Blog
The Shadow Challenge
by: Ryan Scott • May 6, 2025 • no comments
“Shadow Challenge” is a type of motion to controvert, and the name comes from The Hollow Men by T.S. Eliot:
- Between the idea
- And the reality
- Between the motion
- And the act
- Falls the Shadow.
Police get a search warrant. When they do, there is probable cause that evidence relevant to the crime will be found in the location to be searched. But there's many a slip between the cup and the lip.
If the police – after they have obtained a search warrant, but prior to its execution – obtain information that undermines the probable cause requirement, the Fourth Amendment to the United States Constitution obligates them to return to the magistrate for a new finding of probable cause. United States v. Marin Buitrago, 734 F2d 889 (2d Cir 1984). See also, Washington v Reichenbach, 153 Wash 2d 126, 101 P3d 80 (2004); United States v. Bowling, 900 F2d 926 (6th Cir 1990).
Justice Bushong Highlights A Few Improper Closing Arguments
by: Ryan Scott • May 5, 2025 • no comments
In State v. Mendez Perez, 373 Or 591 (2025), the Oregon Supreme Court looked at whether a handful of arguments made by the prosecutor in closing/rebuttal merited reversal, when the defendant did not object to those arguments. The court concluded the various statements did not merit reversal.
In his dissent, Justice Bushong, joined by Justice James, suggested that the court's blanket approach to "plain error" may not be appropriate in every situation where an error is unpreserved. That discussion, which is highly valuable, is something for appellate attorneys to consider, and I don't plan to get into it here.
Justice Bushong goes on and highlights some -- but not all -- of arguments that are inappropriate and objectionable when made by the prosecutor. His list starts on page 617 of the opinion. It is a good list, and I highly recommend reviewing it before your next trial. Note also that Justice Bushong recommends a law review article -- Michael D. Cicchini, Combating Prosecutorial Misconduct in Closing Arguments, 70 Okla L Rev 887 (2018) -- for additional examples of inappropriate argument.
Every MIL Ruling Is Tentative
by: Ryan Scott • May 4, 2025 • no comments
Recently, a prosecutor conceded a motion in limine that the defense had filed to keep out some of the state's evidence. He agreed it should be excluded, but he wanted it on the record that it might become admissible if the defense opens the door.
Sure, I said. As far as I'm concerned, that's always true. Every MiL ruling is tentative.
If you lose a pretrial motion in limine to exclude a certain part of the state's evidence, you need to be prepared to raise it again, depending on how the evidence comes in.
As the Oregon Supreme Court recently reiterated in State v. Akins:
- To the extent that defendant’s OEC 403 challenge in this court is based on how the evidence came in at trial, not on the trial court’s pretrial ruling on defendant’s motion in limine,that challenge is unpreserved for appellate review because defendant did not assert an OEC 403 objection when the testimony was offered and received at trial, as noted above. See Pitt, 352 Or at 574 (stating that, after the trial court has denied a pretrial motion to exclude evidence, parties should make “the same or other objections, if war-ranted, when a party offers the evidence during trial”); Perry, 347 Or at 118 (stating that, even though the trial court had denied a defendant’s pretrial motion to exclude evidence, “it was defendant’s responsibility to point out to the trial court” any additional objections to the evidence when it was offered at trial). Because our decision in this case is based on the record at the time of the motion in limine, it does not preclude trial courts in other cases from assessing whether such testimony is inadmissible under OEC 403 in the con-text in which the testimony may be offered at trial.
So for example, if the judge allows in expert testimony about "delayed disclosure" before trial starts, you'll want to renew the objection if the expert happens to say that such disclosures go up after the middle school health class has done a segment on abuse, and the complainant in your case only came forward at the same time.
Akins again:
- Expert testimony connecting the expert’s explanation of delayed reporting to the specific reasons offered by the victim for the delay could be inadmissible as vouching. In other instances, the probative value of such testimony may be substantially outweighed by the danger of unfair prejudice to the defendant, making the evidence inadmissible under OEC 403 or at least requiring an appropriate limiting instruction.
Quick list of sentencing arguments for most murder convictions
by: Ryan Scott • May 2, 2025 • no comments
1. Any lengthy sentence imposed consecutively to the murder sentence is arguably unconstitutional under Article I, section 16, because the defendant does not begin serving that sentence until after parole board has found they are likely to be rehabilitated soon. A lengthy sentence that you only serve after essentially being rehabilitated is insane and, almost by definition, disproportionate.
2. The gun minimum must be imposed on the primary offense (assuming it's attached to the primary offense). This is because there is no statutory authority for deferring the gun minimum to a later count. So no more imposing the gun minimum on the felon in possession and running it consecutively to murder w/ a firearm.
3. UUW merges with Murder w/ a firearm.
All of the arguments can be found on the Library of Defense, and of course I will always provide them to anyone who asks.
