Case Reviews
- Go here to see a list of:
___________________________________________________________________
Oregon Court of Appeals 06-23-10
by: Abassos • June 22, 2010 • no comments
Read the full article for details about the following new cases:
- Stop - Seizure of a Passenger
- Fines - Ability to Pay
- Statutory Speedy Trial
- DUII - Breath Test Refusal
- DUII - Diversion Eligibility
- Search Incident to Arrest - Cell Phone
- Double Jeopardy - VRO vs. Assaults
Oregon Court of Appeals 06-16-10
by: Abassos • June 15, 2010 • no comments
Read the full article for details about the following new cases:
- Venue - Vehicle
- Right to Counsel - Restitution Hearing
- Tampering with a Witness - Official Proceeding
Oregon Supreme Court 06-10-10
by: Abassos • June 9, 2010 • no comments
Read the full article for details about the following new cases:
- A Threatened Robbery Witness Is a Victim
One of two new Oregon Supreme Court cases released today:
Each individual that a defendant threatens in the course of a single incidence of robbery counts as a victim of the crime, and each victim may give rise to a separate count of robbery. These counts do not merge. The Oregon Supreme Court noted that the relevant statutes (ORS 164.395, 164.405 and 164.415) describe the individual against whom force must be used broadly, as "any" or "another" person. The Court held that as fear or the threat of violence is the central factor distinguishing robbery from theft, each individual threatened in a robbery is a victim, regardless of whether she is the owner or possessor of the property sought. Per ORS 161.067(2), where a single criminal episode involves multiple victims, "there are as many separately punishable offenses as there are victims." The Court further relied on legislative history, which demonstrates that the Oregon legislature of 1970 intended to shift the focus of robbery from the taking of property to the risk of injury, and that the necessary use or threat of force could be directed toward anyone, not just the owner of the property. State v. Hamilton
Oregon Court of Appeals 06-09-10
by: Abassos • June 8, 2010 • no comments
Read the full article for details about the following new cases:
- Vertical Gaze Nystagmus Test - Scientific Validity
- Failure to Register - Venue
- DUII Breath test refusal - Right to consult attorney
- Sentencing - Post Prison Supervision Conditions
- Due Process - Right to names of Witnesses
- PCR - Inadequate Counsel
- Search - Third Party
Oregon Supreme Court 06-04-10
by: Abassos • June 3, 2010 • no comments
Read the full article for details about the following new cases:
- Vouching
There's a great new opinion on vouching from the Oregon Supreme Court today in a child sex abuse case: State v Lupoli. Think of it as sort of a companion case to Southard, pushing back on some of the worst evidentiary abuses in sex cases but from a different angle. Southard, you may recall, said that an expert may not give a diagnosis of sex abuse in the absence of physical evidence supporting the opinion. Vouching, in this situation, is an opinion that abuse occurred (ie a diagnosis) based on the credibility of the alleged victim. Same problem, different angle. Or as Ryan Scott points out:
The distinction with Southard is also interesting. Under Southard, a diagnosis of sex abuse w/o physical evidence is inadmissible. Under Lupoli, the reasons for the diagnosis can be inadmissible. In other words, the Lupoli opinion should keep the state from trying to get right up to the Southard line without crossing it. The court gives some hint what testimony a CARES doctor could properly make that might be admissible, but it would be very neutered testimony. Other than introducing the video, I wonder, what really is the point of having a CARES doctor testify anymore?
Of course, it really shouldn't take a great new case to affirm the longstanding rule that one witness may not give an opinion on whether another witness is telling the truth. There's a prior S.Ct. opinion reversing a child sex abuse case where a CARES expert vouched for the truthfulness of the child victim: State v. Keller, 315 OR 273 (1993). And, in a separate case the S.Ct. even got snarky about it:
"We have said before, and we will say it again, but this time with emphasis - we really mean it - no psychotherapist may render an opinion on whether a witness is credible in any trial conducted in this state. . . . An opinion that a person is not deceptive, could not lie without being tripped up, and would not betray a friend (to wit: the defendant) is tantamount to the same thing." State v Milbradt, 305 OR 621 (1988)
Yet still, the 50 + vouching statements from this case are ones that are regularly admitted as evidence in child sex abuse cases. Here are some examples:
Avila, for example, testified that she diagnosed eight-year-old SM as having been sexually abused because:
- "Her disclosures * * * were very clear and spontaneous. They were appropriate for the age that she was. They didn't sound rehearsed, they sounded like things she just said."
- "She was consistent. She had said the same type of thing before to her parents, I guess."
