A Book from the Library of Defense
Namespaces
Variants
Actions

Library Collections

Webinars & Podcasts
Motions
Disclaimer

Blog

From OCDLA Library of Defense
Jump to: navigation, search


Special Jury Instructions for Kidnapping

by: Ryan Scott • January 12, 2024 • no comments

THIS POST HAS BEEN AMENDED. In my opinion, one thing that sets a great defense lawyer apart from a good defense lawyer is the quality of their special jury instructions.

Special jury instructions have a number of advantages. If given, they can put the weight of judicial authority behind your argument. It's not just you saying what the state needs to prove, for example. It's what the judge is saying. If the instruction is not given, the standard of review on appeal is very defense-friendly. To obtain a reversal on an ungiven special jury instruction, you need the instruction to be a correct statement of the law and any evidence in the record that would justify it. This is the reverse of the standard of review for MJOA, where the evidence is viewed in the light most favorable to the state. (To be precise, it's also important that the instruction is not only a correct statement of the law but also is not unduly slanted toward the defendant.)

When are jury instructions most valuable? Usually when the statute is broadly written, but either the legislature or the case law has narrowed the scope of the statute. That happened with the crime of kidnapping, for example. Back in 2017, I spoke at a conference in Portland and recommended -- among many other things -- the following special jury instructions:

→ continue reading...

A Common Mistake Among Minor Felony Attorneys

by: Ryan Scott • December 10, 2023 • no comments

One longstanding argument is that the way the laws are written, a person's ODL should not be suspended because of a conviction for either unlawful use of a vehicle or possession of a stolen vehicle. The reasoning is simple. The law allows a suspension if an element of the crime includes a "motor vehicle." Neither UUV or PSV have an element that specifies "motor" vehilce, and the fact that the crime may have involved a motor vehicle doesn't make "motor vehicle" an element of the crime.

As far as I know, this issue hasn't made it to the Court of Appeals. Part of the reason for that is that certain prosecutors have conceded the issue. Part is that some defense attorneys aren't aware of the issue. Another reason, I suspect, is that even defense attorneys who are aware of the issue decide it's not worth fighting over when the defendant is going to get a two or three-year prison sentence and the license suspension is only for a year. No driving in prison, anyway.

Except that if the trial judge does impose a license suspension of one year, even if the suspension order indicates that the suspension will begin at the time of sentencing, DMV won't actually suspend the license until the defendant is freed from prison, adding to the hardship that comes with leaving prison. The more hardship, the increasing likelihood the defendant will recidivate.

If you want to help your clients stay crime-free when they get out of prison, argue against the license suspension and if you lose, send the issue up to appeal. It won't just be your client who benefits.

Unreasonable Self-Defense

by: Ryan Scott • December 10, 2023 • no comments

If a defendant properly raises a claim of self-defense, the state must disprove that defense. The jury will be instructed as follows:

A person is justified in using physical force on another person to defend herself from what she reasonably believes to be the use or imminent use of unlawful physical force. In defending, a person may only use that degree of force which she reasonably believes to be necessary. The burden of proof is on the state to prove beyond a reasonable doubt that the defense does not apply.

But what if a person believes they are acting in self-defense but their belief is unreasonable? The state will argue the defense does not apply. But is someone who intentionally kills someone no more morally culpable than someone who kills out of an unreasonable misapprehension of the need to defend themselves? Should the law recognize a difference between the two?

Arguably, the law already does so, albeit indirectly. You might be able to get there by applying a mental state to the element of self-defense. All material elements for crimes in the criminal code have mental states barring express language from the legislature. "Not acting in self-defense" is an element (i.e., something the state must prove in order to obtain a conviction.)

For more on this argument, please e-mail me directly.

Threatening to Go And Get a Gun: Is That UUW?

by: Ryan Scott • December 5, 2023 • no comments

If I point a gun at you in a menacing way, that will likely constitute the crime of Unlawful Use of a Weapon, barring any defenses. But what if I tell you that if you don't leave my neighborhood, I'm going to go inside, get a gun, and then come back out and shoot you? Is that UUW?

