Case Reviews
From OCDLA Library of Defense
- Go here to see a list of:
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Oregon Supreme Ct - Aug. 14, 2014
by: Abassos • August 14, 2014 • no comments
- A PCR Petitioner Is Not Both Entitled to Counsel and to File Pro Se Motions
Oregon Appellate Ct - August 13, 2014
by: Abassos, Evan Ottaviani, Katie Watson and Samantha Robell • August 13, 2014 • no comments
- Double Jeopardy- “Same Offense"
- Sex Abuse II Merges with Sodomy III When the Conduct Involves Deviate Sexual Intercourse With a Victim Under 16
- A “No Trespassing” Sign Next To Driveway Does Not Automatically Create a Privacy Interest in the Driveway
- Mistrial- Eliciting Testimony That DUII Suspect Invoked Right to Remain Silent, Found Inadmissible In a Pretrial Ruling, Was Prejudicial
- Defendant May Agree to the Judicial Determination of an Element, During a Jury Trial, Without a Written Waiver of Jury
- The Retention of Identification for More Than a Brief Period May Be a Per Se Stop.
- Civil Commitment - It's Plain Error Not to Advise AMIP of the Right to Subpoena Witnesses
- Burglary - A Private Club Is Not "Open to the Public”
- Preservation - Search of a Bedroom vs Opening the Door
Oregon Supreme Ct - Aug. 7, 2014
by: Abassos, Lisa Fitzgerald, Evan Ottaviani, Katie Watson and Samantha Robell • August 7, 2014 • no comments
- Exigent Circumstance—Preventing Further Imminent Harm to Animal Victim
- Unlawful Use of a Weapon Encompasses Using a Weapon to Threaten Harm or Injury.
- Animals can be victims within the meaning of Oregon’s anti-merger statute.
- Police Officers May Rely on Information Provided by Other Officers as a Factor in Justifying a Stop
- A Police Officer’s Experience and Training May Be a Factor Considered by The Court When Reviewing A Stop
Oregon Appellate Ct - Aug. 6, 2014
by: Abassos, Lisa Fitzgerald, Evan Ottaviani and Katie Watson • August 6, 2014 • no comments
- Motions for Continuance- Defendant’s Assertions Must Be More Than Speculation
- DUII- $2,000 Fine for Third or Subsequent Conviction Not Mandatory If Defendant is Sentenced to Time in Jail
- Crim Mistreatment I - Leaving Child With a Known Abuser is Enough to Get Past MJOA
- The Fact That Defendant Lies About His Name to the Cops Is Not Itself Sufficient to Attenuate Such Statements From Prior Illegal Police Conduct.
- Emergency Aid Exception—Officer Must Believe there is Immediate Need for Assistance
- Inventory Search Exception is Limited to Specific Terms of Inventory Policy
Oregon Appellate Ct. - July 30, 2014
by: Abassos, Lisa Fitzgerald, Evan Ottaviani and Tim OConnor • July 30, 2014 • no comments
- Hearsay Prejudicial, for Appellate Purposes, where Credibility is a Central Issue at Trial
- Sexual Abuse III— Mens Rea for Lack of Consent is at least Criminal Negligence
- Stops-Conversationally Requesting and Verifying a Person’s ID is Not a Stop
Oregon Appellate Ct - July 23, 2014
by: Abassos, Lisa Fitzgerald, Katie Watson, Evan Ottaviani and Tim OConnor • July 23, 2014 • no comments
- PCR - Ineffective Assistance of Counsel- No Prejudice when Defense Counsel Used Prior Bad Acts to Support Defense Theory
- Fines and Fees - State Must Show That Defendant Currently Has or Will Have Financial Resources
- "Suspicious Movement,” Attire, and a Prior Conviction Justify Traffic Stop Extension on Officer Safety Grounds
- Right to Proceed Pro Se—Court Must Determine that Defendant Understands Inherent Risks
- It Is Plain Error to Impose Attorney Fees on an Indigent Defendant
- UUMV- Stacking Inferences and Speculation
- Officer Safety - Possession of a Gun
Oregon Appellate Ct - July 16, 2014
by: Abassos, Samantha Robell, Lisa Fitzgerald, Evan Ottaviani, Katie Watson and Tim OConnor • July 20, 2014 • no comments
- A Person Does Not Have a Privacy Interest in a Private Common Area, Even If It is Gated and Locked
- Motion to Postpone - Improperly Denied Where Insufficient Time to Prepare for Trial
- Prior Preservation Opinion is Modified As Too Harsh
- A Police Order that Limits Movement is Not a Per Se Show of Authority
- Felon in Possession of a Firearm - Merger - Going From Constructive to Actual Possession Is Not a Pause in Criminal Conduct
- Issue Preclusion – Must Be Asserted Before the Issue Is Relitigated
Oregon Supreme Ct - July 10, 2014
by: Abassos and Katie Watson • July 10, 2014 • no comments
- Resisting Arrest -Arrest for a Parole Violation is an Arrest for Resisting
Oregon Appellate Ct - July 9, 2014
by: Abassos, Lisa Fitzgerald, Evan Ottaviani, Katie Watson and Tim OConnor • July 9, 2014 • no comments
- Evidence That Defendant Was Not at the Location of the Incident is Not Alibi Evidence
- AIPs - “Substantial and Compelling Reasons” For Denial No Longer Necessary
- Officer Testimony Regarding Refusal to Submit to a Search - Prejudicial When Inference of Guilt Tends to Negate the Defense.
