Blog
A New Old Other Bad Acts Special Jury Instruction
by: Ryan Scott • September 16, 2025 • no comments
There are a number of cases -- particularly child sex cases -- that include "other bad acts." The other bad acts are not necessarily offered to prove the defendant committed the act at issue (touching the breast, for example) but to prove that he did so with a sexual purpose. In other words, the other bad acts are not relevant to the actus reus, only the mens rea.
In that situation, the defendant is entitled to certain jury instructions, the goal of which is to limit the jury's consideration of those other bad acts to the purpose for which they are offered.
Consequently, in a case, for example, where the defendant is, say, a gym teacher charged with sexual contact with a minor (A), and the state wants to offer allegations that defendant touched a different minor (B) at a different school, the defendant might be entitled to the following instructions:
- (1) You may only consider the allegations involving B when deciding whether [defendant] had a sexual purpose when touching A.
- (2) This means you must first decide if [defendant] touched A's breast. You may not consider allegations involving B when you make that determination.
- (3) If you find that there was contact with A's breast, you must decide if it was done for a sexual purpose. Only then -- and only for that purpose -- are you allowed to decide if the allegations involving B are true.
- (4) If you find the allegations against B are true, then and only then should you consider them when deciding if the contact with A was done with a sexual purpose.
First, let me give full credit to Kyle Krohn for walking me through this analysis. I simply misread the case law until he patiently explained it to me. Hopefully, these instructions accurately reflect and capture his analysis.
Second, you will notice that I have essentially turned one instruction into four. That is done on purpose. I always do it that way. If the trial court doesn't give the instructions at all, and the COA thinks I'm mostly right but quibbles with some of the language in one sentence (which could be fatal to the appeal if presented as just one instruction), the case may still be reversed if not giving the 3 remaining instructions was error.
Third, the case law supporting this are Leistiko and Pitt.
Fourth, don't feel bad if you don't get this instruction. Child sex cases are hard to win under the best of circumstances, and this will give you a good shot at appeal.
Fifth, a smart prosecutor may not agree, but they won't object to those instructions out of fear of giving you an issue for appeal.
Sixth, these instructions could have broad application, but they will have to be modified for your specific case and the exact reason the other bad acts are coming into evidence. Not all "other bad acts" go to mental state. Those instructions will get tricky.
The State's Likely Response to Bravo-Chavez
by: Ryan Scott • September 12, 2025 • no comments
The Court of Appeals released State v. Bravo-Chavez, 343 Or App 326 (2025) this week, re-affirming their approach to pre-trial election previously set out in the Antoine cases, as well as State v. Payne.
This was a big deal, because the AG's office had maintained the position that there was no such thing as "pre-trial" election, and if it did exist, it was entirely discretionary with the trial court. A number of trial court judges seemed to think the same. And I suspect that will continue to be the AG's position when they petition for review to the Supreme Court.
But for now, the Court of Appeals has made it clear that a defendant has "a right" to pre-trial notice, and that that right encompasses the right to have the state elect, when there is doubt about the exact nature of the charges.
- The state argues that in “resident child abuser” cases, in which the victim typically testifies in a generic and undifferentiated way to repeated acts of abuse over a sub-stantial period of time, then “no reason exists to require” the state to make an election before the close of the state’s case-in-chief, and the state may not be able to make an intelligent election until after the victim testifies. But that argument ignores a defendant’s constitutional and statutory right to notice of the charges. The purpose of a motion for pretrial election is to ensure that defendants have notice “ ‘of the specific criminal acts that the state would prosecute at trial, in time for defendant[s] to tailor [their] defense to those specific incidents.’ ” Payne, 298 Or App at 421 (quoting Antoine I, 269 Or App at 79).
Bravo-Chavez, 343 Or App at 339.
The other key takeaway from Bravo-Chavez is that it may not be enough for prosecutors to elect by way of saying "first time" or "last time." It was not good enough in this case, but that may have had more to do with the fact that the trial judge did not think it was good enough, and such a finding was within the scope of her discretion. See fn 8.
I suspect the state will misread that last point. A defendant has a right to pre-trial election when there is a need for it. That's not within the discretion of the trial court. Whether the state's election, once made, is sufficient may be something the appellate courts will defer to the trial judge on. Or maybe not. We don't yet know.
In other words, in addition to the state arguing to the Supreme Court that Bravo-Chavez is wrong, the state is likely to insist that whether to require election is still discretionary with the judge. The state will argue that the trial judge exercised her discretion and it was upheld, but a judge could just as easily exercise their discretion the other way. That is not supported by the opinion. Adequate notice of what they have been charged with is a defendant's statutory and constitutional right. And because it is a right, a defendant only needs to show that they cannot tell the bases for the charges. A defendant does not have to show ahead of time how and why he is prejudiced by the denial of that right. Yes, there is still a harmless error analysis, but no affirmative duty to prove prejudice when a defendant has a right to the information.
The state may also argue that failing to demur to the indictment (that is, an Antoine demurrer) means the defendant has waived the right to an election. As the court noted, that was not raised in this case, but the state has made that argument in a case under advisement. See fn 6.
I would note that there are a handful of "election" cases that have already been briefed and argued at the COA, and it is very likely any ambiguity still left after Bravo-Chavez will be answered very quickly.
Finally, I want to express my admiration to those of you who were intelligent and aggressive enough to make these election arguments in the face of scoffing and dismissal from prosecutors and judges. Your clients were well-served.
