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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. → continue reading... 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. → continue reading... 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 concurrence, 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. 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Enter your email address to receive notifications of new articles. ________________________________________________ Oregon Appellate Court, January 5, 2022 by: Rankin Johnson • January 7, 2022 • no comments EVIDENCE - Child-sexual-abuse hearsay exception INTERFERENCE WITH MAKING A REPORT - Sufficiency EVIDENCE - Business-records hearsay exception → read the full summaries... ________________________________________________ Search and Seizure Privacy Interest, Stops,Arrests, Consent, Warrant Exceptions, Suppression Exceptions, Search Warrants Forensic Science Ballistics, Bitemarks, Bloodstains, DNA, Eyewitness ID, Fingerprints, Handwriting ID, Polygraphs, Shaken Baby Evidence Code Procedure, Relevance, Privileges, Lay Witnesses, Experts, Hearsay, Physical Evidence Immigration Padilla, Agg Felonies, Inadmissibility, Removability, Moral Turpitude, Naturalization, Juveniles, U-Visas Crimes Measure 11, Drugs, Sex Crimes, Homicide, Property, DUII, Child Abuse, Other Crimes Self Incrimination Evidentiary Burdens, State Compulsion, Custody/Compelling Circumstances, Right to Silence, Impeachment Mental States Civil Commitments, Aid & Assist, GEI, Disordered Mental State, Mens Rea, Testing, DSM-IV Defenses Alibi, Necessity, Speedy Trial, Self Defense Oregon Constitution Speedy Trial, Right to Counsel, Confrontation, Double Jeopardy, Equal Privileges, Ex Post Facto, Venue |Trial Procedure Charging Decision, Discovery, Right to Counsel, Pretrial Motions Extradition Veterans and Military Service Created by Jess Barton. Sentencing Criminal Episodes,Merger, Consecutive Sentences, Mandatory Minimums, Probation, Restitution, Collateral Consequences