- No violation of Due Process When Probation Extended For Failure to pay Fines and Restitution
Oregon Appellate Ct - July 2, 2014
by: Abassos, Lisa Fitzgerald, Katie Watson, Sam Robell, Evan Ottaviani and Tim OConnor • July 2, 2014 • no comments
- A Stop Occurs when Officer Prevents Defendant from Leaving
- A Request for Identification May Constitute an Illegal Stop Under Oregon Law
- An Officer’s Order to Exit a Restroom Constitutes a Stop
- Dependency Jurisdiction - Positive UAs During Pregnancy are Not Enough to Establish Either a Substance Abuse Problem or a Risk of Harm
- General Notice is Insufficient for Introducing Child Complainant Hearsay Statements
- Reasonable Suspicion Requires that Observations Support a Reasonable Inference as to the Elements of the Crime
- Search Warrant to Out-of-State Business is Authorized as Long as the Court has Personal Jurisdiction
- Search Warrant For All Emails in Defendant’s Email Account is Sufficiently Particular
- Reasonable Suspicion - Odor of Marijuana
- Compelling Circumstances - Casual 20 Minute Stop Not Compelling
- Vouching - Plain Error - Strategic Reason for Not Objecting
- Learned Treatise May Be Used as Impeachment But Not Substantive Evidence
- Civil Commitments - Danger to Others - One Fight Plus Vague Threats Not Enough
- Harmless Error - Witness Assertion of Rt to Remain Silent
Oregon Supreme Ct - June 26, 2014
by: Abassos and Samantha Robell • June 26, 2014 • no comments
- Solicitation - Giving Information To Someone With the Intent of Influencing Them to Commit a Crime is Solicitation
Oregon Appellate Ct - June 25, 2014
by: Abassos, Evan Ottaviani and Katie Watson • June 25, 2014 • no comments
- A Juvenile Court Can Change Its Permanency Plan Based On Findings that Can “Fairly Be Implied” from the Original Allegations.
- DUII- Consent Following Reading of DMV Implied Consent Form is Not Involuntary
Oregon Supreme Ct - June 19, 2014
by: Abassos and Lisa Fitzgerald • June 19, 2014 • no comments
- Accomplice Testimony May Be Corroborated by Evidence “Tending to Connect” Defendant to Offense
- Defendant’s History of Violence, Gang Affiliation, and Physical Ability Justified Order to Wear Stun-Belt during Trial
- Empaneling Anonymous Jury—Court Must Consider Particular Security Concerns and Take Precautions to Protect Impartiality of Jury
- Questioning the Jury—Only if there is Reason to Believe Process has been Compromised
- Jury Instructions—Mercy Alone cannot be the Basis of Jury Decision
- Victim Impact Evidence in Guilt Phase is Harmless if Minimal or Similar to other Admitted Testimony
Oregon Appellate Ct - June 18, 2014
by: Abassos, Lisa Fitzgerald, Katie Watson, Sam Robell, Evan Ottaviani and Tim OConnor • June 18, 2014 • no comments
- Dependency - An Appeal of Jurisdiction is Moot Once Jurisdiction is Terminated
- Miranda Warnings Communicate a Restriction of Freedom
- A Pre-Mills MJOA on Venue Should be Remanded to Give Defendant an Opportunity to Object Properly
- 5th Am. Right to Counsel Must Be Clearly Invoked in DUII Breath Test Context
- Merger - Sufficient Pause - ECSA & Using a Child in Display of Sexually Explicit Conduct
- Attempt to Elude - No Requirement of Evasive Maneuver
- Assault II - Dangerous or Deadly Weapon- Knowingly Applies to the Nature of the Weapon Used
- Sex Abuse II - A Sleeping Person is “Physically Helpless”
- A Decision to Tow a Car Does Not Fall Under the Administrative Seizure Exception When It Is Motivated By Suspicion of Criminal Activity
- Burglary - Tents are Buildings
- Unreasonable Delay and Speedy Trial Rights Under Former ORS 135.747