How Should I Start Jury Selection? The Court of Appeals Just Told Me.
by: Henry Oostrom-Shah • August 17, 2025 • no comments
How should I start jury selection? The Court of Appeals just told me—and maybe you, too. Yes, you heard that right. As a new guy who graduated law school in 2023, I’ve often struggled with breaking the ice during jury selection—and doing so in a way that advances my trial theory.
Thankfully, the Court of Appeals (O’Connor, J.) just released an opinion that tells trial lawyers how to pick a jury. Specifically, the opinion in State v. Pugh suggests how we can set up voir dire to ensure the trial judge strikes unfriendly jurors. 341 Or. App. 435, 439–40 (2025). And, if the trial judge denies our for-cause challenges, how we can get the appellate court to reverse a guilty verdict.
Pugh reminds us to sprint to bias as soon as we stand up in front of the panel.
Primer on Preserving As Applied Challenges to Gun Laws
by: Henry Oostrom-Shah • July 30, 2025 • no comments
The State has charged your client with felon in possession of a firearm where their only felonies are old or non-violent crimes. File a pre-trial motion to dismiss. Demand a hearing. At that hearing, show the judge that your client is no longer a danger to others. Call witnesses to talk about how safe and law-abiding your client is. Bring in employment, treatment, and schooling records. Talk about the lack of subsequent violent criminal history. Because your client is no longer a danger, they still have a constitutional right to bear arms.
More follows below, including helpful federal and state cases to support your arguments.
Does the Lack of a Mental State Render Most Major Sex Crimes Unconstitutional?
by: Ryan Scott • July 17, 2025 • no comments
The Oregon Supreme Court is going to hear argument in September in the case of State v. Monaco. The conviction was for felony murder. One of the "questions presented and proposed rules of law" identified in the opening brief is as follows:
- Third Question Presented. Does ORS 163.115(1)(b), Oregon’s felony murder statute, violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution?
- Proposed Rule of Law. This court has interpreted ORS 163.115(1)(b) as creating a presumption of a culpable mental state for the causation-of-death element of felony murder, by the defendant’s commission or attempted commission of the underlying felony. Such a legal presumption violates due process because it is inconsistent with the presumption of innocence, relieves the state of its burden to prove every element of the offense, and invades the province of the jury. In the alternative, it violates due process by establishing a strict-liability offense for a violent felony.
My question, which is in the larval stage of development, is this: Are any of the constitutional principles on which the Monaco argument relies applicable to major sex crimes where no mental state at all applies to the element that makes a defendant guilty (the age of the victim in a Jessica's Law case) or where no mental state applies but the defendant has the ability to raise an affirmative mental state defense (sex with a sleepy or intoxicated person)?
Article I, Section 16, Opportunities
by: Ryan Scott • June 17, 2025 • no comments
Article I, section 16, of the Oregon Constitution states:
- “Excessive bail shall not be required nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.”
The proportionality provision requires a “comparative relationship” between punishments and the offenses for which they are imposed:
- “The term ‘proportion’ indicates a comparative relationship between at least two things. See, e.g., 2 Noah Webster, An American Dictionary of the English Language 45 (1828) (“proportion” indicates a “comparative relation”). Here, the two things being related are “penalties” and “the offense,” and the provision requires that the penalties for each particular offense be “proportioned”—that is, comparatively related—to that offense. The strong implication of that requirement is that a greater or more severe penalty should be imposed for a greater or more severe offense and, conversely, that a less severe penalty should be imposed for a less severe offense.”
State v. Wheeler, 343 Or 652, 655-56, 175 P3d 438 (2007)
The test for making proportionality determinations has “at least three factors” to consider, including: “(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant.” State v. Rodriguez/Buck, 347 Or 46, 58, 58 n 6, 217 P3d 659 (2009).
Buck/Rodriguez involved Measure 11 crimes, requiring a 75 month mandatory minimum sentence. But the actual behavior was rather minor, and therefore the 75 month sentence was overly severe.
In addition, the Oregon Supreme Court has held that characteristics of the defendant plays a significant role in determining if a sentencing is disproportionate. In State v. Ryan, the Court held:
- "Evidence of an offender's intellectual disability therefore is relevant to a proportionality determination where sentencing laws require the imposition of a term of imprisonment without consideration of such evidence. Accordingly, we conclude that, where the issue is presented, a sentencing court must consider an offender's intellectual disability in comparing the gravity of the offense and the severity of a mandatory prison sentence on such an offender in a proportionality analysis under Rodriguez/Buck."
Id. at 620-21.
In State v. Gonzalez, the Oregon Supreme Court held that other characteristics other than intellectual disability may be relevant, but rejected the argument that the defendant's mental health attributes rendered a M11 sentence unconstitutional.
I think, however, the case law has only scratched the surface of situations where Article I, section 16, would come into play. What follows are some ideas for when the constitutional protections of the proportionality clause might be triggered.
Is A Defendant Entitled to a Jury Trial On Restitution?
by: Ryan Scott • June 13, 2025 • no comments
Today, the OSC issued a press release that announced one case it was granting review on, and a number of cases it was not. Among those cases where the court was not granting review, individual justices either said they would have granted review or, more likely, concurred in the denial of review but felt the issue was worth addressing in a future case.
In other words, the individual justices were alerting lawyers -- defense lawyers in particular -- of issues they would like to see raised in future cases.
One of those cases was State v. Anne. Justices DeHoog and James both concurred in the denial of review "but observed that the petition raised an important legal issue that the Court should consider in an appropriate case." Do they say what that issue is? Nope, I had to look up the case to find out what the issue was. And let me tell you, it's a doozy.
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.
