Oregon Appellate Court 01-05-12
by: Abassos • January 4, 2012 • no comments
Read the full article for details about the following new cases:
- Hearsay - Statement Against Penal Interest - Availability
- Stop - Free to Leave
- Restraining Order Hearing - Right to Cross Examine
- Probation - Community Service - Consent of Defendant Required
Contents |
Hearsay - Statement Against Penal Interest - Availability
The appellate court revisits this case in light of Cazares-Mendez and reaffirms. The issue is when the confession of a third party, offered as hearsay evidence, is admissible under the hearsay exception for statements against penal interest. Cazares-Mendez ruled that a statement against penal interest is admissible, even where the declarant is available, if "corroborating circumstances clearly indicate the trustworthiness of the statement." In Cazares-Mendez there were multiple witnesses who had heard detailed confessions that related particulars that were peculiar to the crime." Thus, the evidence should have been admitted. This was a murder case where the defense wanted to offer evidence that a serial killer confessed to his cellmate that he committed the crime. But the confession lacked details, was subsequently retracted, was unconfirmed by any circumstantial evidence and came from a "singularly untrustworthy declarant". Affirmed. State v. Anthony | |
Stop - Free to Leave
Defendant was not stopped when an officer walked up to him on the street, asked if he could talk to him and then asked for consent to do a patdown. Consistent with State v. Ashbaugh, there is no stop unless there is a show of authority such that a reasonable person would feel restrained. The court finds that there was even less of a show of authority in this case than in Ashbaugh because here, the officer was alone, was making first contact and was casual and noncoercive. State v. Kinkade | |
Restraining Order Hearing - Right to Cross Examine
The court reverses and remands for further proceedings because the court did not allow defendant's attorney to cross examine the DHS witness who testified for the petitioner. "You know what, we ran out of time" said the judge. The court is unimpressed with that justification for denying cross:
The lack of a "fundamentally fair" hearing. . . is apparent.
Probation - Community Service - Consent of Defendant Required
Community service may not be imposed as a condition of probation without the defendant's "consent to donate labor for the welfare of the public." ORS 137.128(1). Remanded for resentencing. State v. Everitt | |