- "[H]er physical exam was consistent with what she said happened. There weren't any signs, but you wouldn't expect there to be. * * * [S]he was touched and - with a hand, and touching doesn't leave any marks."
- "[T]he manner in which [SM] told her story was pretty compelling. She just had a real clear change in her demeanor."
Avila also testified that she saw multiple instances of "idiosyncratic detail" in SM's statements, which Avila described as "spontaneous detail that you wouldn't otherwise get, * * * things that if you were making up a story, you might not put that kind of detail in it." Avila stated that, in SM's story, "there was a lot of little details that were involved in the way the story was told. * * * I mean it was really quite descriptive." Finally, Avila testified that she and social worker Findlay "were in agreement. * * * We both felt quite certain that when you look at the things that you look at that make you think that a kid is telling it like it is, they were all there. They were all there, and we both agreed[.]"(7) Heskett testified that she diagnosed five-year-old SO as having been sexually abused because "the child made consistent statements in a developmentally appropriate way, she's only five years old, consistent with abuse. Her examination was - did not show signs of abuse. * * * [B]ased on those things, I came to the diagnosis." Heskett also described the things she looked for in SO's statements to arrive at her diagnosis:
- "[J]ust the way she told her story was very compelling, and that just makes it - it just was - it had an effect."
- "We look to make sure that the child's statements are developmentally appropriate. It would be very worrisome or concerning * * * if I had a child who at five was using terminology or expressing things with phrases that would not be expected to come from a five-year-old. * * * [SO] seemed developmentally appropriate to me[.]"
When asked whether anything about SO's affect would raise concerns of whether to rely on what she had said, Heskett testified, "For a five-year-old child, she actually seemed to be very appropriate. She did not seem to be overly anxious, overly timid, overly afraid." Heskett also testified that nothing about SO's emotional state gave rise to concerns about her reliability. Heskett listed specifically what led her to diagnose SO with sexual abuse: "The combination of her statements, as well as the fact that her physical findings fit with her statements. She did not have any signs of abuse, but I would not have expected any based on her statements. * * * It was the comments that she made[.] * * * It was the fact that she had options or opportunities to perhaps change her history or say that she had been touched in other places, and she remained fairly consistent - not fairly, she remained consistent in where she was touched."
- "In general, [peripheral details are] one of the things that's important in the sense that the child can give as much detail about the entire reported or alleged incident as possible. * * * [SO] was very clear-cut in telling us [details]."
It's all inadmissible vouching. Congratulations to trial attorney Patrick Sweeney for persevering in his objections. And congratulations to big shot New York attorney Robert Rosenthal for coming into this fine state and making our law better. State v. Lupoli
Oregon Court of Appeals 06-02-10
by: Abassos • June 1, 2010 • no comments
Read the full article for details about the following new cases:
- Merger - One crime, Multiple theories = One conviction
- Identity Theft - Intent to Defraud is Broad
- Confrontation - Testimonial Statement
- Civil Commitment - Basic Needs
U.S. Supreme Court - Miranda
by: Abassos • May 31, 2010 • no comments
As avid readers of this blog are aware (from my March post here), the high Court has been considering the question of whether 3 hours of silence followed by a confession is a waiver of one's Miranda rights. The following exchange from oral argument nicely sums up both the internal dynamic and the upshot of today's ruling:
JUSTICE SOTOMAYOR: You want to change the Miranda rule to say: Tell someone their rights and unless they explicitly say "I don't want to talk to you," then they implicitly under virtually any circumstance haven't. That's what you believe the rule in Miranda and Butler and Davis sets forth?
To which Scalia responds that it sounds good to him:
JUSTICE SCALIA: Why shouldn't we have a rule which simply says if you don't want to be interrogated, all you have to say is "I don't want to answer your questions"?
Sadly, Scalia won. The opinion issues on party lines with Kennedy swinging right. Berghuis v. Thompkins.
