Welcome to The Library

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.

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.

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.

This analysis applies to GJ testimony offered under OEC 803(18a)(b) but also prior trial testimony if the case is back from appeal or post-conviction.

I don't know how widespread the practice is. I know it is fairly routine in Washington County child sex cases for the DA's office to offer at trial the child's testimony from GJ. (If you haven't looked closely at the notice they've filed out there, you might want to do so.) I know it has been done in Multnomah County and at least once in Clackamas County. If the practice hasn't gotten around to the rest of the state yet, it will.

For those of you on the OCDLA listserve, you have probably seen the motion I've been sending around that challenges the admission of anything but the "disclosure," that is, the initial statement or two by the child. That argument would theoretically exclude the forensic interview of the child, especially when nothing new is learned or gained in the interview and it's the fourth or fifth time the child has talked about it.

The argument for exclusion is two-fold. One, it is beyond the scope of what the statute intended. The primary purpose of the statute is to help the jury evaluate the circumstances under which the child revealed the abuse and their demeanor when they did so. That would not apply, in theory, to situations where the child repeats the allegations. The second argument for exclusion is OEC 403, specifically, that repetition of essentially the same testimony is highly prejudicial because people will believe things not from any persuasive logic but because they've heard it repeated multiple times. E-mail me if you need those motions.

Both of those arguments have much greater force when applied to a child's GJ testimony and/or prior trial testimony.

But what if we're wrong? Is there an alternative argument to be made that perhaps wouldn't accomplish as much but still increase the fairness of the trial? Let's focus just on the scope of 803(18a)(b) argument. I think we will always be the underdog with regard to the argument that the child abuse hearsay exception does not apply to forensic interviews. It is just too familiar, too much a part of the legal landscape, and there is a belief -- which I increasingly find without merit -- that these interviews have evidentiary value. At the same time, I think trial courts will be more sympathetic to the argument that the legislature didn't intend the hearsay exception to GJ testimony or prior trial testimony, which is a relatively new addition to prosecutorial strategy and any evidentiary value is even less, well, evident.

So assume we lose the argument with regard to the forensic interview. Is there are limiting principal that would exclude the GJ testimony as a matter of law (and not just under OEC 403)?

I think there is. I think a reasonable line can be drawn between initial statements to family, friends, and law enforcement made for the purpose of investigation (and I'm including the forensic interviews in the latter group), and statements made to authority figures that aren't for any investigatory purpose. (And to be clear, the GJ is not being used an investigative body in these cases. The investigation has been completed by then.)

I like this distinction because it relies on common sense. First, it makes sense that there is a limiting principal of some sort. If not, the state could admit a hundred statements made before the child turned 18. It is reasonable to assume the legislature intended some rational limit. If the legislature did intend a limit, limiting statements to law enforcement that are made for an investigatory purpose is an entirely reasonable limit. And even if the trial court is not entirely convinced, at the very least, making this argument will help indirectly on the OEC 403 argument you'd also be making.

This is a small bit of advice that won't matter most of the time, but every now and then it might.

There are jury instructions given in every case. If you don't specifically want them, don't ask for them.

For example, in a kidnapping case, why ask for the standard instructions? Oh sure, you may want to modify those instructions. You may want to add additional instructions. But why ask for the standard ones? The state will ask for them. If you don't object, the judge will give them.

Why does it matter? Because let's say by the time your case is briefed, the appellate courts have ruled that the standard instruction is wrong. You didn't preserve the argument, which happens. Maybe it was a genuinely unexpected change, which somebody else preserved but didn't tell anyone else about. The appellate attorney in your case nevertheless briefs the issue as plain error. There's no dispute it's error. There's no dispute it's harmful. So your client wins, right? Not if you invited error. And how would you have invited error? You specifically asked for the erroneous instruction.

Would the COA agree that it was invited error? I don't know. But you could avoid that by not asking for the state's instructions. And if nothing else, it's less work.

Judges really don't like being reversed. I base this on the fact that judges who were rarely reversed and who I thought wouldn't have cared about the occasional, inevitable reversal will still complain about it when it does happen.

