Case Reviews
From OCDLA Library of Defense
- Go here to see a list of:
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Oregon Appellate Ct - April 8, 2015
by: Frangieringer, Alarson and Abassos • April 9, 2015 • no comments
- Coercion – A Person Has a "Legal Right to Abstain" From Returning Property They Have a Right to Use
- Vouching – Social Worker in Sex Abuse Case Can’t Testify That There Were No Indications of Suggestion or Coaching
- Character Evidence – Prosecutor Can’t Comment on Defense Failure to Present Evidence That Is Barred By the Evidence Code
- Inevitable Discovery – State Must Identify Lawful Means
- Dependency – Court Has No Obligation to Sua Sponte Terminate a Guardian Ad Litem
- Dependency – General No-Contact Order is Overbroad If Less Restrictive Order Would Suffice
- Preservation - Dependency - Strategic Silence Doesn’t Preserve Error
- Merger - Preservation - Counts that Merge if There Is a Common Victim Do not Fail to Merge Just Because the State Names Additional Different Victims for Each Count
- Preservation – Waiver of Jury Trial - Must Ask Judge for Reasoning to Preserve Issue for Appeal
Oregon Appellate Ct - April 1, 2015
by: Frangieringer and Abassos • April 1, 2015 • no comments
- Bias – Evidence of a U Visa Application is Relevant Impeachment Evidence
- Hearsay – Under OEC(18a)(b), Unavailability is Immaterial if the Declarant Testifies
- Asking for the Time Is Not Disorderly Conduct
- Vouching – Harmless Error - Testimony Consistent with the Defense Theory
- Use of Child in Sexually Explicit Display – "Permit" Means to Make Possible, Not Authority To Prohibit
- Vouching – Plain Error - “True” Vouching
U.S. Supreme Ct - Mar. 30, 2015
by: Frangieringer and Abassos • March 30, 2015 • no comments
- IAC – Skipping Argument Irrelevant to Theory of the Case is not IAC
- Search & Seizure – Satellite Monitoring is a Search
Oregon Appellate Ct - Mar. 25, 2015
by: Abassos and Frangieringer • March 25, 2015 • no comments
- DUII - Exigent Circumstances to Enter a Home - State Must Show That Evidence Would Have Been Completely Lost (Not Just Diminished) - For a DUII That Means Five Hours, 20 Minutes
- DUII - Scientific Evidence - Testimony That a Breath Test Within Two Hours of Driving Is Very Unlikely to Overestimate BAC
- Stop Extension - An Unavoidable Lull Can Occur During a Lawfully Expanded Stop
- Miranda – Knowing and Voluntary Waiver When No Indication of Mental Health Impairment
- Right to Silence Does not Extend to Not Responding to Text Messages
- Hearsay – Arguing Inferences From Not Responding to Text Messages is Not Hearsay
- Robbery – Failing to Pay Cab Fare is Not a Taking of Property
- Dependency – Pattern of Instability Sufficient to Deprive Parental Rights
Oregon Supreme Ct - Mar. 19, 2015
by: Abassos and Margaret Laffan • March 19, 2015 • no comments
- OEC 404(4) Expressly Supersedes OEC 404(3): Other Bad Acts Are Admissible to Prove Propensity in a Child Sex Case
Oregon Appellate Ct - Mar. 18, 2015
by: Abassos and Frangieringer • March 18, 2015 • no comments
- Mistrial – Prosecutor May Not Comment on an Unadmitted Video During Closing
- Mistrial - A Prosecutor Must Intend to Cause a Mistrial For Prosecutorial Misconduct to Bar Retrial
- Prosecutorial Misconduct - Prosecutor Is Not Allowed to Cause the Loss of a Defense Witness, Regardless of Intent
- Police Interrogation – Art. I § 12 Permits an Officer to Say That a Quick Confession Will Make Defendant Appear Better in Court
- Interrogation – Harmless Error to Admit Polygraph Statements if Other, Similar Inculpatory Statements Given
- Incapacity to Consent to Sex Can Be Caused By Severe Mental Illness
- Automobile Exception Does Not Apply Unless Officers See the Vehicle Moving
- UUV Requires a Mental State of Knowledge, Not Negligence
- Best Evidence Rule Does Not Apply to Observations of a Live Video Feed
- Miranda – Transportation to Detox is Not A Compelling Circumstance
- Confrontation – Video of Witness Interview Admissible Where Witness Also Testified
- Probable Cause – Dumping a Backpack is a Furtive Gesture
- Escape II – Flight From Arrest for a Post-Prison Supervision Sanction Is Not Escape II
- UUV – Honest Claim of Right is Not a Defense
- Accomplice Liability – Natural and Probable Consequences Is Not the Law
