Blog
How to Keep Out The Forensic Interview
by: Ryan Scott • May 21, 2025 • no comments
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.
Failure to Register Argument
by: Ryan Scott • May 20, 2025 • no comments
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.
Are police inventory policies unconstitutional?
by: Ryan Scott • May 20, 2025 • no comments
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 unlawfulness of UUV license suspensions: back from the dead
by: Ryan Scott • May 20, 2025 • no comments
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).
Three Challenges to Felony Murder
by: Ryan Scott • May 18, 2025 • no comments
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 (live, 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.
