Case Reviews
From OCDLA Library of Defense
- Go here to see a list of:
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Oregon Appellate Ct - July 22, 2015
by: Abassos, Brook Reinhard, Matthew Watkins, Jonathan Heritage, Joseph Hampton, Robert Taylor, Sean McGuire, Kit Taylor and April Yates • July 22, 2015 • no comments
- Search and Seizure – A Person Has a Protected Privacy Interest in the Private Entry Road to Their House If A Reasonable Person Would Feel Excluded
- Prior Bad Acts – Traditional OEC 403 Balancing Remains Valid Despite Williams
- Evidence - A Defendant is Entitled to Cross on Bias, Even When the Bias Relates to Otherwise Protected Juvenile Adjudications
- Motion to Sever - Sex Abuse With 2 Victims - No Prejudice Even Though Defendant Testifying in One Case and Not the Other
- Prosecutorial Misconduct – Court Should Have Granted Mistrial Where DA Used Propensity Argument in Closing After Previously Being Admonished
- Sentencing Modification – Defendant Has a Right to Be Present for a Non-Mandatory Change To a Sentence
- Stalking Order – Where an Expressive Contact Does Not Objectively Communicate Intent to Harm, the Contact is Not a “Threat” and Thus Not a Qualifying Contact
- TPR - Parent Must Be In Contact With the System to Excuse a Failure to Appear at a Termination Hearing
- TPR – Terminating the Rights of an “Unfit” Parent is Not Necessarily “In the Best Interest of the Child"
- TPR – The Basis For Termination of Parental Rights May Not Exceed the Basis for Jurisdiction
- Dependency - Jurisdiction– Narcolepsy and Substance Abuse Do Not Constitute Legally Sufficient Evidence of Nonspeculative Harm
- Dependency - Jurisdiction – Joint Custody With Unfit Parent and Substance Abuse Do Not Constitute Legally Sufficient Evidence of Nonspeculative Harm
- Appellate Procedure – Failure to Give a Prior Bad Acts Instruction Is Not Plain Error Because The Law Is Currently Unsettled
- Parole Hearing – Board of Parole May Place Limits on Who Can Accompany an Inmate at a Hearing
- Parole Board Hearings - Impaired Petitioners Are Entitled to Both Appointed Assistance and a Personal Representative
Oregon Supreme Ct - July 16, 2015
by: Abassos and Tyler Williams • July 16, 2015 • no comments
- Vouching – Sex Abuse - New Test for the Admissibility of a Medical Diagnosis of Sex Abuse Where Physical Evidence Is Present
Oregon Appellate Ct - July 15, 2015
by: Sean McGuire and Abassos • July 15, 2015 • no comments
- Appellate Procedure - Invited Error – Defense Counsel’s Responses to Court’s Questions About Hourly Rates Do Not “Invite” an Erroneous Decision to Impose Attorney’s Fees.
Oregon Supreme Ct - July 9, 2015
by: Abassos • July 9, 2015 • no comments
- Traffic Stops - An Officer May Not Inquire About Weapons As a Matter of Course
Oregon Appellate Ct - July 8, 2015
by: Abassos, Sean McGuire, Tyler Williams and Kit Taylor • July 8, 2015 • no comments
- Resisting Arrest - The Officer’s Subjective Belief About Use of Force Is Not at Issue In a Self-Defense Case
- Search and Seizure - It Is Not a Search for Police to Use a Peer to Peer Network to Find Child Porn
- Dependency – DHS Must Be a Party to Have Standing to Challenge a Guardianship Judgment
- Dependency – Method Of Service Of Process in Dependency Proceedings Need Not Precisely Comply With Statute
- Parole-Exit Interview – A Prisoner Does Not Have a Right to Call Witnesses or Cross-Examine the Board's Witnesses
- Parole – Murder Review Hearing - The Board's Decision About Whether a Prisoner Has a PSED Must Be Supported by an Evaluation; It Need Not Follow the Evaluator's Diagnostic Conclusion
- Appellate Procedure - Right For the Wrong Reason Doesn't Apply Where the Record Would Have Developed Differently Had the Right Reason Been Raised
- Appellate Procedure - Harmless Error - PCR Court's Denial Of Petitioner's Request to Call Live Witnesses
