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How should I start jury selection? The Court of Appeals just told me—and maybe you, too.

Yes, you heard that right. As a new guy who graduated law school in 2023, I’ve often struggled with breaking the ice during jury selection—and doing so in a way that advances my trial theory.

Thankfully, the Court of Appeals (O’Connor, J.) just released an opinion that tells trial lawyers how to pick a jury. Specifically, the opinion in State v. Pugh suggests how we can set up voir dire to ensure the trial judge strikes unfriendly jurors. 341 Or. App. 435, 439–40 (2025). And, if the trial judge denies our for-cause challenges, how we can get the appellate court to reverse a guilty verdict.

Pugh reminds us to sprint to bias as soon as we stand up in front of the panel.

The State has charged your client with felon in possession of a firearm where their only felonies are old or non-violent crimes. File a pre-trial motion to dismiss. Demand a hearing. At that hearing, show the judge that your client is no longer a danger to others. Call witnesses to talk about how safe and law-abiding your client is. Bring in employment, treatment, and schooling records. Talk about the lack of subsequent violent criminal history. Because your client is no longer a danger, they still have a constitutional right to bear arms.

More follows below, including helpful federal and state cases to support your arguments.

The Oregon Supreme Court is going to hear argument in September in the case of State v. Monaco. The conviction was for felony murder. One of the "questions presented and proposed rules of law" identified in the opening brief is as follows:

Third Question Presented. Does ORS 163.115(1)(b), Oregon’s felony murder statute, violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution?

Proposed Rule of Law. This court has interpreted ORS 163.115(1)(b) as creating a presumption of a culpable mental state for the causation-of-death element of felony murder, by the defendant’s commission or attempted commission of the underlying felony. Such a legal presumption violates due process because it is inconsistent with the presumption of innocence, relieves the state of its burden to prove every element of the offense, and invades the province of the jury. In the alternative, it violates due process by establishing a strict-liability offense for a violent felony.

My question, which is in the larval stage of development, is this: Are any of the constitutional principles on which the Monaco argument relies applicable to major sex crimes where no mental state at all applies to the element that makes a defendant guilty (the age of the victim in a Jessica's Law case) or where no mental state applies but the defendant has the ability to raise an affirmative mental state defense (sex with a sleepy or intoxicated person)?

Article I, section 16, of the Oregon Constitution states:

“Excessive bail shall not be required nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.”

The proportionality provision requires a “comparative relationship” between punishments and the offenses for which they are imposed:

“The term ‘proportion’ indicates a comparative relationship between at least two things. See, e.g., 2 Noah Webster, An American Dictionary of the English Language 45 (1828) (“proportion” indicates a “comparative relation”). Here, the two things being related are “penalties” and “the offense,” and the provision requires that the penalties for each particular offense be “proportioned”—that is, comparatively related—to that offense. The strong implication of that requirement is that a greater or more severe penalty should be imposed for a greater or more severe offense and, conversely, that a less severe penalty should be imposed for a less severe offense.”

State v. Wheeler, 343 Or 652, 655-56, 175 P3d 438 (2007)

The test for making proportionality determinations has “at least three factors” to consider, including: “(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant.” State v. Rodriguez/Buck, 347 Or 46, 58, 58 n 6, 217 P3d 659 (2009).

Buck/Rodriguez involved Measure 11 crimes, requiring a 75 month mandatory minimum sentence. But the actual behavior was rather minor, and therefore the 75 month sentence was overly severe.

In addition, the Oregon Supreme Court has held that characteristics of the defendant plays a significant role in determining if a sentencing is disproportionate. In State v. Ryan, the Court held:

"Evidence of an offender's intellectual disability therefore is relevant to a proportionality determination where sentencing laws require the imposition of a term of imprisonment without consideration of such evidence. Accordingly, we conclude that, where the issue is presented, a sentencing court must consider an offender's intellectual disability in comparing the gravity of the offense and the severity of a mandatory prison sentence on such an offender in a proportionality analysis under Rodriguez/Buck."

Id. at 620-21.

In State v. Gonzalez, the Oregon Supreme Court held that other characteristics other than intellectual disability may be relevant, but rejected the argument that the defendant's mental health attributes rendered a M11 sentence unconstitutional.

I think, however, the case law has only scratched the surface of situations where Article I, section 16, would come into play. What follows are some ideas for when the constitutional protections of the proportionality clause might be triggered.

Today, the OSC issued a press release that announced one case it was granting review on, and a number of cases it was not. Among those cases where the court was not granting review, individual justices either said they would have granted review or, more likely, concurred in the denial of review but felt the issue was worth addressing in a future case.

In other words, the individual justices were alerting lawyers -- defense lawyers in particular -- of issues they would like to see raised in future cases.

