OCDLA Library of Defense - Latest Case Reviews

INEFFECTIVE ASSISTANCE OF COUNSEL - Defendant's competency RIGHT TO JURY TRIAL - Waiver INEFFECTIVE ASSISTANCE OF COUNSEL - Filing notice of appeal RESTITUTION - Good cause to extend deadline MENTAL HEALTH DEFENSES - Extreme emotional disturbance

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Oregon Supreme Court, December 2, 2021

by: Rankin Johnson • December 2, 2021 • no comments

HEARSAY AND CONFRONTATION - Proof of unavailability

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Oregon Appellate Court, November 24, 2021

by: Rankin Johnson • November 27, 2021 • no comments

SENTENCING - Restitution

SEARCH AND SEIZURE - Voluntariness ASSAULT - Substantial pain SEARCH AND SEIZURE - Stop and arrest

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Oregon Supreme Court, November 24, 2021

by: Rankin Johnson • November 27, 2021 • no comments

JOINDER, SEVERANCE, AND ELECTION - Timing of election

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Oregon Appellate Court, November 17, 2021

by: Rankin Johnson • November 19, 2021 • no comments

TRIAL PROCEDURE - Waiver of preliminary hearing

EVIDENCE - Other-bad-acts and plans FINES, FEES, AND COSTS - Statutory maxima EVIDENCE - Consciousness of guilt

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Oregon Supreme Court, November 17, 2021

by: Rankin Johnson • November 18, 2021 • no comments

EVIDENCE - Doctrine of chances

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Oregon Supreme Court, November 12, 2021

by: Rankin Johnson • November 12, 2021 • no comments

DEATH PENALTY - Retroactivity

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Oregon Appellate Court, November 3, 2021

by: Rankin Johnson • November 5, 2021 • no comments

FALSE INFORMATION TO A PEACE OFFICER - Authority to issue citation

MERGER - Defense counsel's obligation SEARCH AND SEIZURE - Probable cause

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A New Old Other Bad Acts Special Jury Instruction

by: Ryan Scott • September 16, 2025 • no comments

There are a number of cases -- particularly child sex cases -- that include "other bad acts." The other bad acts are not necessarily offered to prove the defendant committed the act at issue (touching the breast, for example) but to prove that he did so with a sexual purpose. In other words, the other bad acts are not relevant to the actus reus, only the mens rea.

In that situation, the defendant is entitled to certain jury instructions, the goal of which is to limit the jury's consideration of those other bad acts to the purpose for which they are offered.

Consequently, in a case, for example, where the defendant is, say, a gym teacher charged with sexual contact with a minor (A), and the state wants to offer allegations that defendant touched a different minor (B) at a different school, the defendant might be entitled to the following instructions:

(1) You may only consider the allegations involving B when deciding whether [defendant] had a sexual purpose when touching A.

(2) This means you must first decide if [defendant] touched A's breast. You may not consider allegations involving B when you make that determination.

(3) If you find that there was contact with A's breast, you must decide if it was done for a sexual purpose. Only then -- and only for that purpose -- are you allowed to decide if the allegations involving B are true.

(4) If you find the allegations against B are true, then and only then should you consider them when deciding if the contact with A was done with a sexual purpose.

First, let me give full credit to Kyle Krohn for walking me through this analysis. I simply misread the case law until he patiently explained it to me. Hopefully, these instructions accurately reflect and capture his analysis.

Second, you will notice that I have essentially turned one instruction into four. That is done on purpose. I always do it that way. If the trial court doesn't give the instructions at all, and the COA thinks I'm mostly right but quibbles with some of the language in one sentence (which could be fatal to the appeal if presented as just one instruction), the case may still be reversed if not giving the 3 remaining instructions was error.

Third, the case law supporting this are Leistiko and Pitt.

Fourth, don't feel bad if you don't get this instruction. Child sex cases are hard to win under the best of circumstances, and this will give you a good shot at appeal.

Fifth, a smart prosecutor may not agree, but they won't object to those instructions out of fear of giving you an issue for appeal.

Sixth, these instructions could have broad application, but they will have to be modified for your specific case and the exact reason the other bad acts are coming into evidence. Not all "other bad acts" go to mental state. Those instructions will get tricky.

