Blog
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.
