR indictment in front of me and the indictment alleges Poston language ("same or similar" or "common scheme or plan", so how can I get past that?

Here's the answer:

Although “it usually is sufficient for the state to allege the basis for joinder by using the language of the joinder statute,” Warren, 364 Or at 120, the alleged basis for joinder must “be possible, given the offenses and facts alleged.” Warren, 364 Or at 122.

And there is no theory where FTR is "same or similar" to anything other than another FTR. (See Garrett and Gialoretto for the analysis of same or similar.) And what possible scheme or plan could be furthered by failing to register?

Proper joinder is legally impossible. File that demurrer. Make them go back to Grand Jury or make you a better offer.

Antoine Demurrers and Election

by: Ryan Scott • September 9, 2024 • no comments

There are a number of cases currently at the Court of Appeals where one of the claims is the denial of an Antoine demurrer/motion to elect. For some, no demurrer was filed at the trial level and it's just the denial of a motion to elect. In theory, we could end up getting a decision any week, though I think this issue is of such importance, and applicable to so many cases, that the COA will be very careful with the first one they issue.

I’m writing this post because I want to highlight the arguments the AG’s office is making at the COA and a couple of things you can do at the trial level to give your appellate attorney the ammunition for the best possible response.

First, one argument the AG’s office is making is that there really is no legal basis for ever compelling the state to elect before they’ve rested and maybe not even then. There argument is that in the most notable cases from the past few years (Payne, Antoine direct, Antoine PCR, Justice Duncan’s concurrence), the language regarding elections are just dicta and not binding on trial courts.

It’s partially true that, in a couple of those opinions, the state's failure to elect was discussed in detail but not actually necessary to the final outcome. (I would note that the authors of the Payne opinion and the OSC Antoine concurrence are both current justices, so the AG’s argument faces a serious headwind when one of these cases get to the OSC.) However, it’s not true in the direct appeal in Antoine, where the COA held that the defendant must also argue a motion to elect if he has argued an Antoine demurrer. (I’m simplifying a bit.) The defendant's failure to file a motion to elect was fatal to the appeal and therefore self-evidently essential to the final outcome. Consequently, the AG’s office has backed down slightly, arguing that a standalone motion to elect doesn’t really exist in Oregon law. It only exists as an alternative to a definite and certain demurrer.

I strongly suspect the state will lose that argument, but you can moot it out if you always file an Antoine demurrer along with your motion to elect.

Second, the state will argue that if you want to prevail on a motion to elect before trial, you must explain the harm that will arise if the state does not elect. Of course, the harm may not be obvious until the state elects, but, still, if you can identify some harm, why not do so?

Let’s take a sex case involving thirty allegations but only ten counts. There is enough factual distinction (location, age, etc.) between the allegations that the state could elect if forced. But, as the state says, your defense is all or nothing. You aren’t admitting any of them happened. So what difference does an election make?

I would say this. In cross-examination, you aren’t going to challenge every single allegation. After all, you don’t want the complaining witness to have an opportunity to repeat every allegation. You want to target a specific sample of counts to undermine their credibility. In that situation, you will want to target those allegations – if you know them – that line up with certain counts.

Instead, the state wants to play whac-a-mole. You have a good argument that one incident couldn’t have happened the way the witness says, they’ll just switch out that allegation in their final election. This is a serious fairness and due process problem. Before trial, the state would have said X is the allegation described in count five. You show X almost certainly didn’t happen so halfway through trial, the state decides that count 5 is now Y.

It's also a GJ problem. There is a rebuttable presumption that when the state elects, it mirrors what the GJ found. When the state elects halfway through trial, it’s highly unlikely that’s true.




Next 20 Articles

Case Reviews


Oregon Supreme Court, October 24th, 2024

by: Rankin Johnson

FIREARMS - Offenses carrying firearm prohibition

→ read the full summaries...

Oregon Court of Appeals, October 23rd, 2024

by: Rankin Johnson

TRIAL PROCEEDINGS - Request for continuance

SEARCH AND SEIZURE - Consent

-

UNLAWFUL USE OF A VEHICLE - Mens rea

→ read the full summaries...

Oregon Court of Appeals, October 16th, 2024

by: Rankin Johnson

SENTENCING - Jury findings

→ read the full summaries...

Oregon Court of Appeals, October 9th, 2024

by: Rankin Johnson

EVIDENCE - Vouching

DUII - Refusal to submit to a breath test

DISORDERLY CONDUCT - Obstructing traffic

JOINDER, SEVERANCE, AND ELECTION - Sufficient allegations

→ read the full summaries...

Oregon Supreme Court, October 3rd, 2024

by: Rankin Johnson

BAIL AND RELEASE - 60-day rule

→ read the full summaries...

Oregon Supreme Court, September 26th, 2024

by: Rankin Johnson

MENS REA - Extreme indifference

→ read the full summaries...

Oregon Court of Appeals, September 25th, 2024

by: Rankin Johnson

JUDGMENTS - Oral pronouncements

TRIAL PROCEEDINGS - Motions to dismiss

RIGHT TO COUNSEL - Reviewability

→ read the full summaries...

_________________________


________________________________________________