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<h2>Blog</h2>
<h2>'''The Library'''</h2>
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{{Special:Wikilog/Blog:Main|limit=3|view=summary}}
{| cellpadding="3" style="background-color: #FFFFFF;"
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<h2>Case Reviews</h2>
 
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________________________________________________
 
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<table class="gallery">
File:Image001.jpg|'''[[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]]
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<td>
File:Blood-1.jpg|'''[[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]]
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[[File:Police.jpg|x70px|link=Search_and_Seizure|center|border]]
 
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</td>
File:Phoenix-Wright-Objection1.jpg|'''[[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]]
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<td>
 
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[[File:Blood43.jpg|x70px|link=Forensic_Evidence|center|border]]
File:128px-immigration.jpg|'''[[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]]
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</td>
 
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<td>
File:Police-line.jpg|'''[[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]]
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[[File:Courtroom.jpg|x70px|link=Evidence_Code|center|border]]
 
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</td>
File:Interrogate2.jpg|'''[[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]]
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File:Brain_seen_from_above.jpg| '''[[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]]
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<td>
 
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'''[[Search_and_Seizure|Search and Seizure]]'''<br/>
File:Defense.jpg|'''[[Defenses|Defenses]]'''<br>[[Alibi|Alibi]], [[Choice_of_Evils_and_Necessity|Necessity]], [[Speedy_Trial|Speedy Trial]], [[Self_Defense|Self Defense]]
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[[Search_and_Seizure#Did_the_State_Infringe_Upon_a_Privacy_or_Possessory_Interest_of_Defendant.3F|Privacy Interest]],
 
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[[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]]
File:Oregon-flag3.png|'''[[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]]
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</td>
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<td>
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'''[[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]]
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</td>
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<td>
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'''[[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]]
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</td>
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</tr>
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<tr>
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<td>
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[[File:Passport.jpg|x70px|link=Immigration|center|border]]
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</td>
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<td>
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[[File:Police-line.jpg|x70px|link=Crimes|center|border]]
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</td>
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<td>
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[[File:Interrogate2.jpg|x60px|link=Self-Incrimination|center|border]]
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</td>
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</tr>
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<tr>
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<td>
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'''[[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]]
 +
</td>
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<td>
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'''[[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]]
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</td>
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<td>
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'''[[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]]
 +
</td>
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</tr>
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<tr>
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<td>
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[[File:Brain3.jpg|x70px|link=Mental_States|center|border]]
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</td>
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<td>
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[[File:Defense.jpg|x70px|link=Defenses|center|border]]
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</td>
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<td>
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[[File:Constitution.jpg|x70px|link=Oregon_Constitution|center|border]]
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</td>
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</tr>
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<tr>
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<td>
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'''[[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]]
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</td>
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<td>
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'''[[Defenses|Defenses]]'''<br>[[Alibi|Alibi]], [[Choice_of_Evils_and_Necessity|Necessity]], [[Speedy_Trial|Speedy Trial]], [[Self_Defense|Self Defense]]
 +
</td>
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<td>
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'''[[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]]
 
|'''[[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]]
 
|'''[[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]]
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</td>
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</tr>
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<tr>
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<td>
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[[File:Extradition.jpeg|x70px|link=Extradition|center|border]]
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</td>
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<td>
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[[File:Support_our_veterans.jpg|x70px|link=Veterans_and_Military_Service|center|border]]
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</td>
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[[File:Prison3.jpg|x70px|link=Sentencing|center|border]]
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</td>
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</tr>
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<tr>
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<td>
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'''[[Extradition|Extradition]]'''<br>
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</td>
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<td>
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'''[[Veterans_and_Military_Service|Veterans and Military Service]]'''<br>Created by Jess Barton.
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</td>
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<td>
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'''[[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]]
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</td>
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</tr>
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</table>
  
File:Extradition.jpeg|'''[[Extradition|Extradition]]'''<br>
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</td></tr>
 