Oregon Supreme Court 05-27-10
by: Abassos • May 26, 2010 • no comments
Read the full article for details about the following new cases:
- Privacy Interest - Abandonment - Hotel Room
Where defendant denied ownership of a bag in a hotel room and gave the police a false name, she relinquished her possessory and privacy interests in the bag. When the person who rented the hotel room gave permission to search, the police had the consent of the only person that mattered. Trial and Appellate Court reversed:
In light of those cases, we now return to the issue of what weight should be given in this case to defendant having left the bags in a locked room rented by someone she knew. We conclude that that fact does not affect our holding that defendant had relinquished her constitutionally protected interests in the bags. As we have already noted, defendant disclaimed ownership of the bags and voluntarily gave up possession of them. In doing so, she abandoned her bags in a locked room to which she would not have access. Defendant thus relinquished her possessory rights in the bags to Beal. See Howard/Dawson, 342 Or at 640 (noting that it was uncontested that the defendants had relinquished their possessory interests in garbage to the sanitation company, once the sanitation company had picked up the garbage). Because defendant had relinquished her possessory rights, she also had relinquished her privacy interests in the bags. See id. at 642-43 ("when a person gives up all rights to control the disposition of property, that person also gives up his or her privacy interest in the property in the same way that he or she would if the property had been abandoned"). Beal, by virtue of his control of the room, held the only remaining possessory and privacy interest in the two bags. Beal's consent to a search relinquished the remaining privacy interest in the room and its contents. See Tanner, 304 Or at 322 ("B's section 9 interests will not be violated if A allows the police to enter the house and discover the effects, * * * because A controls access to the house * * *."). Accordingly, when Officer Pfaff searched the two bags, she did not violate any constitutionally protected privacy interest held by defendant. The Court of Appeals and the trial court erred in holding otherwise.
Oregon Court of Appeals 05-26-10
by: Abassos • May 25, 2010 • no comments
Read the full article for details about the following new cases:
- Jury Instructions - Theory instructed must match theory charged
- Merger - Rob II
Oregon Court of Appeals 05-19-10
by: Abassos • May 18, 2010 • no comments
Read the full article for details about the following new cases:
- Speedy Trial - When Assent turns into Consent
- PCR - Merger
- Stop - Reasonable Suspicion
Oregon Court of Appeals 05-12-10
by: Abassos • May 11, 2010 • no comments
Read the full article for details about the following new cases:
- Dependency - Dispositional Evidence
- Evidence - Relevancy
- Stalking Order - Extension of Probation
Oregon Court of Appeals 05-05-10
by: Abassos • May 4, 2010 • no comments
Read the full article for details about the following new cases:
- Stalking Protective Orders - Unwanted Contacts
- Restitution - Funeral Expenses
Oregon Court of Appeals 04-29-10
by: Abassos • April 28, 2010 • no comments
Read the full article for details about the following new cases:
- Failure to Perform the Duties of a Driver - Knowledge of Injury
- Stop vs Arrest
- DUII Diversion - Eligibility (Prior Treatment)
U.S. Supreme Court 04-23-10
by: Abassos • April 22, 2010 • no comments
Read the full article for details about the following new cases:
- Animal Cruelty
- Sexting
A couple noteworthy items from the high Court this week:
First, they struck down a federal statute that outlawed the depiction of animal cruelty. The law was aimed at dog fighting and crush videos (in which women are recorded crushing kittens and other small animals with their high heels). The defendant in this case was convicted of disseminating dog fighting videos. The Court found that the law was overbroad - that it may be possible to criminalize crush and dog fighting videos but this law did much more. Hunting videos, for example, would fall squarely within the law. The Court rejected the government's argument that animal cruelty falls outside the scope of the First Amendment, like obscenity and fraud. Chief Justice Roberts called the government's argument in that regard "startling and dangerous". Score one for the Chief Justice. U.S. v. Stevens (Here's Nina Totenberg on Stevens.)
Earlier in the week, oral arguments on a sexting case revealed something more important about the Chief Justice and his colleagues: they know frighteningly little about technology. In a scene reminiscent of Ted "The internet is a series of tubes" Stevens attempting to regulate the web, the Chief Justice actually asked what the difference was between e-mail and a pager. Justice Kennedy asked if it's possible to send and receive a text at the same time. Justice Scalia was baffled by the idea of service providers and fixated on the question of whether texts could be printed and passed out. As Bronson James pointed out on the pond:
Holy hell, I always knew the law lagged behind technology by a couple decades, but the exchange with the high court in the sexting case heard this week was way, way, worse than I could have imagined. Those people have not even a remedial grasp of the modern world, how it works, and how 90% of us are using it.
On the other hand, the Supreme Court knew about kitten crushing videos before I did - so maybe it's just a matter of priorities.