The Easiest Merger Argument Defense Attorneys Still Aren't Making
by: Ryan Scott • May 2, 2025 • no comments
Assume defendant is accused of shooting at someone and missing. He is ultimately convicted of Attempted Murder w/ a firearm and UUW w/ a firearm (the latter for discharging the firearm at another person, as well as alternative theories the jury never specifically adopts).
Okay, we call all agree if the defendant is sentenced on both, the two sentences would have to run concurrently. But why stop there? The counts merge into a single conviction, and while it may not make a difference in their overall sentence, one conviction is always better than two. A secondary consideration is, if you lose the merger argument, and you win on appeal, you might have a shot at re-sentencing that maybe would give your client some relief, either because the law has changed or your client has done well in prison. Maybe not based on these two charges, but other charges (like Attempted Assault and UUW, which may not have a mandatory minimum.)
Anyway, merger of those two counts is an easy enough argument to make. And yet trial attorneys -- those who have been practicing for ten or twenty or thirty years -- don't make the 60-second effort. I am utterly baffled by this fact. And don't embarrass yourself by saying to me, UUW has a element attempted murder does not (the weapon). It's true but irrelevant. Attempted Murder w/ a firearm has an element of using a dangerous weapon.
Honestly, this a no-brainer, and I truly can't understand why the argument isn't routinely made.
The Easiest -- or is the hardest? -- Part of Being a Criminal Defense Lawyer
by: Ryan Scott • April 1, 2025 • no comments
There are a lot of clever, creative, hard-working criminal defense lawyers in Oregon. And reflecting that qualities, they come up with -- or rediscover -- legal arguments no one else is currently thinking about. And those arguments have the potential to benefit their clients tremendously, even if the arguments don't prevail until they get to a higher court.
But the great thing about criminal defense in Oregon is, you don't have to be particularly creative or clever to make those same arguments. You just have to be in a position to hear about them. One way, for example, is to check out the Oregon Supreme Court's press announcements on every second or third Friday. It will the cases, if any, the Supreme Court has granted review on, a majority of which will be either criminal cases or criminal-adjacent. Had you checked last Friday, you would have learned that the Supreme Court granted review to the constitutionality of Oregon's felony murder scheme. If you've got a felony murder client, you've just been alerted to a motion you can file that may result in your client's felony murder charge being dismissed.
(For the non-lawyers out there, felony murder is unlike any other murder. It doesn't require intent to kill the victim and it doesn't require the defendant personally kill the victim.)
So how great is this? The trial lawyer in that case -- State v. Monaco, fyi -- and the appellate attorney have done all the heavy lifting. They have researched the issue, found the case law, and made an argument sufficiently compelling that the Supreme Court thinks it has merit. Once you've got the briefs, it will maybe take you a half-hour to write your own motion, which may -- down the road -- either result in a dismissal of the charge or, if the prosecutor is smart, get you a better plea offer to avoid the possibility of dismissal. (The morning the press release came out, I mentioned it to a prosecutor, and her reaction was not dismissive. She probably would have been dismissive if I had told her the basis for the legal challenge. Rather, she was "not dismissive" because she believes it's entirely plausible the Oregon Supreme Court will make a decision that could put every felony murder in doubt. For negotiation purposes, that's just as valuable to you as an argument the prosecutor might find credible.)
I give this example, because I think taking five minutes once very 2-3 weeks to look at the Supreme Court press release is, relative to the amount of effort it takes, perhaps one of the most valuable uses of your time, even recognizing you don't have a lot to spare. But even if you don't make a habit of doing that, you would have heard the news anyway if (1) you were on the defense listserve and (2) read my e-mail on the topic. (Not by any means the same thing.)
If you don't want to be on the listserve (I get it), there are other things you can do to keep abreast of new arguments. You can go to OCDLA conferences. You can have friends who love to talk about the law and arguments they've recently heard about. You can read the Library of Defense. You can read the full opinions of the COA to look for new and novel issues the COA rejected but not on the merits. Or COA dissents, where the dissenter made a pretty compelling argument and you think there is a chance the issue will get to the OSC.
But most of all -- and this is either the easiest or hardest thing to do, depending on your personality -- you've got to get excited about new and novel arguments.
Most attorneys don't. And if they don't get excited, they are less likely to do any of the things I mentioned above. Even when they hear about an argument, they are unlikely to make it, because the time it would take to ask for a sample motion and change the caption doesn't seem worth the effort.
I suspect, but I don't know, that the attorneys who don't get excited about new and creative ways to help their clients are also the least happy attorneys. If you don't find joy in a new and fun argument handed to you on a silver platter, an argument that might give you leverage in negotiations or a win at the appellate courts, you are missing out on one of the more significant pleasures of being a defense warrior. Yes, there are other less-cerebral ways of finding joy in the job, but this one is perhaps the easiest.
Or, if you're not interested, the hardest.