Oregon Appellate Ct - July 1, 2015
by: April Yates, Sean McGuire, Tyler Williams and Abassos • July 1, 2015 • no comments
- Probable Cause – A Party’s “Host” Is Not Especially Likely to Have Furnished Alcohol to Minors Found in Possession
- Court Appointed Attorney Fees – Recent Employment ≠ Ability to Pay
- Merger - It Is Not Obvious That Unlawful Use of a Weapon-Firearm and Felon in Possession of a Firearm Merge
- Parole - An Inmate Is Not Entitled to a Psych Eval for a Murder Review Hearing
Oregon Appellate Ct - June 24, 2015
by: Abassos, Sean McGuire, April Yates and Tyler Williams • June 24, 2015 • no comments
- Hearsay -- Medical Diagnosis Exception Does Not Require Declarant to Identify Direct Cause of Injury or Illness
- Consent to Search Following an “Amiable Conversation” With Police is Voluntarily Given
- Dependency - Jurisdiction Requires Non-Speculative Danger
US Supreme Ct - June 18, 2015
by: Abassos • June 19, 2015 • no comments
- Confrontation - A Child's Accusatory Statement Made to Someone Who's Not a Police Officer Probably Does Not Trigger Confrontation
- Atkins - Cutoff for Intellectual Disability -
Oregon Supreme Ct - June 18, 2015
by: Breinhard • June 19, 2015 • no comments
- Miranda Violations, Consent to Search and Attenuation
Oregon Appellate Ct - June 17, 2015
by: Abassos, April Yates, Tyler Williams and Sean McGuire • June 17, 2015 • no comments
- Proportionality - Public Indecency Alone May Not Form the Basis for a Sex Offender Life Sentence
- DUII -“Retrograde Extrapolation” Using Widmark Is Scientifically Valid
- DUII-Agreeing to Take a Breath Test After Being Read the Implied Consent Warnings Counts as Voluntary Consent, Absent an Oppressive Atmosphere.
- Search & Seizure – Consent to Search a Car Extends to a Closed Backpack in the Car
- Stops - Grabbing Defendant's Boat and Requesting Fishing Tags Was a Show of Authority
- Merger - Attempted Rob I and UUW Don't Merge
- PCR - A Judgment of Denial Must State the Basis of Denial
Oregon Appellate Ct - June 10, 2015
by: Abassos, Tyler Williams, April Yates and Sean McGuire • June 11, 2015 • no comments
- Extension of a Stop – Rodgers/Kirkeby Applies to Non-Traffic Stops
- Invalid Waiver of Counsel - Prejudice - Misunderstanding a Plea Deal
- Failure to Merge Convictions Is Reviewable By the Appellate Court
- Civil Commitments – Failure to Inform the Defendant of Her Right to Subpoena Witnesses Is a Plain Error (Per Curiam)
- Court-Appointed Attorney’s Fees - A Trial Court Must Consider Defendant’s Ability to Pay (Per Curiam)
Oregon Supreme Ct - June 4, 2015
by: Abassos • June 4, 2015 • no comments
- PCR - Prejudice - Where the Outcome of Trial is at Issue for Prejudice, the Standard Is Less Than "Probable" But More Than "Possible"
Oregon Appellate Ct - June 3, 2015
by: Abassos, Tyler Williams, April Yates and Kit Taylor • June 3, 2015 • no comments
- Disorderly Conduct II - People In a House Who Know Each Other Are Not "The Public"
- Interfering With A Peace Officer - An Order Is Lawful If It Is Lawful On Its Face
- Stops – "I'm going to let you go" Does Not Convey That a Stop Has Ended
- Stalking Protective Orders - Subjective Alarm Requires Actual Concern for One's Well-Being
- PCR - Late Filing - Bad Legal Advice and Incarceration Don't Suffice For the Escape Clause
- A DMV Order Dismissing Breath Test Suspension Is Relevant to Officer's Credibility at a DUII Trial
- Attorney Fees Require Ability to Pay
- Consent and Exploitation - The State May Not Make an Exploitation Argument for the First Time on Appeal
Oregon Appellate Ct - May 28, 2015
by: Abassos, Kit Taylor, Tyler Williams and Jillian Kenchel • May 28, 2015 • no comments
- Med Marijuana - Affirmative Defense - Medical Marijuana Advice Must be Given Within 12 Months Prior to Arrest.