- Right to Be Present at Trial - Defendant’s Awareness of Trial Date and Location Does Not Establish Voluntary Absence
- Appeals Must Be Raised within 30 Days and Cannot Address Issues from Judgments Outside That Timeframe
Oregon Supreme Ct - June 12, 2014
by: Abassos and Katie Watson • June 17, 2014 • no comments
- A PCR Petitioner Must Submit Evidence That Aids or Advances Allegations
Oregon Appellate Ct - June 11, 2014
by: Abassos, Samantha Robell, Courtney Lynch, Lisa Fitzgerald, Katie Watson and Evan Ottaviani • June 11, 2014 • no comments
- Surcharges Are Only Allowed If They're Authorized By Statute
- Carrying a Concealed Weapon - Catchall Provision Only Includes Items Designed and Intended Primarily as Weapons
- Dependency - A Parent May Not Use a Foster Placement to Argue That The Children Do Not Present a Current Risk of Harm
- Actual Bias is Required to Invalidate a Search Warrant Based on a Judge's Personal Conflict
- Hearsay Impeachment - If an Exculpatory Statement is Elicited by the Defendant at Any Point in the Trial, Even if Already Elicited by the State, the Defendant is Subject to Impeachment
- Criminal Mistreatment Appropriate for Leaving Children With Abusive Boyfriend
Oregon Appellate Ct - June 4, 2014
by: Abassos and Tim OConnor • June 4, 2014 • no comments
- Racketeering - Identities of Unnamed Members of an Enterprise Not Required
- Dependency - Jurisdiction May Not Be Based on the Contested Admissions of the Other Parent
- A private search becomes a state action when an involved officer understands what is being proposed, knows he couldn't do it himself and offers support, encouragement or the modification of official procedure
Oregon Supreme Ct - May 30, 2014
by: Abassos and Lisa Fitzgerald • May 30, 2014 • no comments
- An Objection to the Appellate Remedy on Remand Must Be Made to the Appellate Court
- School Safety Exception Permits a Warrantless Search of Backpack in Official’s Possession
- OEC 503(4)(c) Exception is Limited to Information Necessary for a Lawyer’s Defense During Post-Conviction Proceedings
Oregon Appellate Ct - May 29, 2014
by: Abassos, Courtney Lynch, Lisa Fitzgerald, Evan Ottaviani, Katie Watson and Tim OConnor • May 29, 2014 • no comments
- Dependency - Court Does Not Need to Reference Specific Evidence in Reunification Hearings
- Prior Bad Acts - Intent - Prior Stabbing Against Same Victim 9 Months Prior Is Admissible in Murder by Stabbing Trial
- Net Delay of 12 Months is Reasonable When 6 Months is Attributable to Lack of Judicial Resources
- Harmless Error - Improper Exclusion of Defense Statement
- Particularity Requirement of OEC 803(18a)(b) is Met Where Defendant Can Discern the Substance of the Statement
- Under former ORS 135.747 a delay of 643 days was an unreasonable delay.
- Defendant’s Knowledge of a Warrant is One Factor in Determining a Seizure
- Defendant’s Drug History, Drug-Using Friends, and Trip to the Coast Do Not Reasonable Suspicion Make
- Prior Illegal Search Does Not Invalidate a Warrant if There's Independent PC
- Concurrence Instruction Only Required For Multiple Occurrences of the Same Crime When an Essential Factual Element Differs
Oregon Appellate Court - May 21, 2014
by: Abassos and Samantha Robell • May 22, 2014 • no comments
- Consent Given in Response to a Stop Extension Does Not Create Attenuation
- Preservation – Right to Counsel
- Walking Stops May Not Be Extended; Just Like Vehicle Stops
- Attorney Contribution Orders Are Judgments that Start the 30 Day Appellate Clock
- No Show of Authority when Defendant Consented to a Records Check
- Facts to Support Separate Criminal Episodes May Not Be Found By a Judge to Reconstitute Criminal History
