Case Reviews
From OCDLA Library of Defense
- Go here to see a list of:
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U.S. Supreme Court - March 7, 2016
by: Aalvarez • March 11, 2016 • no comments
- Brady - Evidence that the States' Witnesses Had Personal Reasons to Want to See the Defendant Convicted
Oregon Supreme Ct - March 10, 2016
by: Aalvarez • March 11, 2016 • no comments
- Appellate Procedure - Waiver of Objection
Oregon Appellate Ct - March 9, 2016
by: Aalvarez and Crystal Maloney • March 10, 2016 • no comments
- Search and Seizure - Relinquishment of Possessory and Privacy Interests
- Prior Bad Acts - 403 Balancing After State v. Williams
- 403 Balancing - Pre-Williams - Balancing Requested by the Defense
- Dependency - Risk of Harm - Father's Failure to Protect Children from Mother
- Termination of Parental Rights - Notice of Hearing Under ORS 419B.820
- Emergency Aid Warrant Exception – Scope of the Exception Depends on the Type of Emergency and the Type of Aid That Would Alleviate It
- Department of Corrections – Invalidating a DOC Health Care Rule and Policy
- Miranda – Expressing a Clear and Present Desire to Speak With an Attorney in Response to Miranda Warnings Is an Unequivocal Invocation of the Right to Counsel
- Invocation of the Right to Counsel Is Not Waived by Subsequent Statements Related to Routine Incidents of the Custodial Relationship
Oregon Supreme Ct - March 3, 2016
by: Aalvarez • March 3, 2016 • no comments
- Appellate Procedure - Motion to Dismiss under ORAP 8.05(3) - Evidence that a Defendant Has Absconded
- Permanency Hearings - ORS 419B.923 - Raising Claims of Ineffective Assistance of Counsel on Direct Appeal
Oregon Appellate Ct - March 2, 2016
by: Breinhard, Jonathan Heritage, Matthew Watkins and Joseph Hampton • March 3, 2016 • no comments
- Contempt – Proceedings initiated as Civil Contempt Proceedings Could not Result in Probation or a Fine
- Miranda/Article I section 12 – Sex Abuse Admissions Not Made Under Compelling Circumstances
- Civil Commitment – Delusions, Inappropriate Behavior, and Resisting Arrest Insufficient for Danger to Self or Others
- Vouching – Harmless Error Where the Court Presumes the Jury Follows Curative Instructions
- Evidence – Potential Plain error When Court Failed to Conduct 403 Balancing Test on Prior Bad Acts
- Dependency – Excusable Neglect Claim Controverted by Mother’s Inconsistent Statements Regarding Her Mistake
- Search and Seizure - Arrest Warrant Did not Sufficiently Attenuate Police Illegality
Oregon Appellate Ct - February 24, 2016
by: Aalvarez • February 24, 2016 • no comments
- Merger-Theft of a Firearm and Theft of Property Valued at $1,000 or More
- Buck/Rodriguez-A Judge May Consider a Defendant’s Diminished Mental Capacity in Deciding Whether a Sentence is Disproportionate
- Two Per Curiam Reversals of the Imposition of Attorney Fees
- Delinquency-Insufficient Evidence to Support the Crime of UUV
- Civil Commitment-Failure to Advise the AMIP of The Right to Subpoena
Oregon Supreme Ct - February 19, 2016
by: Aalvarez • February 20, 2016 • no comments
- A Defendant's Decision to Provide a False Name During an Unlawful Traffic Stop Can Attenuate the Taint of the Unlawful Encounter
- A Court Must Consider The "Reasonable Foreseeability" of Damages in a Restitution Hearing
- A Victim May Recover Lost Wages as Restitution When Subpoenaed to Trial and an Accompanying Restitution Hearing
Oregon Appellate Ct - February 18, 2016
by: Aalvarez • February 18, 2016 • no comments
- Permanency - Substance Abuse and Lack of Legal Custody Insufficient Grounds for Jurisdiction
- A First Degree Robbery Indictment Necessarily Alleges the Crime of Third Degree Robbery
- Weaving in Own Lane and Touching Fog Line is Sufficient to Provide Reasonable Suspicion of DUII
- Evidence of a Lawful Marijuana Business in Washington is Not Relevant in a Prosecution for Delivery in Oregon
- Merger - Possession and Delivery of a Controlled Substance
- OEC 803(18a)(b)-State Not Necessarily Required to Provide New Notice of Hearsay Statement Particulars on Retrial
- Nonthreatening but Unwanted Contacts with No Previous History of Violence Or Threats Are Insufficient to Justify an SPO
- Attorney Fees May Not Be Imposed Where the Record is Silent as to the Defendant's Ability to Pay
