Oregon Supreme Ct - Dec. 3, 2015
by: Abassos • December 3, 2015 • no comments
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| + | Death Penalty - Atkins - Low IQ Is Not a Required Element of Intellectual Disability | ||
| + | It is possible for a person with an average or borderline IQ but low adaptive functioning to qualify as intellectually disabled such that the state is categorically prohibited from executing the person. Here, defendant was tried and sentenced to death when the DSM-IV-TR was the primary diagnostic manual. The DSM-IV-TR said that IQ was a definitional component of what was previously called mental retardation. Under the DSM-5 and under the currently prevailing psychological/psychiatric view, IQ is simply one consideration. Defendant was consistently measured as having an IQ of 82-84, in the range for "borderline intellectual functioning." However, defendant's "adaptive functioning was equivalent to that of a seven-and-a- half-year-old and that he had significant functional impairment in each of the 11 areas identified in the DSM-IV-TR for measuring adaptive functioning." | ||
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| + | adaptive functioning | ||
'''The Trial Court May Not Permit Detailed Cross-Examination of a Defense Witness By the Prosecutor Merely to Find Out Whether the Witness Will Assert a Right to Remain Silent''' | '''The Trial Court May Not Permit Detailed Cross-Examination of a Defense Witness By the Prosecutor Merely to Find Out Whether the Witness Will Assert a Right to Remain Silent''' | ||
While a trial court has broad authority to determine whether a witness is really going to testify (or instead, assert the right to remain silent), there is a limit to that authority. That limit is crossed when the judge allows a detailed pretrial examination of a witness by one of the parties. Here, the defense planned to call a co-defendant (who had already pled guilty). The trial court had the defense conduct a limited examination about whether he was willing to testify. But on cross, the judge "effectively permitted an unlawful pretrial deposition of a defense witness . . . including asking leading questions to draw out a moment- by-moment description of . . . actions and statements leading up to and during the assault". Allowing such a detailed pretrial examination violated both the discovery rules (ORS 135.805 to ORS 135.873) and ORS 136.420, which provides that all testimony “shall be given orally in the presence of the court and jury". The court also finds the error to be harmless, however, since the defendant could identify no significant benefit gained by the state through having the additional information. [http://www.publications.ojd.state.or.us/docs/S059530.pdf State v Agee], 358 Or 325 (2015). | While a trial court has broad authority to determine whether a witness is really going to testify (or instead, assert the right to remain silent), there is a limit to that authority. That limit is crossed when the judge allows a detailed pretrial examination of a witness by one of the parties. Here, the defense planned to call a co-defendant (who had already pled guilty). The trial court had the defense conduct a limited examination about whether he was willing to testify. But on cross, the judge "effectively permitted an unlawful pretrial deposition of a defense witness . . . including asking leading questions to draw out a moment- by-moment description of . . . actions and statements leading up to and during the assault". Allowing such a detailed pretrial examination violated both the discovery rules (ORS 135.805 to ORS 135.873) and ORS 136.420, which provides that all testimony “shall be given orally in the presence of the court and jury". The court also finds the error to be harmless, however, since the defendant could identify no significant benefit gained by the state through having the additional information. [http://www.publications.ojd.state.or.us/docs/S059530.pdf State v Agee], 358 Or 325 (2015). | ||
Revision as of 22:32, December 7, 2015
Death Penalty - Atkins - Low IQ Is Not a Required Element of Intellectual Disability
It is possible for a person with an average or borderline IQ but low adaptive functioning to qualify as intellectually disabled such that the state is categorically prohibited from executing the person. Here, defendant was tried and sentenced to death when the DSM-IV-TR was the primary diagnostic manual. The DSM-IV-TR said that IQ was a definitional component of what was previously called mental retardation. Under the DSM-5 and under the currently prevailing psychological/psychiatric view, IQ is simply one consideration. Defendant was consistently measured as having an IQ of 82-84, in the range for "borderline intellectual functioning." However, defendant's "adaptive functioning was equivalent to that of a seven-and-a- half-year-old and that he had significant functional impairment in each of the 11 areas identified in the DSM-IV-TR for measuring adaptive functioning."
adaptive functioning
The Trial Court May Not Permit Detailed Cross-Examination of a Defense Witness By the Prosecutor Merely to Find Out Whether the Witness Will Assert a Right to Remain Silent
While a trial court has broad authority to determine whether a witness is really going to testify (or instead, assert the right to remain silent), there is a limit to that authority. That limit is crossed when the judge allows a detailed pretrial examination of a witness by one of the parties. Here, the defense planned to call a co-defendant (who had already pled guilty). The trial court had the defense conduct a limited examination about whether he was willing to testify. But on cross, the judge "effectively permitted an unlawful pretrial deposition of a defense witness . . . including asking leading questions to draw out a moment- by-moment description of . . . actions and statements leading up to and during the assault". Allowing such a detailed pretrial examination violated both the discovery rules (ORS 135.805 to ORS 135.873) and ORS 136.420, which provides that all testimony “shall be given orally in the presence of the court and jury". The court also finds the error to be harmless, however, since the defendant could identify no significant benefit gained by the state through having the additional information. State v Agee, 358 Or 325 (2015).