- Probation – Prohibiting a Probationer From Being in Areas Where Hunting Might Occur is Overbroad
- Dependency – Jurisdiction - Spouse Being a Sex-Offender, By Itself, Is Speculative As to Harm to Children
- Appellate Procedure - An Error is Not Plain if Consistent With Defense Strategy
- Preservation – Must Specify Rulings for Appeal, No Matter How Many Motions Filed
Oregon Supreme Ct. - Mar. 12, 2015
by: Frangieringer and Abassos • March 12, 2015 • no comments
- Criminal Mischief – Wild Deer Are the Property of Another
Oregon Appellate Ct. - Mar. 11, 2015
by: Frangieringer and Abassos • March 11, 2015 • no comments
- OEC 412 Evidence of Past Sexual Behavior Is Only Admissible if Circumstances Are Similar
- Vouching - An Expert's Testimony That Complainant's Statements, If True, Indicate Grooming is Not Vouching
- Identity Theft – Possession of Stolen Identification Documents From Multiple People is Sufficient to Infer Intent to Deceive or Defraud
Oregon Supreme Ct. - Mar. 5, 2015
by: Frangieringer and Abassos • March 5, 2015 • no comments
- Appellate Jurisdiction – State Can’t Appeal Misdemeanor Convictions, Nix Vacated
- Search & Seizure – Dissipation of Controlled Substance is an Exigent Circumstance
Oregon Appellate Ct. - Mar. 4, 2015
by: Frangieringer and Abassos • March 4, 2015 • no comments
- Qualifying Experts – Pharmacologist Can Testify About Effects of Drugs on Mental State
- Dependency Hearing – Parents Must Raise IAC Claims During the Permanency Hearing
- Reasonable Suspicion – Seeing Burning Embers Without More Is Not Enough to Stop
- Appellate Jurisdiction – Failing to Waive Fees in Diversion Not Grounds for Appeal
- Search & Seizure - Facts That Have Innocent Explanation Can Still Give Rise to Reasonable Suspicion
- Sex Offender Reporting – Duty to Report Requires More than an Offender Leaving Former Residence
- Accomplice Testimony – Evidence Readily Corroborating Testimony, Enough to Convict Defendant
Oregon Appellate Ct. - Feb. 25, 2015
by: Frangieringer and Abassos • February 25, 2015 • no comments
- Search & Seizure – Harmless Error Where Evidence Did Not Alter Verdict
- Jury Instructions – Requested Instructions Must be Tied to the Evidence
- Bias – Crossing Complainant on Intent to Apply for U Visa Goes to Bias
- PCR – Attachments to Petition Do Not Need to Prove the Truth of Petitioner’s Allegations
- IAC – Lawyer’s Don’t Have to Advance a Rule That Has Yet to be Promulgated
- Vouching – Lupoli Does Not Encompass Out-of-Court Statements on Credibility
- Criminal Mistreatment I – Mere Exposure to a Hostile Dog is Not Assaultive Conduct
Oregon Appellate Ct. - Feb. 19, 2015
by: Frangieringer and Abassos • February 19, 2015 • no comments
- Search & Seizure – Reciprocal Relationship Between Flagrancy of Officer Misconduct and Officer’s Control Over Defendant’s Movements
- SPO – Need to Present Evidence of Harm Feared, Otherwise No Basis to Determine Whether Fear is Reasonable.
- Probation Revocation – A Sanction is Not A Sentence
- UUV & PSV – Jiggle Keys and Implausible Story not Sufficient to Withstand MJOA Where Defendant is Otherwise Driving Vehicle Normally
Oregon Appellate Ct. - Feb. 11, 2015
by: Frangieringer and Abassos • February 11, 2015 • no comments
- Search & Seizure – No Expectation of Privacy in Structure Erected on Sidewalks
- Restitution – Goods Stolen From Retail Space are Valued at Retail Prices
- Indictment – Move to Elect What Conduct the State Wants to Prove at Trial in Generalized Indictment
- Unavailability of a Witness – Statements Admissible When State Acts in Good Faith to Secure Presence
- Confrontation – Admission is Harmless if Statement is Repetitive of Non-Testimonial Statement
- Single Subject Rule – BM 73 Meets Single Subject Rule of Oregon Constitution
Oregon Appellate Ct. - Feb. 4, 2015
by: Frangieringer and Abassos • February 4, 2015 • no comments
- Initiating a False Report – Applies to a Person Who Knowingly Causes Another to Transmit Report
- Expungement - An Expunged Out-of-State Conviction is Not a Conviction
- Expungement - A Second Public Indecency is Not Eligible
- The Parole Board Has Authority to Revisit It's Rulings
- DUII Diversion Fees - Failure to Consider Ability to Pay is Not Appealable
- IAC – Preponderance Standard to Prove Prejudice Where Guilty Plea in Trial Court
- IAC – 20 Years Not Disproportionate for Firing into Car Full of Passengers