Oregon Appellate Ct - February 10, 2016
by: Aalvarez • February 11, 2016 • no comments
- PCR - Defendant Did Not Suffer Prejudice by Counsel’s Failure to Object to the Use of a Restraining Leg Brace Where the Brace was Not Visible to the Jury
- PCR – There Can Be No Claim for Post-Conviction Relief Where the Defendant Unsuccessfully Previously Raised the Claim on Direct Review
- Unanimous Jury Verdicts are Not Required
- Merger - Plain Error - Manufacturing Cocaine and Manufacturing Cocaine in Substantial Quantities
- MJOA - Tampering with Physical Evidence - Knowledge of Being Under Arrest Was Sufficient to Prove Knowledge that an Official Proceeding Was About to be Commenced
- Attorney's Fees - Plain Error in Imposing Where No Evidence of Defendant's Ability to Pay
Oregon Supreme Ct - February 4, 2016
by: Aalvarez • February 11, 2016 • no comments
- UUV Requires a Mental State of Knowledge Because “Without the Owner’s Consent” is Part of the Conduct UUV Criminalizes, NOT a Circumstance
Oregon Appellate Ct - February 3, 2016
by: Aalvarez • February 11, 2016 • no comments
- UUW - Holding a Gun Coupled with Angry Statements is Sufficient to Prove Intent to Fire the Gun
- Merger - Plain Error - Possession of Multiple Guns in One House Merge into One Conviction
- Knowingly Allowing an Acquaintance to Store Guns in Your Home is Sufficient Evidence of Constructive Possession
- Dependency - Failure to Present Sufficient Evidence to Justify Jurisdiction - No Evidence of Harm to Child
- Former Speedy Trial Statute - 19 Month Delay in a DUII Case is Unreasonable
- Miranda - Invocation of Counsel is Equivocal if Reasonably Interpreted in Multiple Ways
- The Court Will Decline to Examine a Federal Issue When No Distinct Analysis Provided
- Officer Safety - Pat Down Not Justified on a Reasonable Suspicion of Serious Physical Injury
- Joinder - Two or More Acts Connected Together - Marijuana Possession and Assault IV in the Same Vehicle
- Severance-Substantial Prejudice - No Prejudice Where Defendant Can Limit the Most Damaging Result of the Joinder
- Choice of Evils - Medical Marijuana Defense - Insufficient Evidence that Defendant's Marijuana Possession Was Necessary as to Justify Defense
- Improper Joinder - Demurrer - Unpreserved
- Joinder - Marijuana Possession and Theft of Firearms Where Evidence of Both was Discovered in One Search
- Severance - Substantial Prejudice - No Substantial Prejudice Where Defendant Does Not Explain How Evidence Will Harm His Case
- Attorney’s Fees - Plain Error in Imposing When the State Puts on No Evidence of the Defendant’s Ability to Pay
Oregon Appellate Ct - Jan. 27, 2016
by: Abassos • January 27, 2016 • no comments
- Assault IV - "Substantial Pain" Can Be Inferred From Observed Injuries and Circumstantial Evidence
- Manslaughter - "Extreme Indifference to the Value of Human Life" Is More Than a Lack of Concern for Social and Legal Responsibility
- The Corpus Delecti Rule - Inner Thigh Bruises and Scratches Are Sufficient to Corroborate a Confession to Touching the Victim's Vagina
- Attenuation - Implied Consent Can Break the Chain Between an Article I, Sec. 12 Violation and Consent to a Breath Test
- PCR - A Dismissal For Failure to State a Claim is Not Appealable
Oregon Appellate Ct - Jan. 21, 2016
by: Abassos • January 21, 2016 • no comments
- Probation Condition - Overbreadth - Ban On Spending More Than $250.00 Without Permission Is Not Overbroad and Is Reasonably Related to Gambling/Theft
- Probation Condition - Overbreadth - Ban on Traveling Outside County of Residence Overbroad and Not Reasonably Related to Theft/Misconduct/Tampering
- Probation Condition - Overbreadth - Ban on Traveling Into County of Crime Is Overbroad in a Stalking Case
- Habeas Petition Challenging Administrative Segregation Must Allege Facts Supporting a Constitutionally Inadequate Process
Oregon Appellate Ct - Jan. 13, 2016
by: Abassos • January 13, 2016 • no comments
- No appellate opinions were issued either the week of January 13th or the week of January 6, 2016.
Oregon Supreme Ct - Dec 31, 2015
by: Abassos • December 31, 2015 • no comments
- A Consent Search Is Justified Only If Someone Who Had Actual Authority Gave Consent. The Federal Doctrine of Apparent Authority Is Inconsistent With Oregon's Conception of Article I, Section 9.
