Welcome to The Library

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  Search and Seizure
  Privacy Interest, Stops,Arrests, Consent, Warrant Exceptions, Suppression Exceptions, Search Warrants

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  Oregon Constitution
  Speedy Trial, Right to Counsel, Confrontation, Double Jeopardy, Equal Privileges, Ex Post Facto, Venue

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  Extradition
  

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  Veterans and Military Service
  Created by Jess Barton.

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  Sentencing
  Criminal Episodes,Merger, Consecutive Sentences, Mandatory Minimums, Probation, Restitution, Collateral Consequences

Dependency Under Construction	Investigation Under Construction	Appeals/PCR/Habeas Under Construction.	Delinquency Not Yet Created

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 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 me at: Alex Bassos at abassos@gmail.com

• Preservation at its Most Challenging | Ryan Scott
• "Are you for or against the dog this time?" SCOTUS on drug-detection dogs | Ryan Scott
• Ninth Circuit recognized that even sex offenders have a "particularly significant liberty interest" in family relationships | Ryan Scott

Witness Competency Requires Sufficient Ability to Communicate Perceptions

For a witness to be competent, he must have sufficient ability to perceive, recollect and communicate such that his testimony will be worthwhile. Here, the state wanted to introduce the testimony of defendant’s autistic son, Z. The accommodations necessary for Z to testify “would effectively exclude most questions involving intangible actions, past events, persons and objects not present at trial, distances, times, dates, and locations.” Thus, his severely limited ability to communicate his perceptions renders him incompetent to testify. Also, a video in which Z allegedly leads investigators in a car to the scene of the crime was properly excluded:

• Its probative value depends upon the jury accepting a number of assumptions and inferences,
• It contains a number of suggestive and leading questions by the investigators, and
• It would mislead the jury because it would likely be given inordinate attention at trial.

State v. Sarich, __ Or __ (2012).

Evidence of Prior Bad Acts Not Admissible to Show Intent Unless There’s Sufficient Evidence that the Charged Act Occurred

In the absence of evidence sufficient to support a finding that the charged act occurred, similar bad acts are not admissible to show intent. Here, the defense to sex abuse was that the defendant didn’t do it. Since no evidence had been presented yet, the trial court should not have denied defendant’s motion in limine to exclude uncharged sexual misconduct. Instead, the court should have found the evidence admissible only on the conditions that (1) the state presents sufficient evidence at trial that the charged act occurred and (2) there be a jury instruction permitting consideration of the prior acts only after a finding that the charged act occured.

The Court also holds that prior uncharged sexual misconduct between a defendant and victim may be admissible to “bolster” a victim’s identification of the defendant. Here, however, there was no need to strengthen the identification of the defendant because the victim and defendant had “continuous, ongoing contact.” State v. Pitt, __ Or __ (2012).

Mens Rea Jury Instruction Must be Statute Specific

The state must prove mens rea with regard to the specific elements of the substantive criminal statute. Here, defendant was charged with second-degree criminal mischief requiring “damages.” Damages are a result not a circumstance Thus, a jury instruction defining reckless as awareness and conscious disregard of “a risk that a result will occur or that a circumstance exists” was reversible error. State v. Davis, __ Or App __ (2012).

Officer’s Decision to Impound Vehicle, And Thus Conduct Inventory, May Be Discretionary

An officer’s decision to impound a vehicle may involve the exercise of discretion, even though that discretion will determine whether an inventory of the vehicle occurs. The Portland Police Bureau towing policy mandates towing and inventorying a vehicle when citing a driver for driving uninsured, but not when citing for failure to carry proof of insurance. An officer may constitutionally choose which citation to issue. State v. Penney, __ Or App __ (2012).

First Degree Criminal Misconduct Not Applicable to Affirmative Conduct

"Withholding necessary and adequate…physical care" under ORS 163.205(1)(a) does not apply to affirmative conduct or a failure to stop engaging in that affirmative conduct. Here, defendant’s act of placing her hand over the victim's mouth leading to victim’s death did not constitute first-degree criminal mistreatment. State v. Kaylor, ­__Or App__ (2012).

Theft by Receiving – Defendant “Knows” Property Was Subject of Theft Where He Knew the Victim Disputed His Right to Possess the Items

“[I]n order to be found guilty of theft by receiving, defendant must have known or believed that the articles of personal property at issue were the subject of theft.” Here, the victim was in the hospital and asked defendant to sell his property and give the money to victim’s wife. Instead, the defendant retained the property to settle a debt that the defendant felt victim owed to him. A year later, the victim tried to recoup the property, and the police contacted defendant. The court holds that a rational trier of fact could have found that the defendant knew the property he retained was the subject of theft. State v. Smith, __ Or App __ (Oct 2012).

Relevancy of “Delayed Reporting” Testimony in Sexual Abuse Cases

Expert testimony regarding “delayed reporting” in a child sexual abuse case may be relevant even when defendant does not intend to impeach the complainant’s credibility based on that delay. Here, testimony on delayed reporting was relevant to explain the five-year reporting delay and to counter any inference that the delay was indicative of fabrication. State v. White, __ Or App __ (2012).