Consequently, I believe it's always a good thing at any sentencing to have the judge take into account the possibility that even if I'm wrong about the law, there's a chance the COA will think I'm right.

What am I talking about? Let me provide a couple of examples. If you've read many of my blog posts, or read me on the defense lawyer listserve, you know that I believe that when the gun minimum is charged on multiple counts, it must be imposed on the primary offense and only the primary offense. For example, if the defendant is charged with murder with a firearm and felon in possession of a firearm with a firearm, the gun minimum of five years must be imposed on the murder charge (assumingf it's the first gun minimum that defendant has ever faced -- if it's the second gun minimum, it gets a little complicated, in some ways good for the defendant, in other ways bad.) (Why does it matter if it's imposed on the murder charge or, say, the felon in possession? Because if imposed on the felon in possession, the judge has the ability to impose a longer sentence than if it's imposed on the murder charge.)

I have argued this at the trial level, and no judge has expressly said I'm right about the law, but some of them haven't said I was wrong either. The judge simply chose to impose the gun minimum on the most serious count, simply because they wanted to (or so they said) and not because I told them they legally had to. From a judge's point of view, this had the advantage of avoiding the possibility of reversible error. At the same time, it didn't bind them to a legal outcome they would have to follow in future cases.

I personally think in some of the cases at least, the judge was motivated in part to avoid reversible error. Maybe not. There's no way to know for certain. (Incidentally, this issue has been preserved in a number of cases by a number of great attorneys, so we should have a definitive answer within two years.)

I want to give another example of a legal argument that didn't win, yet maybe influenced the outcome of a sentencing. I had a client back for re-sentencing. He was already servicing a life/25 sentence for murder, but that case wasn't back for re-sentencing. It was a separate case in which he got twenty years to be served consecutively to the murder charge that was back for re-sentencing.

As it turned out, the client had done great in prison. Truly impressive stuff. I used that information to argue why she shouldn't run twenty years consecutively to the murder sentence. But I also argued at re-sentencing that any sentence run consecutively to a murder charge was subject to the proportionality analysis under Article I, section 16, of the Oregon Constitution. Specifically, I noted that my client wouldn't serve any of the consecutive sentence unless the parole board had found his rehabilitation was imminent. (And they would likely make that finding, given how well he had done in the past ten years, but who knows.) If Article I, section 16, requires that courts take into account the personal characteristics of the defendant when determining the constitutionality of the long sentence, the fact that rehabilitation is imminent certainly should impact whether the additional twenty years was proportionate.

On the law, the judge disagreed. But she only ran eight years consecutively to the life/25 he was already serving, a substantial reduction to what she had imposed the first time around. Was it due entirely to my client's remarkable accomplishments while in prison? Or did she worry that an additional twenty-year sentence might trigger the proportionality analysis and have the case sent back for a third sentencing? Or was it simply that she recognized the absurdity -- even if it were constitutional -- of adding another twenty years to be served -- and only served -- after the defendant was rehabilitated?

That last question is key. Even if I'm wrong about the application of Article I, section 16, in that situation, there is something totally absurd about a lengthy sentence that's only served after rehabiliation. Even my pro-prosecution, non-lawyer family members think that's crazy.

Again, there is no way of knowing why the judge reduced the sentence or if she would have reduced it to the same degree minus the proportionality argument. That's sorta my point. Judges may reject legal arguments but still be swayed, by either the logic of the legal argument or the risk of reversal, to end up at the same place.

And if the legal arguments don't seem to make a difference at all at sentencing, then at least your client has a shot at re-sentencing, which, per my first post today, can also lead to a much better outcome down the road.

This is the first of two blog posts I want to write today regarding sentencing.

I've handled my share of re-sentencings, sometimes after I handled the original sentencing, sometimes when I hadn't. The observation I most want to make is that judges often won't impose the same sentence even when they could.

That hasn't always been true in my cases but it's been more true than not. The reasons vary. One is that the defendant has done very well in prison and there is a record of it. Other times it is because the defendant is able to express remorse that they weren't able to right after the trial. At least one time I think it was merely because enough time had passed that the judge had forgotten what it was about the trial that caused her to impose a sentence out of anger or pique. Without that emotion behind it, the sentence came back down to earth.