- Scientific Testimony – SCEA is a Valid Scientific Instrument
- Imposition of Fees – It is Not Plain Error, Where Court is Required to Consider Ability to Pay, to Make No Findings on the Matter
- Computer Crime – Limited Access as Part of Employment is Not Authorized General Access
Oregon Appellate Cases - Jan. 28, 2015
by: Abassos and Frangieringer • January 28, 2015 • no comments
- Confrontation - A Notice of License Suspension Form is Not Testimonial
- Aid and Abet - Presence at Planning and Commission of Crime is Not Enough
- Exploitation - Forceful Control Over Defendant Can Be Enough
Oregon Appellate Ct - Jan 22, 2015
by: Abassos and Frangieringer • January 22, 2015 • no comments
- Theft I - Merger - ORS 164.055(1) Lists Ways to Elevate to Theft I, Not Separate Statutory Provisions
- Statute of Limitations - Facts Relied on to Toll the SOL Must Be Alleged in the Charging Instrument
- Criminal Mischief III - Tamper Requires an Adverse Effect to the Property
- Best Evidence Rule - Testimony About a Video in Lieu of the Actual Video is Inadmissible
- Juvenile Waiver to Adult Court for 12 to 14 Year Olds Requires Only an Understanding of One's Physical Actions and the Criminality or Wrongness of the Actions
- Vouching - Explanation of How Children Typically Describe Their Bodies
- Evidence – Retrograde Extrapolation is Still Scientific Evidence
- Commitment – Appropriate to Deny Conditional Release Where Petitioner Maintains Suicidal Ideation
- Traffic Stop – Can’t Stop Defendant for Stopping in an Intersection when Defendant is Not in an Intersection
- Parole Consideration Hearings - No Right to Subpoena
- Securities Fraud - MJOA - Investment Contract - Common Enterprise - Horizontal Commonality
Oregon Supreme Ct. - Jan. 15, 2015
by: Frangieringer and Abassos • January 15, 2015 • no comments
- The Oregon Constitution Does Not Require a Ten Person Jury in Misdemeanor Cases
- PCR - IAC – Failing To Request a Lesser Offense Jury Instruction is Not Always Deficient
Oregon Appellate Ct - Jan. 7, 2015
by: Abassos, Frangieringer and Gina Anzaldua • January 7, 2015 • no comments
- Automobile Exception - Approaching One's Car Does Not Make it Mobile
- UUV – Probable Cause - Arrested while driving stolen car
- UUV - Probable Cause - Proximity to stolen car
- Restitution – Defendant Liable for All Jewelry He Stole Even Though He Only Plead Guilty to a Single Necklace
- Dependency Jurisdiction - Current Threat of Harm - Speculative Threats Are Not Enough
- PCR - IAC - Failure to Object to the Reasonable and Probable Consequences Instruction on Accomplice Liability
- PCR - Summary Judgment - No Difference in Result
Oregon Appellate Ct - Dec. 31, 2014
by: Abassos, Frangieringer and Nicholas Rischiotto • January 2, 2015 • no comments
- Adding the Word “weapon” To the Phrase "by means of a dangerous" is not a Substantive Amendment of an Indictment
- A Traffic Stop Occurs When Officers Unambiguously Convey That There Was A Traffic Violation
- 75 Months is Not Disproportionate for Sex Abuse I Where There Are Multiple Incidents, Skin-to-Skin Contact, and a Familial Relationship
- Evidentiary Foundation for Opinion of Truthfulness
- There Are No Constitutional Grounds for Appeal Under ORS 138.050(1)(a)
- DOC Rules Allowing the Taking of Restitution for Major Violations are Facially Constitutional
- Merger - Felon in Possession - Constructive Possession is Continuing Possession
- Felony DUII - 90 Day Minimum is Mandatory
- Involuntary Absence Is Not a Forfeiture of 6th Am. Rights
- Speedy Trial – 21.5 Months is Reasonable Delay in DUII and Assault 3 Case
- Probation Revocation – Cannot Impose More Jail Time Than Original Suspended Sentence
- Dependency - Jurisdiction - DHS is Stuck with Grounds Alleged in the Petition
- Motion for Continuance Should Have Been Granted Where Defendant Was Required to Be in 2 Courts at the Same Time
- PCR - IAC - Agg Murder - Requesting a Competency Hearing
- PCR - IAC - Failure to Present an Expert in an Intoxication Defense
- PCR - IAC - Agg Murder - Failure to Prepare and Present at the Penalty Phase
Oregon Supreme Ct. - Dec. 26, 2014
by: Frangieringer and Abassos • December 26, 2014 • no comments
- Miranda – Courts Cannot Look to Evidence after Invocation to Determine If Invocation was Equivocal