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</table>
File:Support_our_veterans.jpg|'''[[Veterans_and_Military_Service|Veterans and Military Service]]'''<br>Created by Jess Barton.
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File:Prison.jpg| '''[[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]]
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</gallery>
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|-
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| '''[[Dependency_category|Dependency]]'''<br>Under Construction
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| '''[[Investigation|Investigation]]'''<br> Under Construction
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| '''[[Appeals,_PCR_%26_Habeas|Appeals/PCR/Habeas]]'''<br> Under Construction.
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| '''[[Delinquency]]'''<br> Not Yet Created
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|- 
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| colspan=2 |
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|}
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<h2>'''The Pool'''</h2>
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This spot will be the entry point to the OCDLA online forum, the next generation of The Pond
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[[File:Fish.jpg|thumb|center]]
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<td valign="top" rowspan=2 style="background-color: #FEFDF9; border: 4px solid #16759A;">
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<h2>'''You, yes YOU can Edit This Website'''</h2>  
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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 expert, every resource and every good idea an Oregon defense attorney might need.  But only if you help us out. If you visit a page on this website that is missing a case or has a typo, please [[How_To_Edit|edit the page]]. You can even reorganize or rewrite the page if you're feeling ambitious. If you have any questions or suggestions, please email '''Alex Bassos at abassos@gmail.com'''
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<h2>'''Recent [[The_Blog|Blog]] Posts'''</h2>
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* [https://libraryofdefense.org/content/obama-dream-act The Obama Dream Act] | Stephanie Engelsman
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* [https://libraryofdefense.org/content/id-theft-merger-playing-cards-youre-dealt ID Theft Merger: Playing the Cards You're Dealt]| Ryan Scott
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* [https://libraryofdefense.org/content/defenses-felony-murder Defenses to Felony Murder] | Ryan Scott
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* [https://libraryofdefense.org/content/criminal-defense-news-week-20 Criminal Defense News of the Week] | Stacy Du Clos
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* [https://libraryofdefense.org/content/guard-vouching-occurs-all-types-cases On Guard! Vouching Occurs in All Types of Cases] | David Sherbo-Huggins
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* [https://libraryofdefense.org/content/denial-credit-time-served-it%E2%80%99s-still-illegal Denial of Credit for Time Served: It's still Illegal] | Rankin Johnson IV
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* [https://libraryofdefense.org/content/third-party-standing-necessary-defendant-assert-17-year-olds-right-intercourse Is Third-Party Standing Necessary for a Defendant to Assert a 17 Year Old's Right to Intercourse?] | Ryan Scott
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<h2>'''This Week's Cases'''</h2>
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[[File:Ford poster.jpg|thumb|right]]
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'''Right to Jury Trial > Misdemeanor Charge Prosecuted as Violation'''
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Where the DA elects to prosecute a misdemeanor charge as a violation, the defendant is entitled to a jury trial if the prosecution and conviction “retains the characteristics of a criminal prosecution.”  The court looks to the type of offense, the nature of the prescribed penalty, the collateral consequences associated with conviction, the significance of the conviction to the community, and the pretrial practices associated with arrest and detention for the offense to determine if a prosecution retains criminal characteristics. Brown v. Multnomah County Dist. Ct., 280 Or 95 (1977). Here, charges for third-degree theft and attempted first-degree theft prosecuted as violations, entitled the defendant to trial by jury because:
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* Theft has been a crime recognized by society for a very long time.       
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* The nature of the $6,250 maximum fine imposed under attempted first-degree is criminal.     
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* A defendant can be arrested and detained for theft, regardless of whether prosecuted as a misdemeanor or a violation.
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State v. Fuller, __ Or App __ (2012).
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'''A Belief is Reasonable (or not) Based on What the Officer Knew at the Time'''
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When assessing whether an officer’s subjective belief is objectively reasonable, the court should not consider other benign explanations for defendant’s behavior or evidence gathered after the stop. State v. Ellis, __ Or App __ (2012).
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'''Speedy Trial > Notice Need Not be Received by Mail'''
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A delay caused by a defendant’s failure to appear is reasonable if the defendant received notice of the missed court date. A defendant is not required to receive notice by mail. Here, defendant received notice via prior hearings and agreements with the court, and notices sent to his last known address and given to his attorney. State v. Stephens, __ Or App __ (2012).
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Where a defendant failed to inform the court of her current address as required by her conditions of release and notice is sent to her most recent address on file, the resulting delay from failure to appear is reasonable. State v. Turner, __ Or App __ (2012).