It's impossible to know how much of a role I played, but I did a lot of work in all of those cases. I never treated a re-sentencing as pro forma, except when there really was only one sentence the court could impose at re-sentencing. But more likely, re-sentencings that went well probably did so because of the defendant and things they had done since the original sentencing.

My second observation is this. It wasn't always predictable which clients would do well in prison. I was often surprised by the clients who did truly wonderful and impressive things while incarcerated.

Have these observations changed my practice in any way? Not that I've noticed, but it has reaffirmed my belief in the importance of making as many legal arguments at sentencing as possible, even if the benefit of winning isn't always obvious. So, for example, I'll argue for merger of UUW and Murder with a Firearm. In such cases where merger is appropriate, the merger won't reduce the overall sentence because separate sentences would run concurrently. But by making the argument, either (1) the trial judge will agree and my client will have one less conviction, which is always better than more convictions, or (2) the judge will disagree and if the COA says I'm right, my client will have a shot at a re-sentencing that, if they've done well or the law has otherwise changed in their favor, might reduce their sentence.

(In theory, any re-sentencing on a murder charge might have no chance at reducing the original sentence, if the judge ran all counts concurrently to the mandatory murder sentence, but in my experience, most judges are constitutionally incapable of not tacking on an additional sentence to run consecutively to even a life/25 sentence. There must be some additional cost for going to trial.)

I think there are lawyers who are hesitant to make legal arguments at sentencing, murder sentencings in particular. They want the focus to be on a just and fair sentence, and arguing about the statutes will distract from their argument why life/25 is more than sufficient to satisfy the ends of justice. I think this attitude constitutes gross malpractice, and fortunately I think it's relatively rare. But if you are inclined to think that way, just submit a sentencing memorandum with all the legal arguments, tell the court as to those arguments you're standing on your brief, and then make all the non-legal arguments you want to focus on.

A few months ago, in a blog post at this website, I argued that the Portland City Code prohibition on the open carry of loaded firearms was the statute most likely to fail in light of SCOTUS's Bruen opinion. Now that SCOTUS has dramatically walked back parts of Bruen in United States v. Rahimi, does that change my analysis?

No. There are two things to remember about the city code provision:

(1) it applies to the public generally and not those who may be dangerous

(2) as noted by Bruen, open carry was generally permitted at the time of the 2nd Amendment and often prohibitions of open carry were struck down as violations of the 2nd Amendment.

As for (1), in upholding the law in Rahimi, the Supreme Court noted that § 922(g)(8)(i) is a “focused regulation[],” not a “broad prohibitory regime as in Bruen." Id. at 15. Furthermore, unlike the regulation struck down in Bruen, Section 922(g)(8) does not "broadly restrict arms use by the public generally."

As for (2), see just this one example from Bruen, fn 16: "Beginning in 1813 with Kentucky, six States (five of which were in the South) enacted laws prohibiting the concealed carry of pistols by 1846. See 1813 Ky. Acts §1, p. 100; 1813 La. Acts p. 172; 1820 Ind. Acts p. 39; Ark. Rev. Stat. §13, p. 280 (1838); 1838 Va. Acts ch. 101, §1, p. 76; 1839 Ala. Acts no. 77, §1. During this period, Georgia enacted a law that appeared to prohibit both concealed and open carry, see 1837 Ga. Acts §§1, 4, p. 90, but the Georgia Supreme Court later held that the prohibi�tion could not extend to open carry consistent with the Second Amendment. See infra, at 45–46. Between 1846 and 1859, only one other State, Ohio, joined this group. 1859 Ohio Laws §1, p. 56. Tennessee, mean�while, enacted in 1821 a broader law that prohibited carrying, among other things, “belt or pocket pistols, either public or private,” except while traveling. 1821 Tenn. Acts ch. 13, §1, p. 15. And the Territory of Florida prohibited concealed carry during this same timeframe. See 1835 Terr. of Fla. Laws p. 423.