The State's Likely Response to Bravo-Chavez

by: Ryan Scott • September 12, 2025 • no comments

The Court of Appeals released State v. Bravo-Chavez, 343 Or App 326 (2025) this week, re-affirming their approach to pre-trial election previously set out in the Antoine cases, as well as State v. Payne.

This was a big deal, because the AG's office had maintained the position that there was no such thing as "pre-trial" election, and if it did exist, it was entirely discretionary with the trial court. A number of trial court judges seemed to think the same. And I suspect that will continue to be the AG's position when they petition for review to the Supreme Court.

But for now, the Court of Appeals has made it clear that a defendant has "a right" to pre-trial notice, and that that right encompasses the right to have the state elect, when there is doubt about the exact nature of the charges.

The state argues that in “resident child abuser” cases, in which the victim typically testifies in a generic and undifferentiated way to repeated acts of abuse over a sub-stantial period of time, then “no reason exists to require” the state to make an election before the close of the state’s case-in-chief, and the state may not be able to make an intelligent election until after the victim testifies. But that argument ignores a defendant’s constitutional and statutory right to notice of the charges. The purpose of a motion for pretrial election is to ensure that defendants have notice “ ‘of the specific criminal acts that the state would prosecute at trial, in time for defendant[s] to tailor [their] defense to those specific incidents.’ ” Payne, 298 Or App at 421 (quoting Antoine I, 269 Or App at 79).

Bravo-Chavez, 343 Or App at 339.

The other key takeaway from Bravo-Chavez is that it may not be enough for prosecutors to elect by way of saying "first time" or "last time." It was not good enough in this case, but that may have had more to do with the fact that the trial judge did not think it was good enough, and such a finding was within the scope of her discretion. See fn 8.

I suspect the state will misread that last point. A defendant has a right to pre-trial election when there is a need for it. That's not within the discretion of the trial court. Whether the state's election, once made, is sufficient may be something the appellate courts will defer to the trial judge on. Or maybe not. We don't yet know.

In other words, in addition to the state arguing to the Supreme Court that Bravo-Chavez is wrong, the state is likely to insist that whether to require election is still discretionary with the judge. The state will argue that the trial judge exercised her discretion and it was upheld, but a judge could just as easily exercise their discretion the other way. That is not supported by the opinion. Adequate notice of what they have been charged with is a defendant's statutory and constitutional right. And because it is a right, a defendant only needs to show that they cannot tell the bases for the charges. A defendant does not have to show ahead of time how and why he is prejudiced by the denial of that right. Yes, there is still a harmless error analysis, but no affirmative duty to prove prejudice when a defendant has a right to the information.

The state may also argue that failing to demur to the indictment (that is, an Antoine demurrer) means the defendant has waived the right to an election. As the court noted, that was not raised in this case, but the state has made that argument in a case under advisement. See fn 6.

I would note that there are a handful of "election" cases that have already been briefed and argued at the COA, and it is very likely any ambiguity still left after Bravo-Chavez will be answered very quickly.

Finally, I want to express my admiration to those of you who were intelligent and aggressive enough to make these election arguments in the face of scoffing and dismissal from prosecutors and judges. Your clients were well-served.

How Should I Start Jury Selection? The Court of Appeals Just Told Me.

by: Henry Oostrom-Shah • August 17, 2025 • no comments

How should I start jury selection? The Court of Appeals just told me—and maybe you, too.

Yes, you heard that right. As a new guy who graduated law school in 2023, I’ve often struggled with breaking the ice during jury selection—and doing so in a way that advances my trial theory.

Thankfully, the Court of Appeals (O’Connor, J.) just released an opinion that tells trial lawyers how to pick a jury. Specifically, the opinion in State v. Pugh suggests how we can set up voir dire to ensure the trial judge strikes unfriendly jurors. 341 Or. App. 435, 439–40 (2025). And, if the trial judge denies our for-cause challenges, how we can get the appellate court to reverse a guilty verdict.

Pugh reminds us to sprint to bias as soon as we stand up in front of the panel.

→ continue reading...