Here's what the Oregon Supreme Said about the subject, when tasked with deciding whether the "use" in UUW encompassed threatening someone with a firearm.

The problem with both arguments is that they neglect to distinguish between threatening to use a weapon and using a weapon as a threat. The two are not—or at least, not necessarily—the same. One may threaten to use a weapon without ever touching it, as when, for example, a person says to another, "If you do not give me your money, I will get my gun and shoot you." That does not constitute a current "use" of a weapon, as it is a threat to use it sometime in the future. In contrast, one also may use a weapon as a threat, as when one person points a gun at another and says, "Give me your money." In a sense, that is a threat to use the weapon in the future; there is an implicit warning that, if the money is not forthcoming, the gun will be fired. But—and this is key—it is also a current use of the weapon as a threat.

State v. Ziska, 355 Or 799, 808, 334 P3d 964 (2014)

Pointing a Firearm is Not Use of Deadly Force

by: Ryan Scott • December 4, 2023 • no comments

More than once, I've had cases where the defendant was charged with unlawful use of a weapon for pointing a firearm at a trespasser. The prosecutor initially believed that even if the defendant reasonably believed he was acting in defense of his property, his actions were unlawful because you cannot use deadly force to protect property.

You may already see the problem. Threatening the use of deadly force is not the actual use of deadly force. Consequently, the limitation on defense of property -- you can't use deadly force -- does not apply when the deadly force is merely threatened.

Don't take my word for it.

Pointing a firearm at someone does not constitute the use of deadly force. State v. Burns, 15 Or App 552, 562, 516 P2d 748 (1973)(With respect to self defense, and limitations on the use of self defense, "the threat of deadly force does not constitute the use of deadly physical force."); State v. Taylor, 182 Or App. 243, 48 P3d 182 (2002)

Consequently, when a defendant has merely pointed a firearm, and is claiming self-defense, it is error to instruct the jury on the “limitations of use of deadly force.” Taylor, 182 Or App at 248 (“We further conclude, under Burns, that the trial court erred in giving the instruction because there was no evidence that defendant actually used deadly physical force.”

In Taylor, a firearm was pointed but not discharged. The defendant claimed self-defense. The jury was instructed on the limitations of deadly force. As in Taylor, giving the instruction was error.

The Taylor court also found the error was not harmless. It agreed with defendant’s argument, which it quoted as follows:

"By giving an instruction about the use of deadly physical force, the trial court suggested to the jury that it could find defendant had used such force, when, legally, it could not. This could have confused the jury and prejudiced defendant. If the jury improperly found that defendant had used deadly physical force, it would have assessed the legality of his actions in light of the limitations on the use of such force. It would have subjected defendant's actions to a more stringent test to determine whether they were legally justified."

Taylor, 182 Or App At 248.

Anyway, I mention this, because this particular error may not be common, but they do happen, and I'm guessing I'm not the only defense attorney who's had a client in that situation.

It usually takes awhile before issues of first impression start winning. This is the exception.

by: Ryan Scott • November 15, 2023 • no comments

Everyone knows my favorite legal issues involve arguments that aren't the law . . . yet. I have a personal list of arguments that I promoted that initially met with great resistance from the courts, prosecutors and other defense lawyers. Not all defense lawyers, but a lot. The most common argument I hear is that a number of defense lawyers are concerned that if they argue an issue that isn't firmly rooted in case law, they lose credibility with the judge. I disagree, for any number of reasons, but I've heard the argument enough that I know it's a real thing.

But one issue I came up with last year won the first time it was argued and it hasn't stopped. Unfortunately, it's something that -- in many cases -- the state can fix, and they've started doing so. But there are exceptions and often those exceptions arise in cases back from the appeal or PCR, and if properly raised, the issue can substantially undermine the state's case.

→ continue reading...

A Ballistics Test is a Search

by: Ryan Scott • November 10, 2023 • no comments

Assume your client is arrested and his firearm is seized. There wasn't a warrant, just PC to seize the firearm. The police subsequently perform a ballistics test on the firearm and connect the firearm to earlier shootings. In that situation, you absolutely should move to suppress the ballistics test and all evidence that flowed from it. The reasons are as follows:

→ continue reading...

