Oregon Appellate Court 06-29-11
by: Abassos • June 28, 2011 • no comments
Read the full article for details about the following new cases:
- Jury Instructions-Reversible Error
- Hearsay-Reversible Error
- Speedy Trial-Subsequent Indictments
- Disordered Mental State-Recklessness
- Termination of Parental Rights
- Statutory Counterparts-ORS 813.010
- Another Southard Error
- Southard-Opening the Door in Cross Examination
- Southard-Vouching, Not Reliability
Contents |
Jury Instructions-Reversible Error
A jury instruction is improper if either (a) it is legally wrong or (b) taken with all the other instructions, it is misleading. Here, an answer to a jury question that Assault II merely requires physical injury with a dangerous weapon (rather than serious physical injury) was neither wrong nor, taken with the other instructions, misleading. Even though it was a little misleading by itself since Assault II requires conduct that could have caused serious physical injury. State v. Maney
Speedy Trial
An indictment begins a new case for speedy trial purposes. Thus, failure to appear at an arraignment on a citation does not constitute consent to post-indictment delay, assuming the person has no knowledge of the indictment. State v. Loza
Disordered Mental State-Recklessness
In a long overdue opinion, the Court of Appeals makes it clear that mental illness is relevant to the mental state of recklessness. Thus, disordered mental state evidence (aka Diminished Capacity), offered under ORS 161.300, applies to a crime with a reckless mental state. State v. Nebert
Termination of Parental Rights
Even assuming that the juvenile court was correct in finding that the father was unfit, termination of his rights was still improper because DHS failed to establish that the integration of the child into the father's home was improbable within a reasonable amount of time. DHS v. L.E.G.
DUII - Statutory Counterpart
A Nevada DUII is a statutory counterpart to an Oregon DUII because, even though a person can be convicted for having a .08 BAC 2 hours after driving in Nevada, it "has the same use, role or characteristics" as Oregon's DUII. Also, the Nevada DUII doesn't count as a diversion because it's not a diversion-a first time offender gets a reduced sentence for treatment, but still has a conviction on their record. State v. Rutherford
Sex Abuse Diagnosis - Absence of Physical Evidence
In the absence of physical evidence, a diagnosis of sex abuse is not admissible. See Southard. State v. Bahmatov
The correct objection for excluding a diagnosis of sex abuse in the absence of physical evidence is vouching. The correct answer is not reliability. Reliability is an issue of credibility for the fact finder and not an issue with regards to admissibility. State v. Kelly
If, while cross-examining the state's expert, a defense attorney opens the door to a discussion of diagnosing sex abuse and then also fails to object when the state brings up the actual "diagnosis" on re-direct, the court will decline to exercise it's discretion to reverse the plain error. Lesson, if you do open the door: object. The correct answer is vouching. State v. Martinez-Sanchez
Hearsay-Reversible Error
Incorrectly admitted hearsay is not harmless when it is the only evidence offered to prove an element of the crime at issue. Here, in a charge for theft by receiving, it was not harmless to admit hearsay when it was the only evidence offered to show that the item at issue was actually stolen. State v. Harper