- Reasonable Suspicion - Possession of Drugs - {drug history + drug use + indexing + exiting vehicle quickly}
Oregon Appellate Ct - May 20, 2015
by: Abassos and Kit Taylor • May 20, 2015 • no comments
- A Person Has a Possessory Interest in a USPS Express Mail Package In Transit
- Burglary 1 - A Breezeway Can Be Part of a “Dwelling"
- DUII - A Person With a CDL is Ineligible for DUII Diversion, Regardless of the CDL's Validity
- Sex Abuse - OEC 412 - Evidence of Prior Consensual Sex is Admissible When the State Opens the Door By Bringing in the Prior Sexual Contacts
- OEC 801(4)(a)(B) - Prior Consistent Statements to Rebut a Motive to Fabricate Must Have Been Made Prior to When the Motive Existed
- Attorney Fees - The Court Must Determine Ability to Pay
- Merger - Attempted Agg Murder with Two Victims Does Not Merge With Both Lesser Counts of Attempted Murder for Same Incident/Same Victims
- Probation Revocation - A Sanction Cannot Exceed the Maximum Determinate Sentence
- Dependency Jurisdiction - The Focus Is On the Child's Welfare, Not the Parent's Conduct
Oregon Supreme Ct - May 14, 2015
by: Abassos • May 14, 2015 • no comments
- Identity Theft - Signing a Fingerprint Card and Property Receipt With a False Name is Neither "Uttering" Nor "Converting to One's Own Use"
Oregon Appellate Ct - May 13, 2015
by: Abassos and Kit Taylor • May 13, 2015 • no comments
- Probable Cause - Behavior Intended to Assert One's Privacy Rights Cannot Contribute to PC
- Waiver of Counsel is Not Knowing If There Is Only an Abstract Appreciation That It Is Risky
- It Is Not a Search When Police Observe and Download Files Shared on a Peer to Peer Network
- UUV - Keeping a Vehicle for Three Weeks on a One-Day Rental Contract is a "Gross Deviation From the Agreement"
- DUII - ORS 813.011 - Mandatory Minimum Sentence for Repeat Offenders Cannot be Suspended or Reduced
- 'Imposition of Attorney Fees is Appropriate if Court Reasonably Infers Defendant May Have the Ability to Pay in the Near Future
- OEC 403 - Exclusion of Relevant Rebuttal Evidence is Permissible to Avoid a “Trial within a Trial”
- Sodomy I - Forcible Compulsion Must be Knowing
- Child Sex Abuse - Vouching
- FAPA Restraining Order – Trial Court's Coercive Statements Violated Defendant’s Right to Testify
- TPR - Pattern of Conduct Not likely to Change is Sufficient to Terminate Parental Rights
- TPR - Short-term Treatment Progress and Desire to Change Not Sufficient to Prevent Termination of Parental Rights
- TPR - Unavailability to Parent Due to Incarceration Alone is Not Sufficient Proof of Serious Detriment to Child
Oregon Appellate Ct - May 6, 2015
by: Abassos • May 6, 2015 • no comments
- Search Warrant - Probable Cause - Possession of a Firearm After a Shooting
- Burglary - Public Area of Hospital After Hours is Not Open to the Public
- Search and Seizure - Probable Cause - Fraudulent Tags + Furtive Behavior + Sketchy Story + No Insurance or Bill of Sale = PC
- Prior Bad Acts - Prior Solicitations For Murder in a Solicitation for Murder Case Against the Same Victim
- Termination of Parental Rights - The Erroneous Appointment of a Guardian Ad Litem Renders the Proceeding Fundamentally Unfair
- Parole Board Reviewability - A Decision Not to Reconsider an Order Is Not a Itself a Final Order and, Therefore, Not Reviewable
Oregon Appellate Ct - April 29, 2015
by: Frangieringer and Abassos • April 30, 2015 • no comments
- Search Warrants - 11 Ounces of Weed and an Expired Medical Marijuana Card is Enough for a Warrant
- Stops - Reasonable Suspicion – "Couple of Guys Smoking Something"
Oregon Supreme Ct - April 23, 2015
by: Frangieringer and Abassos • April 23, 2015 • no comments
- Witness Tampering - The Victim is the State, Not the Witness
