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In a footnote in today's Bock opinion, the COA wrote:

4 UUW is not generally a lesser included offense of attempted aggravated murder, because it requires proof of the use of a “dangerous or deadly weapon,” which is not an element of attempted aggravated murder. However, in cases such as this one in which the counts of attempted aggravated murder included that defendant used a firearm as an additional material element, UUW may be a lesser included offense as it was here. See ORS 161.610(2) (use or threatened use of a firearm may be pleaded in the accusatory instrument and proved at trial as an element of aggravation).

Not only then is the most common theory of UUW a lesser-included of Attempted Murder w/ a firearm (assuming same victim), the two counts would merge in the same way a lesser-included offense mergers with a greater offense.

The same applies to murder w/ a firearm and UUW. Note that it does not apply to every theory of UUW.

For whatever reason, a lot of attorneys who handle murder cases miss this easy and slam-dunk argument. I assume on some level, it's because if a defendant is convicted of murder and UUW after trial, even the most ignorant judge will run the two counts concurrently. The additional conviction for UUW wouldn't increase the sentence or the PPS.

But on a more basic level, I believe fewer convictions is better than more convictions. And if it takes a 30-second argument to get one fewer convictions, just do it. Even if there will be absolutely no chance of any collateral impact once the defendant gets out of prison, who knows what DOC policies -- either now or in the future -- would be impacted by the number of convictions. And getting into the habit of thinking about merger and how it applies will help the attorney recognize the issue in cases where fewer convictions really will make a clear and substantive difference.

In the preceding post, I argued why the standard jury instruction UCrJI 1006 violates the rules against commenting on the evidence and vouching, because it tells the jury that the witnesses have taken an oath to tell the truth, thereby drawing the jury's attention to a reason to believe those witnesses..

But that's not the only problem with UCrJI 1006.

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.].”

(6) is also an impermissible comment on the evidence because it highlights a fact that the jury is supposed to consider for a particular purpose. Now this one gets more complicated strategically. Obviously, you only want to object when your client's conviction comes into evidence. But there are other considerations, including whether to ask for a limiting instruction that limits what purposes the jury can consider the prior conviction for.

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.].” [Bold added.]

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).

Defendant cites Kessler because the state is likely to raise it in defense of the standard instruction. But not only does Kessler not specifically address the basis of the objection discussed below, but also Kessler has been impliedly overruled by multiple Oregon Supreme Court cases. Since 1969, the 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.”). In other words, a court may not – when directing the jury to evaluate a witness’s testimony – tell the jury to consider that the witness took an oath to tell the truth. the court is impermissibly noting to the jury a fact in evidence (the witness has sworn an oath to tell the truth) in a jury instruction on how the jury should weigh credibility.

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.

Noting that the witnesses – especially when the state has the majority or only witnesses – have sworn an oath to testify truthfully is unquestionably vouching. In fact, it is not at all clear what other purpose for that statement would be.

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