One of those cases was State v. Anne. Justices DeHoog and James both concurred in the denial of review "but observed that the petition raised an important legal issue that the Court should consider in

an appropriate case." Do they say what that issue is? Nope, I had to look up the case to find out what the issue was. And let me tell you, it's a doozy.

For the past couple of years, I have encouraged a variety of arguments for keeping out the forensic interview in child sex cases. Not a lot of appellate success so far. Right now, though, I want to focus on excluding it under OEC 403. I've made the argument a couple of times myself, I've written an appellate brief on the issue, I've read other appellate briefs on the issue, and I've read trial transcripts where the arguments were raised. Here is a step-by-step process for what I think is the best way to maximize your chances of either keeping out the interview or winning on appeal.

Assume a car is pulled over for a traffic stop on August 1st. It turns out the driver was supposed to register as a sex offender on January 1st, but he had not. When taking him into custody, the police find a baggie of cocaine. He is subsequently charged with both crimes in a single indictment.

I previously wrote a blog post -- and a demurrer, available upon request -- arguing that the indictment should be dismissed because the counts are improperly joined. The "failure to register" did not occur during the traffic stop. It occurred seven months earlier. For that reason, the two crimes are not from the same criminal episode. The two crimes are not part of a common scheme or plan. They are not same or similar. Because the improper joinder is plain on the face of the indictment and regardless of any joinder language in the indictment, the proper vehicle is a demurrer, and the proper remedy dismissal.

But that's not why I'm writing this post. Rather, this post is based on the news that the Oregon Supreme Court has granted review to a case with the following issues:

(1) Whether time is a material element of the crime of failing to report as a sex offender.

(2) Whether the state may satisfy its burden of proving that a crime occurred on the date pleaded in an indictment by providing evidence that the crime occurred at an earlier date than that pleaded in the indictment.

The Court of Appeals' opinion is State of Oregon v. Edwardo Luis Ribas, 333 Or App 789, 554 P3d 280 (2024) (A178917) (S071443) (on review from the Linn County Circuit Court)

Technically, not the same legal issues as the demurrer described above, but the two are highly interrelated.

The Supreme Court recently took review of a case where the question presented is:

Whether, for the purposes of inventorying property in lawful policy custody, Article I, section 9, of the Oregon Constitution allows police officers to open and search inside a closed container?

The Court of Appeals opinion the higher court is reviewing is State of Oregon v. Jason Thomas Wilcox, 335 Or App 743, 560 P3d 91 (2024) (A175891) (S071582) (on review from the Washington County Circuit Court)

The Oregon Supreme Court has decided to review a Court of Appeals decision that held a license-suspension statute applied to convictions for UUV. From the press release:

State of Oregon v. Joseph Adam Schriner, 336 Or App 873, 562 P3d 296 (2024) (A179760) (S071692) (on review from the Washington County Circuit Court) (Masih, J. did not participate in the decision to allow review)

Defendant has been granted review of a Court of Appeals decision that affirmed a trial court's revocation of defendant's driver's license under ORS 809.409. Defendant had been charged with unlawful use of a vehicle (UUV) under ORS 164.135, after he admitted to "knowingly operating a motorcycle" without the :owner's consent. Despite charging defendant with UUV -- which does not mandate driver's license revocation -- the state argued that revoking defendant's driver's license was mandatory under ORS 809.409(4), which requires revocation "upon receipt of the conviction for any felony where a material element involves :the operation of a motor vehicle." Under that statute, the state contended, revocation of defendant's license was mandated, because the state's theory of UUV and the facts "involved the defendant's operation of a motor vehicle." Defendant objected to the state's theory, arguing that UUV does not have a material :element of "operation of a motor vehicle" because the crime of UUV can be committed by conduct other than operating a motor vehicle. The trial court revoked defendant's driver's license, and defendant was convicted of UUV.

Defendant appealed, the Court of Appeals affirmed, and defendant petitioned for review.

On review, the issues are:

(1) Whether, to revoke a driver's license based on a felony with a material element involving the operation of a motor vehicle, a trial court must consider only the facts that satisfy the statutory elements of the felony.

(2) Whether a trial court is authorized to revoke a defendant's driver's license based on that defendant's conviction for unlawful use of a vehicle (UUV).

Felony murder occupies an unusual place in the murder firmament. It does not require an intent to kill. Nor does it require the defendant kill the victim. Yet it carries the exact same sentence as any other murder in the 2nd degree (life, with a 25-year mandatory minimum before eligibility for parole). Given that significantly less culpability is built into the offense, it seems to me that every felony murder sentence is vulnerable to a challenge under Article I, section 16. But that's not the point of today's post.

Instead I want to discuss three challenges to felony murder. The first applies to every felony murder. The second is limited to those situations where the defendant's only role is as an accomplice to the predicate felony. And the third applies to a very specific theory of felony murder: when a child dies from injuries sustained during an assault in the first or second degree.