Primer on Preserving As Applied Challenges to Gun Laws

by: Henry Oostrom-Shah • July 30, 2025 • no comments

The State has charged your client with felon in possession of a firearm where their only felonies are old or non-violent crimes. File a pre-trial motion to dismiss. Demand a hearing. At that hearing, show the judge that your client is no longer a danger to others. Call witnesses to talk about how safe and law-abiding your client is. Bring in employment, treatment, and schooling records. Talk about the lack of subsequent violent criminal history. Because your client is no longer a danger, they still have a constitutional right to bear arms.

More follows below, including helpful federal and state cases to support your arguments.

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Does the Lack of a Mental State Render Most Major Sex Crimes Unconstitutional?

by: Ryan Scott • July 17, 2025 • no comments

The Oregon Supreme Court is going to hear argument in September in the case of State v. Monaco. The conviction was for felony murder. One of the "questions presented and proposed rules of law" identified in the opening brief is as follows:

Third Question Presented. Does ORS 163.115(1)(b), Oregon’s felony murder statute, violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution?

Proposed Rule of Law. This court has interpreted ORS 163.115(1)(b) as creating a presumption of a culpable mental state for the causation-of-death element of felony murder, by the defendant’s commission or attempted commission of the underlying felony. Such a legal presumption violates due process because it is inconsistent with the presumption of innocence, relieves the state of its burden to prove every element of the offense, and invades the province of the jury. In the alternative, it violates due process by establishing a strict-liability offense for a violent felony.

My question, which is in the larval stage of development, is this: Are any of the constitutional principles on which the Monaco argument relies applicable to major sex crimes where no mental state at all applies to the element that makes a defendant guilty (the age of the victim in a Jessica's Law case) or where no mental state applies but the defendant has the ability to raise an affirmative mental state defense (sex with a sleepy or intoxicated person)?

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Article I, Section 16, Opportunities

by: Ryan Scott • June 17, 2025 • no comments

Article I, section 16, of the Oregon Constitution states:

“Excessive bail shall not be required nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.”

The proportionality provision requires a “comparative relationship” between punishments and the offenses for which they are imposed:

“The term ‘proportion’ indicates a comparative relationship between at least two things. See, e.g., 2 Noah Webster, An American Dictionary of the English Language 45 (1828) (“proportion” indicates a “comparative relation”). Here, the two things being related are “penalties” and “the offense,” and the provision requires that the penalties for each particular offense be “proportioned”—that is, comparatively related—to that offense. The strong implication of that requirement is that a greater or more severe penalty should be imposed for a greater or more severe offense and, conversely, that a less severe penalty should be imposed for a less severe offense.”

State v. Wheeler, 343 Or 652, 655-56, 175 P3d 438 (2007)

The test for making proportionality determinations has “at least three factors” to consider, including: “(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant.” State v. Rodriguez/Buck, 347 Or 46, 58, 58 n 6, 217 P3d 659 (2009).

Buck/Rodriguez involved Measure 11 crimes, requiring a 75 month mandatory minimum sentence. But the actual behavior was rather minor, and therefore the 75 month sentence was overly severe.

In addition, the Oregon Supreme Court has held that characteristics of the defendant plays a significant role in determining if a sentencing is disproportionate. In State v. Ryan, the Court held:

"Evidence of an offender's intellectual disability therefore is relevant to a proportionality determination where sentencing laws require the imposition of a term of imprisonment without consideration of such evidence. Accordingly, we conclude that, where the issue is presented, a sentencing court must consider an offender's intellectual disability in comparing the gravity of the offense and the severity of a mandatory prison sentence on such an offender in a proportionality analysis under Rodriguez/Buck."

Id. at 620-21.

In State v. Gonzalez, the Oregon Supreme Court held that other characteristics other than intellectual disability may be relevant, but rejected the argument that the defendant's mental health attributes rendered a M11 sentence unconstitutional.

I think, however, the case law has only scratched the surface of situations where Article I, section 16, would come into play. What follows are some ideas for when the constitutional protections of the proportionality clause might be triggered.

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Is A Defendant Entitled to a Jury Trial On Restitution?

by: Ryan Scott • June 13, 2025 • no comments

Today, the OSC issued a press release that announced one case it was granting review on, and a number of cases it was not. Among those cases where the court was not granting review, individual justices either said they would have granted review or, more likely, concurred in the denial of review but felt the issue was worth addressing in a future case.