As noted, the Portland City Code prohibits open carry and it applies to anyone, either of which should be sufficient to strike the law down.

The constitutionality of the law has already been briefed and it waiting on oral argument at the Court of Appeals. There's just no reason not to file a constitutional challenge to the city code, even if, as is often the case, it's the least significant charge in the indictment.

And of course you want to file a motion to suppress, if the open carry is the reason (1) the gun was seized, (2) the reason your client was arrested, or (3) the reason your client was searched, and any of those things resulted in additional evidence.

One side note about felon in possession. Please, please, please make an as-applied argument when you can, putting on evidence that your client is not dangerous, not merely because of the non-violent nature of the underlying felony but also those aspects of your client's life that are consistent with non-dangerousness (e.g., length of time since conviction, employment, family, lack of restraining orders, even lack of traffic tickets to show how law-abiding they are). I already was on record stressing the importance of as-applied challenges, but there are parts of Rahimi (in particular Gorsuch's concurring opinion) that have reinforced my opinion quite a bit.

Assume a statute says either party can do X. That means you can do X, right?

Maybe. Some statutes are very poorly drafted, and what the statute says you can do isn't exactly what the legislature intended when they passed the statute.

On April 11th of this year, the Oregon Supreme Court dealt with this in the context of felony computer crime. The case was State v. Azar. This statute is very broadly written. And it was written in the mid-80s, when the legislature would have had no understanding of how computers would be a part of our daily lives forty years later. So while it's true that the legislature will sometimes intend to address an issue with a statute that covers far more ground than the specific issue they are trying to address, nevertheless, it's hard to argue that they intended it to cover ground they couldn't even imagine.

Consequently, there are times when it is necessary to look at the legislative history to determine whether the legislature in fact intended something far less than the face of the statute would seem to allow. To put it another way, if certain behavior appears to be criminal based on the face of the statute, sometimes you have to look below the surface to see if that behavior is in fact what the legislature intended to make criminal.

We resolve that question under the framework set out in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). Our goal is to determine the intent of the legislature that enacted that provision. Id. at 171. In making that determination, we consider the disputed statutory text in context, together with any available legislative history that we find helpful. Id. at 172. If a statute's intended meaning remains unclear to us following our examination of its text, context, and legislative history, we may turn to general maxims of statutory interpretation for additional guidance. See, e.g., Chaimov v. Dept. of Admin. Services, 370 Or 382, 398 n 7, 520 P3d 406 (2022) (noting limited circumstances in which it may be appropriate for courts to consider general maxims of statutory interpretation).

Azar at ____.

As you may note, Gaines was passed in 2009. Prior to then, if the statute wasn't facially ambiguous, you couldn't dive into the legislature history. You were stuck with the face of the statute.

Getting back to my original question. Statute says you can do X. But whether you can do the specific thing you want to do, you have to ask yourself, is this specific thing what the legislature intended to allow you to do?

Which brings us to the child hearsay exception to the hearsay rule.

FOURTH THEORY OF MERGER

Lesser-Included Offenses

This has a lot of overlap with the Third Theory of Merger. Examples #3 and #4 immediately above would also arguably fall into this section, but generally when we think of lesser-included offenses, we think of assault IV as a lesser-included of assault III or assault II for example.

A crime is a lesser-included offense if it includes all but one or two of the elements of the higher offense and does not contain any additional elements.

Generally, robbery in the second degree (purporting to have, for example, a firearm) is not a lesser-included offense of robbery in the first degree (armed with a deadly weapon) because the former offense has an element the latter offense does not (that is, displaying or pretending to display a dangerous weapon). But robbery in the second degree might be converted into a lesser-included offense if the robbery in the first degree count includes the additional allegation of “with a firearm.”

Example #1: Reckless burning can be a lesser-included offense of arson. State v. Leckenby, 200 Or App 684 (2005).

EVIDENCE - Child-sexual-abuse hearsay exception

INTERFERENCE WITH MAKING A REPORT - Sufficiency EVIDENCE - Business-records hearsay exception

ACCUSATORY INSTRUMENTS - Dates