A Finding of a Sufficient Pause Must Be Made by a Jury
by: Ryan Scott • March 24, 2025 • no comments
Procedurally, the Court of Appeal's opinion State v. Ballangrud, issued on March 12, 2025, is a bit complicated. Substantively, the bottom line is this:
At least one judge on the Oregon Court of Appeals believes that one of the findings necessary to defeat merger -- a sufficient pause between crimes that would otherwise merge -- is a jury question under the 6th Amendment of the US Constitution. It's like an Apprendi/Blakely factor but even more profound. A finding of a sufficient pause doesn't increase the sentence for a conviction. It increases the number of convictions. Could anything be more a jury question than how many convictions a defendant ends up with? If it's a jury question, the state must give notice no later than 60 days after arraignment, and, absent a waiver, it must submit the question of a substantial pause to the jury.
This opinion was expressed by the Chief Presiding Judge in a concurrence. The majority rejected the argument, at least in part, because it concluded -- wrongly -- that the defendant-appellant had improperly argued the issue to the court (something the concurrence rejected). But even the majority left open the possibility that if properly raised, it would hold the question of a sufficient pause should be submitted to the jury. And whatever the COA ultimately does hold, the issue is of such importance that I would assume the Oregon Supreme Court will eventually grant review.
Please preserve this now. Raise it at sentencing, arguing that the state never go notice of an intent to submit the question to the jury, much less actually submitted it. For argument, just provide the judge a copy of the concurrence in Ballangrud.
Good luck!
PS: And yes, I wrote multiple blog posts arguing this exact thing over ten years ago.
Is Actual Innocence a Viable Claim in Post-Conviction?
by: Ryan Scott • February 21, 2025 • no comments
Oregon Supreme Court has announced its intent to answer that question.
On February 20, 2025, the Supreme Court: 1. Allowed petitions for alternative writs of mandamus in:
Jordan Perkins v. Corey Fhuere (S071631) (original mandamus proceeding involving an order of the Marion County Circuit Court, Case No. 23CV53183) relator was convicted of sex offenses against a victim and sentenced to prison. The victim subsequently recanted their testimony, stating in a notarized declaration that their sexual contact with relator had been consensual. Based on that recantation, relator petitioned for post-conviction relief, alleging the stand-alone claim of actual innocence and that his conviction and sentence violated the state and federal constitutions. The state moved to dismiss the petition for failure to state a claim, on grounds that relator's stand-alone actual innocence claim was not a basis for postconviction relief. The trial court agreed with the state, dismissed relator's petition, and relator petitioned for a writ of mandamus.
The Oregon Supreme Court issued an alternative writ, directing the trial court to either vacate the order entered November 27, 2024, granting the state's motion to dismiss and dismissing with prejudice relator's Amended Petition for Post-Conviction Relief, and to enter an order denying that motion; or, in the alternative, to show cause for not doing so.
The issue in this mandamus proceeding is:
Whether a stand-alone claim of actual innocence may provide a basis for post-conviction relief.
Sexual Penetration and Contaminated Memories
by: Ryan Scott • February 1, 2025 • no comments
"[The] phenomenon of false memory, and the circumstances that can contribute to the creation of a false memory, are complex and beyond the experience of ordinary jurors. . . ."
State v. Dye, 286 Or App 626 (2017)
There are a number of attorneys who are skeptical of the benefits of hiring a memory expert in a child sex abuse case (or any other case for that matter). Often, these attorneys -- many of whom are in their fifties or sixties -- have never actually consulted with a memory expert. By consult, I don't mean a five minute conversation but actually hiring them to review the case. They will also tell you that the prosecutors they've talked to will claim they've never lost a case in which the defense hired a memory expert. They will also tell you, contrary to the quote from State v. Dye above, that jurors understand the idea of suggestion and don't need an expert to point it out.
I'm not going to get into a whole long argument why I think these attorneys are wrong and are committing malpractice when they fail to have a meaningful consultation with a memory expert when there is any possibility the accusations are based on a false memory. But I do want to give one very narrow, very specific example that comes up frequently in sexual penetration cases. Since sexual penetration for a child under 12 carries a mandatory 25 year sentence, the punishment is far more severe than a sexual abuse I, which is "only" 75 months.
Chess Moves: Bench Trials, Severance Motions and OEC 404
by: Ryan Scott • January 9, 2025 • no comments
Yesterday, the Court of Appeals issued an opinion in which the primary issue was the trial court's denial of a motion to sever. The Court never reached the merits because they found any error in denying severance was harmless. So this post really isn't about severance at all, but about how judges will try to immunize their bad rulings when the defendant waives jury, and the most effective way to stop them from doing so.
Challenging Language from Standard Instruction 1005
by: Ryan Scott • October 30, 2024 • no comments
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.
An Easy Demurrer (Failure to Register as a Sex Offender)
by: Ryan Scott • October 4, 2024 • no comments
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.
Antoine Demurrers and Election
by: Ryan Scott • September 9, 2024 • no comments
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. Their 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 was 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.