In other words, the individual justices were alerting lawyers -- defense lawyers in particular -- of issues they would like to see raised in future cases.

One of those cases was State v. Anne. Justices DeHoog and James both concurred in the denial of review "but observed that the petition raised an important legal issue that the Court should consider in

an appropriate case." Do they say what that issue is? Nope, I had to look up the case to find out what the issue was. And let me tell you, it's a doozy.

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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.

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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 (life, 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.

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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.

The Easiest -- or is the hardest? -- Part of Being a Criminal Defense Lawyer

by: Ryan Scott • April 1, 2025 • no comments

There are a lot of clever, creative, hard-working criminal defense lawyers in Oregon. And reflecting that qualities, they come up with -- or rediscover -- legal arguments no one else is currently thinking about. And those arguments have the potential to benefit their clients tremendously, even if the arguments don't prevail until they get to a higher court.

But the great thing about criminal defense in Oregon is, you don't have to be particularly creative or clever to make those same arguments. You just have to be in a position to hear about them. One way, for example, is to check out the Oregon Supreme Court's press announcements on every second or third Friday. It will the cases, if any, the Supreme Court has granted review on, a majority of which will be either criminal cases or criminal-adjacent. Had you checked last Friday, you would have learned that the Supreme Court granted review to the constitutionality of Oregon's felony murder scheme. If you've got a felony murder client, you've just been alerted to a motion you can file that may result in your client's felony murder charge being dismissed.

(For the non-lawyers out there, felony murder is unlike any other murder. It doesn't require intent to kill the victim and it doesn't require the defendant personally kill the victim.)

So how great is this? The trial lawyer in that case -- State v. Monaco, fyi -- and the appellate attorney have done all the heavy lifting. They have researched the issue, found the case law, and made an argument sufficiently compelling that the Supreme Court thinks it has merit. Once you've got the briefs, it will maybe take you a half-hour to write your own motion, which may -- down the road -- either result in a dismissal of the charge or, if the prosecutor is smart, get you a better plea offer to avoid the possibility of dismissal. (The morning the press release came out, I mentioned it to a prosecutor, and her reaction was not dismissive. She probably would have been dismissive if I had told her the basis for the legal challenge. Rather, she was "not dismissive" because she believes it's entirely plausible the Oregon Supreme Court will make a decision that could put every felony murder in doubt. For negotiation purposes, that's just as valuable to you as an argument the prosecutor might find credible.)

I give this example, because I think taking five minutes once very 2-3 weeks to look at the Supreme Court press release is, relative to the amount of effort it takes, perhaps one of the most valuable uses of your time, even recognizing you don't have a lot to spare. But even if you don't make a habit of doing that, you would have heard the news anyway if (1) you were on the defense listserve and (2) read my e-mail on the topic. (Not by any means the same thing.)

If you don't want to be on the listserve (I get it), there are other things you can do to keep abreast of new arguments. You can go to OCDLA conferences. You can have friends who love to talk about the law and arguments they've recently heard about. You can read the Library of Defense. You can read the full opinions of the COA to look for new and novel issues the COA rejected but not on the merits. Or COA dissents, where the dissenter made a pretty compelling argument and you think there is a chance the issue will get to the OSC.

But most of all -- and this is either the easiest or hardest thing to do, depending on your personality -- you've got to get excited about new and novel arguments.

Most attorneys don't. And if they don't get excited, they are less likely to do any of the things I mentioned above. Even when they hear about an argument, they are unlikely to make it, because the time it would take to ask for a sample motion and change the caption doesn't seem worth the effort.

I suspect, but I don't know, that the attorneys who don't get excited about new and creative ways to help their clients are also the least happy attorneys. If you don't find joy in a new and fun argument handed to you on a silver platter, an argument that might give you leverage in negotiations or a win at the appellate courts, you are missing out on one of the more significant pleasures of being a defense warrior. Yes, there are other less-cerebral ways of finding joy in the job, but this one is perhaps the easiest.

Or, if you're not interested, the hardest.