The Portland City Code and Unlawful Possession of a Firearm

by: Ryan Scott • November 5, 2023 • no comments

Since the Bruen opinion from the United States Supreme Court, there have been 2nd Amendment challenges to felon in possession of a firearm (both facial and as-applied), felon in possession of body armor, unlawful possession of a concealed weapon and many more. Each of these has a chance of being successful and some in fact have been successful in certain federal courts. Nothing of course is guaranteed. However, there is one argument where I believe the odds are overwhelmingly in our favor. And that's a challenge to the Portland City Code's prohibition on carrying a loaded weapon.

The key thing to know about the Portland City Code is that it prohibits open carry, as well as concealed carry. Why does that matter? See this quote from Bruen.

In the early to mid-19th century, some States began enacting laws that proscribed the concealed carry of pistols and other small weapons. As we recognized in Heller, “the majority of the 19th-century courts to consider the question held that [these] prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” 554 U S, 30 at 626, 128 S Ct 2783, 171 L Ed. 2d 637. Respondents unsurprisingly cite these statutes—and decisions upholding them—as evidence that States were historically free to ban public carry.
In fact, however, the history reveals a consensus that States could not ban public carry altogether. Respondents’ cited opinions agreed that concealed carry prohibitions were constitutional only if they did not similarly prohibit open carry. That was true in Alabama. See State v. Reid, 1 Ala. 612, 616, 619-621 (1840). It was also true in Louisiana. See State v. Chandler, 5 La. 489, 490 (1850). Kentucky, meanwhile, went one step further—the State Supreme Court invalidated a concealed-carry prohibition. See Bliss v. Commonwealth, 12 Ky. 9 (1822). The Georgia Supreme Court’s decision in Nunn v. State, 1 Ga. 243 (1846), is particularly instructive. Georgia’s 1837 statute broadly prohibited “wearing” or “carrying” pistols “as arms of offence or defence,” without distinguishing between concealed and open carry. 1837 Ga. Acts 90, §1. To the extent the 1837 Act prohibited “carrying certain weapons secretly,” the court explained, it was “valid.” Nunn, 1 Ga., at 251. But to the extent the Act also prohibited “bearing arms openly,” the court went on, it was “in conflict with the Constitutio[n] and void.” Ibid.; see also Heller, 554 U. S., at 612, 128 S. Ct. 2783, 171 L. Ed. 2d 637. The Georgia Supreme Court’s treatment of the State’s general prohibition on the public carriage of handguns indicates that it was considered beyond the constitutional pale in antebellum America to altogether prohibit public carry.
Finally, we agree that Tennessee’s prohibition on carrying “publicly or privately” any “belt or pocket pisto[l],” 1821 Tenn. Acts ch. 13, p. 15, was, on its face, uniquely severe, see Heller, 554 U. S., at 629, 128 S. Ct. 2783, 171 L. Ed. 2d 637. That said, when the Tennessee Supreme Court addressed the constitutionality of a substantively identical successor provision, see 1870 Tenn. Acts ch. 13, §1, p. 28, the court read this language to permit the public carry of larger, military-style pistols because any categorical prohibition on their carry would “violat[e] the constitutional right to keep arms.” Andrews v. State, 50 Tenn. 165, 187 (1871); see also Heller, 554 U. S., at 629, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (discussing Andrews). All told, these antebellum state-court decisions evince a consensus view that States could not altogether prohibit the public carry of “arms” protected by the Second Amendment or state analogues.

N.Y. State Rifle & Pistol Ass'n v. Bruen, 142 S Ct 2111, 2146-2147, 213 L Ed 2d 387, 35 427-429 (2022) [Emphasis added.]

Bruen put the burden on the state to prove the existence of a historical analog to any modern-day firearm prohibition. The good news for the state is that there are plenty of examples of antebellum statutes regarding the open carry of firearms. The bad news for the state is that they were all found unconstitutional.

I highly encourage defense lawyers to raise this argument. More than any other firearm prohibition, this one is likely to be found unconstitutional.

« newest ‹ newer 20 ... oldest »