Oregon Appellate Ct - Dec. 30, 2015
by: Abassos and Erin Roycroft • December 30, 2015 • no comments
- Tampering With A Witness – The Defendant Must Have Believed, At The Time Threats Were Made, That the Person Threatened Was Actually Going to Be A Witness
- Attenuation - The Purpose and Flagrancy Factor Is Objective, The Officer's Subjective Intent is Irrelevant
- Photo Radar - A Motion to Dismiss is an Appropriate Vehicle to Challenge the Conditions Precedent
- A Concurrence Instruction Is Required When The State Has Advanced Both Accomplice and Principal Liability
- A Concurrence Instruction Is Not Required For Alternative Factual Means of Proving an Element of the Crime
- Child Sex Abuse - Defendant Was Not Entitled to an In Camera Review of the Victim's Dependency Records
- Confrontation Clause - Right to Examine on Prior False Accusations - Sufficiency of Defendant's Proof of Falsity
- Continuance - Restraining Order Hearing - It Was an Abuse of Discretion Not To Allow Either the Petitioner's Only Witness Or a Continuance
- Vouching - An Officer's Description of an Interview With a Victim Was Not Such Obvious Vouching That It Was Plain Error
- Sentencing – A Probation Condition Is Not Overly Broad If It Is Reasonably Related to the Crime or the Needs of the Probationer
- Delinquency – ORS 419C.261 Dismissal (aka Conditional Postponement) of Sex Offense Does Not Require DA's Assent
- Delinquency – ORS 419C.261 Gives Juvenile Courts the Authority to Dismiss a Petition Pre-Adjudication, Even For the Purpose of Preventing Sex Offender Registry
- Dependency Jurisdiction – An Appeal of an Order Finding Jurisdiction Is Not Moot Just Because the Petition is Ultimately Dismissed
- Dependency Jurisdiction –Drug Use from Five Years Prior Is Not Sufficient to Establish Jurisdiction
- Preservation - Hearsay Objection Is Not the Same as an Objection to Using the Hearsay as Basis of Opinion (i.e. Personal Knowledge)
- Parole - An Appeal of an Order Denying Parole Becomes Moot When the Appellant Is Released On Parole
- Parole - Murder Review Hearing - Substantial Reasoning Supporting a Board Order Means Primarily Explicit Reasoning
Oregon Supreme Ct - Dec. 24, 2015
by: Abassos • December 24, 2015 • no comments
- Child Endangerment - Possession of Drugs Is "Unlawful Activity Involving Controlled Substances"
- Child Endangerment - "A Place Where Unlawful Activity Involving Controlled Substances Is Maintained or Conducted" Means a Drug House
Oregon Appellate Ct - Dec 23, 2015
by: Alisa Larson-Xu and Abassos • December 23, 2015 • no comments
- Reasonable Suspicion - Marijuana Odor Insufficient for Reasonable Suspicion
- Exigent Circumstances – Blood Draw – 2 1/2 Hours For a Warrant and No Officer Time to Get It = Exigency
Oregon Appellate Ct - Dec. 16, 2015
by: Alisa Larson-Xu and Abassos • December 16, 2015 • no comments
- Robbery – Rob-2 Is Not Automatically a Lesser Included of Rob-1
- Prior Violent Acts Are Admissible to Refute Defendant’s Statement That He Would Not Use Force to Harm Another Person
- Felony Resentencing - Where a Conviction is Reversed, The Affirmed Counts Require a Resentencing
- Invited Error – Attorney’s Fees – Recommending An Amount In Sentencing Memo May Invite Error
Oregon Appellate Ct - Dec. 9, 2015
by: Abassos and Alisa Larson-Xu • December 9, 2015 • no comments
- Assault IV - Physical Injury - That the Victim Was Slapped and Felt a Sting Is Not Enough to Establish Substantial Pain
- Scope of Consent to Search - Consent to "Search the Vehicle" for "Anything Concerning" Does Not Include the Search of a Closed Container Inside the Vehicle (Unless the Officer Requests a More Invasive Search)
- Exploitation - The Unlawful Seizure of Defendant By Ordering Him to Get Medical Treatment Was Attenuated From HIs Later Consent to Search Given to A Different Officer at the Hospital
- The Search of a Cell Phone Generally Requires a Warrant - Search Incident to Arrest Does Not Apply
- Incriminating Statements - Statements to an Undercover Officer Will Not Generally Violate Either the Fifth or Sixth Amendments - PCR
- Derivative Use Immunity - Co-Defendant's Statement Was Derived From Defendant's Statement Where the Latter Was Played to Induce the Former - PCR - Death Penalty
- Sentencing – “Remand for Resentencing” Requires A New Sentencing on All Convictions
- Sentencing - Does a Sentence Denying Credit For Time Served Create an Equal Protection Problem Where the Defendant Was Unable to Post Bail?
- Evidence - Hearsay - State of Mind Exception - Defendant's Friend's Intent to Drive Defendant Home Was Admissible to Show That He Did Drive Defendant Home
- Request for Pro Se Representation May Be Denied If It Would Be Disruptive to the Orderly Conduct of a Trial
- PCR – A Written Judgment May State the Grounds On Which the Cause Was Determined By Incorporating Findings Made On the Record
- Dependency Jurisdiction – Mental Health Concerns + Not Fully Engaged in Services + Avoiding Fault for Child’s Injury = Appropriately Continued Jurisdiction
- Dependency - Change of Permanency Plan – Slow Progress in Connecting with Child and Completing Classes Justifies a Change of Plan To Adoption
- Civil Commitment - Intellectual Disability - A Competency Evaluation Will Not Suffice for the Requisite Chapter 427 Diagnostic Evaluation
- Preservation – Where an Exhibit Contains Portions That Are Inadmissible and Portions That Are Admissible, An Objection to the Exhibit Will Not Suffice - Specific Inadmissible Evidence Must Be Identified
- Plain Error - Merger – UUW and Pointing a Firearm at Another Do Not Automatically Merge