A Finding of a Sufficient Pause Must Be Made by a Jury

by: Ryan Scott • March 24, 2025 • no comments

Procedurally, the Court of Appeal's opinion State v. Ballangrud, issued on March 12, 2025, is a bit complicated. Substantively, the bottom line is this:

At least one judge on the Oregon Court of Appeals believes that one of the findings necessary to defeat merger -- a sufficient pause between crimes that would otherwise merge -- is a jury question under the 6th Amendment of the US Constitution. It's like an Apprendi/Blakely factor but even more profound. A finding of a sufficient pause doesn't increase the sentence for a conviction. It increases the number of convictions. Could anything be more a jury question than how many convictions a defendant ends up with? If it's a jury question, the state must give notice no later than 60 days after arraignment, and, absent a waiver, it must submit the question of a substantial pause to the jury.

This opinion was expressed by the Chief Presiding Judge in a concurrence. The majority rejected the argument, at least in part, because it concluded -- wrongly -- that the defendant-appellant had improperly argued the issue to the court (something the concurrence rejected). But even the majority left open the possibility that if properly raised, it would hold the question of a sufficient pause should be submitted to the jury. And whatever the COA ultimately does hold, the issue is of such importance that I would assume the Oregon Supreme Court will eventually grant review.

Please preserve this now. Raise it at sentencing, arguing that the state never go notice of an intent to submit the question to the jury, much less actually submitted it. For argument, just provide the judge a copy of the concurrence in Ballangrud.

Good luck!

PS: And yes, I wrote multiple blog posts arguing this exact thing over ten years ago.

Is Actual Innocence a Viable Claim in Post-Conviction?

by: Ryan Scott • February 21, 2025 • no comments

Oregon Supreme Court has announced its intent to answer that question.

On February 20, 2025, the Supreme Court:

1. Allowed petitions for alternative writs of mandamus in:

Jordan Perkins v. Corey Fhuere (S071631) (original mandamus proceeding involving an order of the Marion County Circuit Court, Case No. 23CV53183) relator was convicted of sex offenses

against a victim and sentenced to prison. The victim subsequently recanted their testimony, stating in a notarized declaration that their sexual contact with relator had been consensual.

Based on that recantation, relator petitioned for post-conviction relief, alleging the stand-alone claim of actual innocence and that his conviction and sentence violated the state and

federal constitutions. The state moved to dismiss the petition for failure to state a claim, on grounds that relator's stand-alone actual innocence claim was not a basis for postconviction

relief. The trial court agreed with the state, dismissed relator's petition, and relator petitioned for a writ of mandamus.

The Oregon Supreme Court issued an alternative writ, directing the trial court to either vacate the order entered November 27, 2024, granting the state's motion to dismiss and dismissing with prejudice relator's Amended Petition for Post-Conviction Relief, and to enter an order denying that motion; or, in the alternative, to show cause for not doing so.

The issue in this mandamus proceeding is:

Whether a stand-alone claim of actual innocence may provide a basis for post-conviction relief.

UPDATE: The briefing is complete and oral argument is set for June 5, 2025, at 1:30PM. You should be able to watch the argument live, or at any time after 4PM that same day. You'll be able to find the link starting here: https://www.courts.oregon.gov/courts/appellate/media/Pages/webcasting.aspx

Sexual Penetration and Contaminated Memories

by: Ryan Scott • February 1, 2025 • no comments

"[The] phenomenon of false memory, and the circumstances that can contribute to the creation of a false memory, are complex and beyond the experience of ordinary jurors. . . ."

State v. Dye, 286 Or App 626 (2017)

There are a number of attorneys who are skeptical of the benefits of hiring a memory expert in a child sex abuse case (or any other case for that matter). Often, these attorneys -- many of whom are in their fifties or sixties -- have never actually consulted with a memory expert. By consult, I don't mean a five minute conversation but actually hiring them to review the case. They will also tell you that the prosecutors they've talked to will claim they've never lost a case in which the defense hired a memory expert. They will also tell you, contrary to the quote from State v. Dye above, that jurors understand the idea of suggestion and don't need an expert to point it out.

