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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.

This analysis applies to GJ testimony offered under OEC 803(18a)(b) but also prior trial testimony if the case is back from appeal or post-conviction.

I don't know how widespread the practice is. I know it is fairly routine in Washington County child sex cases for the DA's office to offer at trial the child's testimony from GJ. (If you haven't looked closely at the notice they've filed out there, you might want to do so.) I know it has been done in Multnomah County and at least once in Clackamas County. If the practice hasn't gotten around to the rest of the state yet, it will.

For those of you on the OCDLA listserve, you have probably seen the motion I've been sending around that challenges the admission of anything but the "disclosure," that is, the initial statement or two by the child. That argument would theoretically exclude the forensic interview of the child, especially when nothing new is learned or gained in the interview and it's the fourth or fifth time the child has talked about it.

The argument for exclusion is two-fold. One, it is beyond the scope of what the statute intended. The primary purpose of the statute is to help the jury evaluate the circumstances under which the child revealed the abuse and their demeanor when they did so. That would not apply, in theory, to situations where the child repeats the allegations. The second argument for exclusion is OEC 403, specifically, that repetition of essentially the same testimony is highly prejudicial because people will believe things not from any persuasive logic but because they've heard it repeated multiple times. E-mail me if you need those motions.

Both of those arguments have much greater force when applied to a child's GJ testimony and/or prior trial testimony.

But what if we're wrong? Is there an alternative argument to be made that perhaps wouldn't accomplish as much but still increase the fairness of the trial? Let's focus just on the scope of 803(18a)(b) argument. I think we will always be the underdog with regard to the argument that the child abuse hearsay exception does not apply to forensic interviews. It is just too familiar, too much a part of the legal landscape, and there is a belief -- which I increasingly find without merit -- that these interviews have evidentiary value. At the same time, I think trial courts will be more sympathetic to the argument that the legislature didn't intend the hearsay exception to GJ testimony or prior trial testimony, which is a relatively new addition to prosecutorial strategy and any evidentiary value is even less, well, evident.

So assume we lose the argument with regard to the forensic interview. Is there are limiting principal that would exclude the GJ testimony as a matter of law (and not just under OEC 403)?

I think there is. I think a reasonable line can be drawn between initial statements to family, friends, and law enforcement made for the purpose of investigation (and I'm including the forensic interviews in the latter group), and statements made to authority figures that aren't for any investigatory purpose. (And to be clear, the GJ is not being used an investigative body in these cases. The investigation has been completed by then.)

I like this distinction because it relies on common sense. First, it makes sense that there is a limiting principal of some sort. If not, the state could admit a hundred statements made before the child turned 18. It is reasonable to assume the legislature intended some rational limit. If the legislature did intend a limit, limiting statements to law enforcement that are made for an investigatory purpose is an entirely reasonable limit. And even if the trial court is not entirely convinced, at the very least, making this argument will help indirectly on the OEC 403 argument you'd also be making.

This is a small bit of advice that won't matter most of the time, but every now and then it might.

There are jury instructions given in every case. If you don't specifically want them, don't ask for them.

For example, in a kidnapping case, why ask for the standard instructions? Oh sure, you may want to modify those instructions. You may want to add additional instructions. But why ask for the standard ones? The state will ask for them. If you don't object, the judge will give them.

Why does it matter? Because let's say by the time your case is briefed, the appellate courts have ruled that the standard instruction is wrong. You didn't preserve the argument, which happens. Maybe it was a genuinely unexpected change, which somebody else preserved but didn't tell anyone else about. The appellate attorney in your case nevertheless briefs the issue as plain error. There's no dispute it's error. There's no dispute it's harmful. So your client wins, right? Not if you invited error. And how would you have invited error? You specifically asked for the erroneous instruction.

Would the COA agree that it was invited error? I don't know. But you could avoid that by not asking for the state's instructions. And if nothing else, it's less work.