Oregon Court of Appeals 04-21-10
by: Abassos • April 20, 2010 • no comments
Read the full article for details about the following new cases:
- Sex Abuse - Admissibility of Diagnosis (CARES)
- DUII Diversion - Ineligibility for Prior Participation in Treatment
- Stop - Criminal Investigation
Oregon Supreme Court 04-15-10
by: Abassos • April 14, 2010 • no comments
Read the full article for details about the following new cases:
- Criminal Mischief III - Tampering or Interfering with Property
For the purposes of Criminal Mischief III, "tampering" requires conduct that alters, changes or rearranges property and "interfering" requires an adverse effect on the property's use. The statute contemplates more than mere meddling or unauthorized contact, even where the defendant intends to cause substantial inconvenience. Here, defendant was convicted of Criminal Mischief III for kicking the door of a police car. The appellate court affirmed, finding that "tampering or interference" meant any unauthorized contact with another person's property. The S.Ct. reverses and even gives some helpful examples:
Throwing a switch on a train track that could change the path of a train or opening a gate that blocks access to a forest service road is conduct that alters, rearranges, or changes property, and constitutes "tampering" with property. If done with the intent to cause substantial inconvenience, it constitutes third-degree criminal mischief. Similarly, mixing up library books and reshelving them out of order is an alteration and rearrangement of property and constitutes "tampering" with property. What constitutes tampering with property for purposes of ORS 164.345(1) may depend on the nature of the property: merely entering a "clean room" at a manufacturing facility for silicon wafers or touching a valuable painting with one's finger might constitute tampering, while the same conduct with respect to other property would not. The actus reus element of "tamper[ing] * * * with property" for purposes of third-degree criminal mischief may be easily met in many cases, but it requires some showing, beyond the intent to cause substantial inconvenience, of an appreciable physical change or rearrangement to property.
Oregon Court of Appeals 04-14-10
by: Abassos • April 13, 2010 • no comments
Read the full article for details about the following new cases:
- DUII - Illegal Consent for Breath Test
- Dependency - Transfer of Jurisdiction
- Official Misconduct I - Sufficiency
- Sentencing Guidelines - Unconstitutionality/Vagueness
- Statute of Limitations - Aggravated Murder
- Hearsay - 3rd party Confession (Due Process)
- Marijuana Possession - Full Faith and Credit/Interstate Travel
- Preservation
- Plain Error - Firearm Minimums
- Preservation - GEI
Oregon Supreme Court 04-08-10
by: Abassos • April 7, 2010 • no comments
Read the full article for details about the following new cases:
- Departures - Failure to Deter - Separate Malevolent Quality
The Supreme Court takes a final axe to the separate malevolent quality requirement for some departure factors. Previously, in Bray, they decided that proving persistent involvement required only that the number and frequency of convictions was recurrent and continuing. Here, they find that failure to deter requires only that the defendant should have been deterred by his prior criminal sanctions and was not. No separate proof regarding defendant's character is required. In this case, defendant had 37 convictions and at least 34 sanctions for supervision violations. Thus, there was "no legitimate debate" that prior sanctions failed to deter defendant. State v. Lennon
Oregon Court of Appeals 04-07-10
by: Abassos • April 6, 2010 • no comments
Read the full article for details about the following new cases:
- Preservation - Seizurer
Only one case today and it's on preservation. Frustrating, frustrating preservation. The trial attorney in this case correctly argued that the search was beyond the scope. Unfortunately, it wasn't quite the right flavor of "beyond the scope." The correct sub-argument was, via Reid, that a search of a non-resident's personal effects can exceed the scope of a search warrant. I.e., just because you happen to be at a house to be searched, doesn't mean you're included in the search warrant. The trial attorney argued that officers exceeded the scope by searching defendant for drugs when the warrant was only directed at items related to a burglary. I.e., maybe the officers could have searched defendant for items related to the burglary but that doesn't justify a completely unrelated search for drugs. The most convincing aspect of the Court's opinion is that because the correct legal argument wasn't made, none of the appropriate factual questions were developed. Like, for example, the defendant's actual relationship to the premises; the officer's knowledge of that status; the defendant's interest in and ability to control the items seized, etc. Still though, this preservation thing is infuriating.I hate the way it punishes an aggressive attorney who took the case to trial, filed a specific written motion as well as a supplemental motion and largely got the issue right.
State v. Walker
Oregon Supreme Court 04-02-10
by: Abassos • April 1, 2010 • no comments
Read the full article for details about the following new cases:
- Exceeding Bag Limit on Coastal Bull Elk - "Bag Limit"
With all the open questions of law and frustrating AWOPs from the Court of Appeals, thank god the Oregon Supreme Court finally ruled on this vital issue:
In the Uniform Fish and Wildlife Laws, the phrase "bag limit" refers to the amount of animals taken into one's possession, not the amount of animals killed. Our hapless hero in this case killed his elk and then later noticed another elk which was already dead. Not wanting to waste the death of a perfectly tasty elk, he took it and gave it to a friend. It turns out that he should have called the State Police, who would have donated the meat to charity. So sayeth the Supreme Court. State v. Hogevoll