I'm not going to get into a whole long argument why I think these attorneys are wrong and are committing malpractice when they fail to have a meaningful consultation with a memory expert when there is any possibility the accusations are based on a false memory. But I do want to give one very narrow, very specific example that comes up frequently in sexual penetration cases. Since sexual penetration for a child under 12 carries a mandatory 25 year sentence, the punishment is far more severe than a sexual abuse I, which is "only" 75 months.

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Chess Moves: Bench Trials, Severance Motions and OEC 404

by: Ryan Scott • January 9, 2025 • no comments

Yesterday, the Court of Appeals issued an opinion in which the primary issue was the trial court's denial of a motion to sever. The Court never reached the merits because they found any error in denying severance was harmless. So this post really isn't about severance at all, but about how judges will try to immunize their bad rulings when the defendant waives jury, and the most effective way to stop them from doing so.

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Challenging Language from Standard Instruction 1005

by: Ryan Scott • October 30, 2024 • no comments

In every criminal trial in Oregon for decades, the jury has likely been told the following:

"Generally, the testimony of any witness whom you believe is sufficient to prove any fact in dispute."

You should object to that language and, if the judge does not want to strike it outright, ask for this alternative:

"Generally, the testimony of any witness whom you believe is sufficient to prove any fact in dispute. If the fact is necessary to proving an element of the crime, you must believe the witness beyond a reasonable doubt with regard to that fact."

The basis for the objection is this. As currently constructed, the instruction – or at least a reasonable interpretation of it -- undermines the requirement that the state prove its case beyond a reasonable doubt. It would permit a juror to find against the defendant when it believes the complainant on a material element of the crime, but does not believe the complainant beyond a reasonable doubt. See State v. Purrier, 265 Or App 618, 621, 336 P3d 574 (2014)(state’s argument “incorrectly describe[ed] the jury’s task as choosing which of two versions of events the jury finds more believable” and was confusing and misleading because it “omit[ed] the possibility, among others, that the jury would find the state’s version more plausible, yet not be convinced beyond a reasonable doubt.”)

The instruction is also unduly slanted towards the state, which is the only party that must actually prove any fact in dispute (assuming no affirmative defense on the part of the defendant.) See State v Martin, 290 Or App 851, 417 P3d 505 (2018)(prohibiting even legally correct jury instruction when it was unduly slanted in favor of one party.)

Similarly, because only one side has the burden in this case, telling the jury what it takes to find a fact in dispute has been proven is an inappropriate comment on the evidence.

“A trial court is not permitted to comment on the evidence. Or. R. Civ. P. 59 E; Or. Rev. Stat. § 136.330(1). Or. R. Civ. P. 59 E is applicable in criminal cases. A court impermissibly comments on the evidence when it gives a jury instruction that tells the jury how specific evidence relates to a particular legal issue. A court also impermissibly comments on the evidence if it instructs the jury to draw an inference against the defendant that shifts the burden of proof from the state to the defendant. An inference cannot relieve the state of its burden of proving each element of the crime beyond a reasonable doubt."

State v. Hayward, 327 Or 397 (1998)

The alternative instruction because it is a correct statement of the law and would ameliorate the risk of its misuse. Because the standard instruction relates to a factual finding, a juror may not recognize how it relates to the "beyond a reasonable doubt" instruction, which relates to a finding of guilt. This amendment ameliorates that problem somewhat.

An Easy Demurrer (Failure to Register as a Sex Offender)

by: Ryan Scott • October 4, 2024 • no comments

Prosecutors insist that cases should be routinely joined because it promotes judicial efficiency. But the real reason is that it prejudices the defendant. It may not prejudice the defendant enough to merit severance, but it always increases the chance the jury would decide the case on something other than the merits of the state's argument.

Whenever possible, however, a defense attorney should seek to punish the state by demurring to an indictment that is obviously improperly joined. After all, the prosecutor isn't really inconvenienced by severance of charges that shouldn't have been joined in the first place. But if they have to go back to Grand Jury because the indictment was dismissed, maybe they won't be quite so unfairly aggressive next time.

What follows is an example where the indictment will always be subject to a demurrer.

If you have a client that has at least two charges in one indictment, and one of the charges is "failure to register as a sex offender," that indictment is vulnerable. Why? Because there is no legal way that a failure to register charge is every properly joined with any charge other than another failure to register.