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'''Trial Court’s Mistaken Reliance on Inapplicable Statutes Does Not Vitiate Finding of Probable Cause'''
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Though the trial court mistakenly relied upon statutes that defendant could not have violated, the facts as the officer perceived them satisfied the elements of a traffic infraction. Therefore the officer had probable cause to stop defendant. That the statutes relied upon by the state on appeal were different than those cited by the trial court was irrelevant; neither side argued any statutes before the trial court, both sets of statutes involved the same operative facts, and the pertinent facts were recorded on video. State v. Ordner, __ Or App __ (2012).
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'''Consent to Search > Invalid when Obtained by Knocking on Back Door'''
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Police violated defendant’s constitutional rights by trespassing onto the curtilage of his home and knocking on the back door. The trespass tainted defendant’s consent to search the home, and therefore, all evidence subsequently obtained is suppressed. State v. Unger, __ Or App __ (2012).
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'''Stop > No Reasonable Suspicion from Standing Next to Intoxicated Friend in Parking Lot'''
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Defendant was stopped when police took and retained his ID for a warrant check. No reasonable suspicion supported the stop when he was standing with his girlfriend next to a parked car while police detained his intoxicated friend. The evidence subsequently obtained that defendant had driven under the influence of alcohol was a result of the unlawful stop and is suppressed.  State v. Smith, __ Or App __ (2012).
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'''Speedy trial > Cumulative Delay of 19 Months Attributed to State Unreasonable in a Misdemeanor'''
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A cumulative period of 19 months, attributable to the state, in a misdemeanor case is unreasonable even though 14 months of the time is reasonable.  The courts have generally concluded that state-caused delays over 15 months are generally unreasonable, though in prior cases the majority of the delay was unjustified.  Here, defendant was charged with misdemeanor DUII.  The state’s delay was attributed to various errors including (1) the court’s unexplained docket error, (2) the state awaiting a decision in Machuca, (3) rescheduling due to jury selection in a death penalty case, and (4) various scheduling conflicts.  The court held that the unexplained docket error (accounting for 5 months) was not adequately explained and was therefore unjustified.  Although the other delays were “routine scheduling delays,” the cumulative period of nineteen months in a misdemeanor case was unreasonable.  State v. Peterson, ___ Or App __ (2012).
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'''Physical Restraints at Trial > Oregon and Federal Due Process Requires the Court to Find Defendant Posed an Immediate and Serious Risk Before Placing Her in Physical Restraints at Trial'''
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To restrain a defendant during trial, the judge must independently find on the record that, “the defendant posed an immediate or serious risk of committing dangerous or disruptive behavior, or that he posed a serious risk of escape.” Where the court restrains a defendant during trial without “substantial justification,” the defendant suffers “manifest prejudice,” regardless of whether the restraints are visible to jurors.  Here, the jail placed defendant in a leg restraint based on their classification of her as a “medium risk.”  Although defendant had 13 prior felony convictions, none involved escape or anything suggesting a flight risk.  She wore pants and a dress to cover up the restraint, and the court was willing to allow her to take the stand and leave the stand outside the presence of the jury.  Instead, Defendant entered a conditional guilty plea. The court holds that the trial court was not authorized to defer to the jail’s classification without particularized evidence that justified it. State v. Wall, ___ Or App ___ (2012)
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'''Motion to Withdraw Admission does not Preserve Juvenile’s Argument that Waiver of Counsel was Not Knowing, Voluntary and Intelligent'''
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Youth’s motion to withdraw her admission did not preserve her argument that she did not validly waive her right to counsel because counsel did not argue it in the motion or the hearing.  Here, Youth had waived her right to counsel at the time of the admission. Her Counsel’s motion to withdraw the admission because Youth did not understand what she was admitting did not preserve a claim that her waiver of counsel was not knowing and voluntary.  State v. CS, __ Or App  __ (2012)
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'''PCR >  Must Have a Tendency to Affect the Result of Trial'''
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The following errors were not sufficient for post-conviction relief because of the ample evidence of defendant’s guilt:
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(1)    Defense counsel’s failure to object to detectives’ hearsay statements that both co-defendants had implicated the other in the crime.
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(2)    Defense counsel’s failure to call a cell phone expert to dispute the state’s evidence that the cell tower data from defendant’s phone did not necessarily mean that he was in Springfield, rather than in Eugene.
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(3)    Defense counsel’s failure to call a witness who would testify that the defendant had told her that co-defendant was going to do the robbery so that she could warn the victims and police.  Counsel had subpoenaed the witness, and she failed to appear.
+
 
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(4)    Failing to timely object to a discovery violation.
+
 
+
Derschon v. Belleque, __ Or App __ (2012).
+

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.




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