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You, yes YOU can Edit This WebsiteThe OCDLA Library of Defense is a digital manual for criminal defense built by the collective contributions of OCDLA members. Ultimately, it will contain every law, every case, every expert, every resource and every good idea an Oregon defense attorney might need. But only if you help us out. If you visit a page on this website that is missing a case or has a typo, please edit the page. You can even reorganize or rewrite the page if you're feeling ambitious. If you have any questions or suggestions, please email Alex Bassos at abassos@gmail.com Recent Blog Posts
This Week's Cases Reckless Burning > Property must have market value or replacement value Property that is burned in an arson-related offense must have a market value or a replacement value. If market value cannot be shown, there must be a cost for replacement. Here, Defendant burned a used cracker wrapper, an unspecified quantity of toilet paper, and a paper drinking cup in his room at a rehab center. The State failed to show that there was an actual market or replacement cost for the items burned. The state also failed to show that the items were “the property of another,” which requires that someone other than the actor has a legal or equitable interest in the property. Nothing in evidence showed that the items burned were meant to be returned to the rehab center as their own property. Reversed. State v. Nyhuis
In order to establish that his 6th Amendment right to confrontation was violated by admitting a witness’s out-of-court statements, a defendant must show that (1) the statements were testimonial, and (2) that the victim was not available for cross examination about those statements. Here, the victim in a child sex abuse case testified on direct that she remembered the date of her statements to a DHS worker and that they were true, but the state did not elicit testimony as to the content of those statements. Defense counsel did not cross-examine her about the content of the statements. At the end of its case-in-chief, the state played a DVD of the victim’s DHS interview, and the defendant did not recall the victim to cross-examine her. The court held that although the statements were testimonial, this tactic did not violate defendant’s right to confrontation because the witness was available in court to be cross-examined. The defense also argued that the victim’s mother should not have been permitted to testify about statements made by the victim while riding in the back seat of the family car. The court held that this was not the “functional equivalent” of testimony, and the statements were properly admitted. State v. Pollock
Because walking is physical evidence concerning appearance or physical condition and does not communicate beliefs, knowledge, or state of mind, it is not testimonial evidence. Here, surveillance video showed someone stealing a gun from a vehicle. Defendant sought to demonstrate his walk in order to show the peculiarity of his walk due to a broken back. The trial court ruled that demonstrating a walk was testimonial and that by demonstrating the walk Defendant would waive his right not to testify. Defendant chose not to demonstrate his walk and was convicted. The court held this to be harmful error and reversed. [State v. Fivecoatshttp://www.publications.ojd.state.or.us/Publications/A144729.pdf|State v. Fivecoats] Rules of Conduct Provided by Department of Corrections Are Not “Rules” under the APA “[R]ules of conduct for persons committed to the physical and legal custody of the Department of Corrections, the violation of which will not result in…disciplinary procedures adopted pursuant to ORS 421.180” are not “rules” for the purposes of the APA. ORS183.310(9)(f). Here, the defendant challenged a notice that warned that “inappropriate behavior could also warrant…exclusion from participation in the hearing.” Unlike the “Notice of Rights” in Smith I., the form in this case is not an APA rule because it was a rule of conduct by the department, and violation of the rule does not result in disciplinary sanctions. Smith v. Dept. of Corrections Permanency Plan Under Indian Child Welfare Act (ICWA) – DHS Must Prove “Active Efforts” Toward Family Reunification Where Child is an “Indian Child” Where a child is an “Indian Child,” DHS must demonstrate “active efforts” before changing the permanency plan. Here, mother had two children, one, A, who was an “Indian Child” and one, J, who was not, thus DHS must make “active efforts” respecting A and reasonable efforts respecting J. Both of A’s parents were incarcerated and parties to this case, whereas J’s father was unknown. Mother: DHS worked with mother’s prison counselor and facilitated letter-writing between mother and children and attempted to allow the children to visit her in DOC custody, but the child’s psychologist did not recommend it. DHS also assisted mother to obtain drug and alcohol treatment, which DOC would not provide, but mother received AA and similar services nonetheless. Thus, DHS made active efforts to reunify mother with A (and thus “reasonable efforts” to reunify with J as well). |
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