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Today, the OSC issued a press release that announced one case it was granting review on, and a number of cases it was not. Among those cases where the court was not granting review, individual justices either said they would have granted review or, more likely, concurred in the denial of review but felt the issue was worth addressing in a future case.

In other words, the individual justices were alerting lawyers -- defense lawyers in particular -- of issues they would like to see raised in future cases.

One of those cases was State v. Anne. Justices DeHoog and James both concurred in the denial of review "but observed that the petition raised an important legal issue that the Court should consider in

an appropriate case." Do they say what that issue is? Nope, I had to look up the case to find out what the issue was. And let me tell you, it's a doozy.

For the past couple of years, I have encouraged a variety of arguments for keeping out the forensic interview in child sex cases. Not a lot of appellate success so far. Right now, though, I want to focus on excluding it under OEC 403. I've made the argument a couple of times myself, I've written an appellate brief on the issue, I've read other appellate briefs on the issue, and I've read trial transcripts where the arguments were raised. Here is a step-by-step process for what I think is the best way to maximize your chances of either keeping out the interview or winning on appeal.

Assume a car is pulled over for a traffic stop on August 1st. It turns out the driver was supposed to register as a sex offender on January 1st, but he had not. When taking him into custody, the police find a baggie of cocaine. He is subsequently charged with both crimes in a single indictment.

I previously wrote a blog post -- and a demurrer, available upon request -- arguing that the indictment should be dismissed because the counts are improperly joined. The "failure to register" did not occur during the traffic stop. It occurred seven months earlier. For that reason, the two crimes are not from the same criminal episode. The two crimes are not part of a common scheme or plan. They are not same or similar. Because the improper joinder is plain on the face of the indictment and regardless of any joinder language in the indictment, the proper vehicle is a demurrer, and the proper remedy dismissal.

But that's not why I'm writing this post. Rather, this post is based on the news that the Oregon Supreme Court has granted review to a case with the following issues:

(1) Whether time is a material element of the crime of failing to report as a sex offender.

(2) Whether the state may satisfy its burden of proving that a crime occurred on the date pleaded in an indictment by providing evidence that the crime occurred at an earlier date than that pleaded in the indictment.

The Court of Appeals' opinion is State of Oregon v. Edwardo Luis Ribas, 333 Or App 789, 554 P3d 280 (2024) (A178917) (S071443) (on review from the Linn County Circuit Court)

Technically, not the same legal issues as the demurrer described above, but the two are highly interrelated.