So if your client is pulled over, and a gun or drugs are found in the car, and they didn't register on their birthday six months earlier, if all those charges are in one indictment, they're improperly joined.

Or maybe your client is charged with a rape in the third degree, and, oops, he didn't register from a prior conviction for rape in the third degree, putting the new R3 and a FTR on the same indictment is not legal.

Wait, you say! Maybe that's a motion to sever, but I've got that R3/FTR indictment in front of me and the indictment alleges Poston language ("same or similar" or "common scheme or plan", so how can I get past that?

Here's the answer:

Although “it usually is sufficient for the state to allege the basis for joinder by using the language of the joinder statute,” Warren, 364 Or at 120, the alleged basis for joinder must “be possible, given the offenses and facts alleged.” Warren, 364 Or at 122.

And there is no theory where FTR is "same or similar" to anything other than another FTR. (See Garrett and Gialoretto for the analysis of same or similar.) And what possible scheme or plan could be furthered by failing to register?

Proper joinder is legally impossible. File that demurrer. Make them go back to Grand Jury or make you a better offer.

Antoine Demurrers and Election

by: Ryan Scott • September 9, 2024 • no comments

There are a number of cases currently at the Court of Appeals where one of the claims is the denial of an Antoine demurrer/motion to elect. For some, no demurrer was filed at the trial level and it's just the denial of a motion to elect. In theory, we could end up getting a decision any week, though I think this issue is of such importance, and applicable to so many cases, that the COA will be very careful with the first one they issue.

I’m writing this post because I want to highlight the arguments the AG’s office is making at the COA and a couple of things you can do at the trial level to give your appellate attorney the ammunition for the best possible response.

First, one argument the AG’s office is making is that there really is no legal basis for ever compelling the state to elect before they’ve rested and maybe not even then. Their argument is that in the most notable cases from the past few years (Payne, Antoine direct, Antoine PCR, Justice Duncan’s concurrence), the language regarding elections was just dicta and not binding on trial courts.

It’s partially true that, in a couple of those opinions, the state's failure to elect was discussed in detail but not actually necessary to the final outcome. (I would note that the authors of the Payne opinion and the OSC Antoine concurrence are both current justices, so the AG’s argument faces a serious headwind when one of these cases get to the OSC.) However, it’s not true in the direct appeal in Antoine, where the COA held that the defendant must also argue a motion to elect if he has argued an Antoine demurrer. (I’m simplifying a bit.) The defendant's failure to file a motion to elect was fatal to the appeal and therefore self-evidently essential to the final outcome. Consequently, the AG’s office has backed down slightly, arguing that a standalone motion to elect doesn’t really exist in Oregon law. It only exists as an alternative to a definite and certain demurrer.

I strongly suspect the state will lose that argument, but you can moot it out if you always file an Antoine demurrer along with your motion to elect.

Second, the state will argue that if you want to prevail on a motion to elect before trial, you must explain the harm that will arise if the state does not elect. Of course, the harm may not be obvious until the state elects, but, still, if you can identify some harm, why not do so?

Let’s take a sex case involving thirty allegations but only ten counts. There is enough factual distinction (location, age, etc.) between the allegations that the state could elect if forced. But, as the state says, your defense is all or nothing. You aren’t admitting any of them happened. So what difference does an election make?

I would say this. In cross-examination, you aren’t going to challenge every single allegation. After all, you don’t want the complaining witness to have an opportunity to repeat every allegation. You want to target a specific sample of counts to undermine their credibility. In that situation, you will want to target those allegations – if you know them – that line up with certain counts.

Instead, the state wants to play whac-a-mole. You have a good argument that one incident couldn’t have happened the way the witness says, they’ll just switch out that allegation in their final election. This is a serious fairness and due process problem. Before trial, the state would have said X is the allegation described in count five. You show X almost certainly didn’t happen so halfway through trial, the state decides that count 5 is now Y.

It's also a GJ problem. There is a rebuttable presumption that when the state elects, it mirrors what the GJ found. When the state elects halfway through trial, it’s highly unlikely that’s true.

Next 20 Articles

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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

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