Welcome to The Library

The standard UCrJI 1006 (“Evaluating Witness Testimony”) instruction states:

The term witness includes every person who has testified under oath in this case. Every witness has taken an oath to tell the truth. In evaluating each witness’s testimony, however, you may consider such things as:

(1) The manner in which the witness testifies.

(2) The nature or quality of the witness’s testimony.

(3) Evidence that contradicts the testimony of the witness.

(4) Evidence concerning the bias, motives, or interest of the witness.

[(5) Evidence concerning the character of the witness for truthfulness.]

“[(6) Evidence that the witness has been convicted of a previous crime.].”

In State v. Kessler, 254 Or 124, 458 P2d 432 (1969, the Oregon Supreme Court considered a challenge to the following instruction:

“* * * Now every witness is presumed to speak the truth. This presumption may be overcome by the manner in which the witness testifies, by the nature of his or her testimony, by evidence affecting his or her character, interest or motive, by contradictory evidence or by a presumption.” (Emphasis added).

The Kessler court affirmed on the grounds that the instruction had provided ways in which the presumption could be overcome:

“The bare instruction in criminal cases that a witness is presumed to tell the truth has been criticized. However, where the instruction includes, as it did in the present case, an explanation of how the presumption can be overcome it is not considered prejudicial or as rendering nugatory the presumption of innocence. Although it might be preferable not to instruct the jury in criminal cases where defendant does not take the stand that a witness is presumed to speak the truth, we find no error in giving the instruction if accompanied by an explanation of how the presumption can be overcome. * * * [W]e do not think that the instruction which defendant now attacks deprived him of the benefits of [the presumption of innocence], as we have already said, the explanation of how the presumption of credibility could be overcome would inform the jury that the presumption was not tantamount to a declaration of defendant’s guilt.”

(Footnotes omitted). Accord State v. Dowell, 16 Or App 38, 39-40, 516 P2d 1305 (1973) (citing Kessler).

Kessler has been impliedly overruled by multiple Oregon Supreme Court cases. Since 1969, the Oregon Supreme Court has repeatedly articulated and adhered to the rule that the court may not instruct the jury to draw an inference against the defendant that effectively shifts the burden of proof. State v. Hayward, 327 Or 397, 410, 963 P2d 667 (1998) (“It is well established that a trial court is not permitted to comment on the evidence.”); State v. Rainey, 298 Or 459, 467, 693 P2d 635 (1985) (holding that the court should not instruct the jury on “inferences” to be used against the accused because to do so “conflicts with the beyond-a-reasonable-doubt standard”).

Second, whatever Kessler had to say regarding the instruction’s effect on the presumption of innocence (the question at issue in Kessler), a court may not comment on the evidence by telling the jury “how specific evidence relate[s] to a particular legal issue.” State v. Brown, 310 Or 347, 373, 800 P2d 259 (1990) (trial court did not err in failing to prove the defendant’s requested instruction, because it would constitute an improper comment on the evidence); State v. Wiltse, 373 Or 1, 12, 559 P3d 380 (2024) (construing ORCP 59 E to foreclose such comments); see also State v. Nefstad, 309 Or 523, 552, 789 P2d 1326 (1990) (trial court did not err by declining to give a defendant’s requested instruction that “consciousness of guilt” “does not constitute affirmative proof as to how the crime was committed or defendant’s participation therein.”).

Third, the instruction violates the independent rule against vouching. State v. Sperou, 365 Or 121, 133, 442 P3d 581 (2019) (explaining that language that assumes the truth of an allegation constitutes a form of vouching that undermines the presumption of innocence); see also State v. Perez, 373 Or 591, 619, 568 P3d 940 (2025) (Bushong, J., concurring) (noting that prosecutors should “never suggest or insinuate” that the state, the police, or other witnesses believe witnesses and should instead confine themselves to the “standard” jury instruction on evaluating witness testimony). Because Kessler did not address vouching, this court is not bound by the Kessler holding.

Special thanks to appellate attorney extraordinaire Stacy Du Clos for coming up with this argument.

A jury finding of extreme emotion disturbance can reduce a murder charge to a manslaughter conviction. And it recently got harder for the state to defeat. Richards v Brown, 345 Or App 321 (2025).

It's a substantial reduction, from a life-25 sentence to 10 years.

But a perennial complaint of defense lawyers is that EED -- though understood as a partial defense to murder -- is not a defense in any way to attempted murder. Seems unfair, but that's the law. Is there anything a defense lawyer can do?

Yes. Article I, section 16. There are legal and societal reasons why EED is a substantial mitigating factor. Consequently, EED almost certainly meets Gonzalez standard for application of Article I, section 16. State v. Gonzalez, 373 Or 248 (2025). A successful proportionality argument would still result in prison, but a non-Measure 11 sentence. State v. Fudge, 333 Or App 149 (2024).

I have developed a strong interest in expanding the scope of Article I, section 16. For those keeping score at home, here are other times I think you should consider pushing the envelope:

(1) When the defendant is highly mentally ill but not quite enough to meet a GEI standard.

(2) When the defendant has significant medical needs. (Compassionate release only applies to non-M11 sentences in Oregon.)

(3) When a lengthy sentence will only be served after the defendant is found rehabilitated by the parole board.

(4) When a defendant is convicted of sex abuse II based solely on the victim being 16 or 17, when there is a statute that makes the exact same crime a misdemeanor.

Assume defendant is charged with twenty crimes over the same five year period in the exact same location. Assume also that the crime happened on a weekly basis. Assume also that you cannot tell from the discovery or indictment the specific incidents that are the basis for crimes 1-20.

Because you keep up on the law, you file a demurrer/motion to require election. The state responds by electing in part as follow. Count 2 is the first time a specific crime occurred. Count 3 is the second time that same crime occurred. Is that enough to save the state? Here's an argument taken from an appellate brief why it is not.

Counts 2-3 alleged the “first time” and the “second time”, respectively that rape was alleged to have occurred. They are also representative of the way the state had “elected” with regard to the other counts. Was that sufficient?

The answer is no, for the obvious reason that “first time” or “second time” provide no factual detail that would be necessary to preparing a defense. The following hypothetical illustrates that point. Assume a “residential abuser” case that a complainant was able to provide more specificity than the usual detail in her forensic interview. She alleges that the first time the abuse occurred was right after the spring final exams of her sophomore year. But at trial, she testifies that the first time the abuse occurred was when she wanted to go to her sophomore homecoming. If the state were to elect one or the other, that would be the kind of specific detail that a defendant would have an opportunity to adequately defend against. But if the state’s only election pre-trial is “first time abuse occurred,” it still would not specify the allegation (final exams or homecoming) he has to defend against. “First time” provides no factual specifics that would allow a defendant to defend himself. In this case, because neither “first time” nor “second time” provided the necessary factual specificity, the election was inadequate and if the demurrer was not granted, the motion to elect should have been.