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Effect on the Listener

by: Ryan Scott • December 16, 2016 • one comment

From Justice DeMuniz's concurrence in Sullivan v. Popoff:

The first issue has to do with the relevance of the so-called effect-on-the-listener statements. Every statement has an effect on the mind of those who hear it; therefore, there is always an argument to be made that an out-of-court effect-on-the-listener statement is admissible because it qualifies as "not hearsay." However, an out-of-court statement is not hearsay only if it is (a) relevant, and (b) offered to show the statement's effect upon the listener's state of mind. Laird C. Kirkpatrick, Oregon Evidence § 801.01[3][d], 705 (6th ed. 2013); see, e.g., State v. West, 145 Or.App. 322, 325, 930 P.2d 858 (1996) (police officer could testify to instruction given by another officer to show the instruction's effect on defendant); see also State v. Hren, 237 Or.App. 605, 607, 241 P.3d 1168 (2010) ("Statements that are relevant to show their effect on a listener are not hearsay."). Stated another way, an out-of-court statement may be offered to show that the making of that statement had some effect on the person who heard the statement if that person's state of mind is relevant to an issue in the case. See State v. Thomas, 167 Or.App. 80, 83-84, 1 P.3d 1058 (2000) (trial court erred in excluding as hearsay witness's out-of-court statement offered to prove the effect on the defendant, one of the listeners). Not every out-of-court effect-on-the-listener statement is relevant to an issue in a case. For example, a police officer's state of mind is seldom relevant to an issue in a criminal case. Thus, when dealing with so-called "effect-on-the-listener," or state-of-mind statements, the question, "Is it relevant?" is just as important as the question, "Is it hearsay?" G. Michael Fenner, The Hearsay Rule 331-32 (3d ed. 2013). [Emphasis added.]

A short primer on relevancy

by: Ryan Scott • December 16, 2016 • no comments

The first question in determining if evidence is admissible -- always the first question -- is relevancy. Once relevancy is demonstrated, the next step is admissibility (e.g., statement of a party opponent, excited utterance, doctrine of chances) and then lastly, whether the probative value is substantially outweight by its prejudicial effect (i.e., OEC 403.)

Normally, relevancy is easy. Does the evidence make a fact in dispute more or less likely?

Relevancy can, in some situations, have two prongs. Let's assume the evidence is only admissible if certain inferences are made. Inferences are okay, but speculation is not. But what if those inferences depend on a separate "fact" that in turn is merely an inference?

If the inference is only relevant if the separate fact is true, then the party seeking to offer the evidence must prove that separate fact before the evidence is admissible. Otherwise, there is improper speculation.

See these recent footnotes from State v. Jesse:

6 See also OEC 104(2) (if “relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition”).
7 The line between permissible inferences and impermissible speculation is difficult to articulate with precision. The federal courts usefully have described that line in these terms:
“The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncrasies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts.” Tose v. First Pennsylvania Bank, N.A., 648 F2d 879, 895 (3d Cir), cert den, 454 US 893 (1981), abrogated on other grounds by Griggs v. Provident Consumer Discount Co., 459 US 56, 103 S Ct 400, 74 L Ed 2d 225 (1982).

If the evidence is being offered by the state, defense counsel MUST request a limiting instruction to be given at the time the evidence is presented to the jury. If no limiting instruction can successfully mitigate the substantial prejudice of admission, then the evidence must be excluded. Consequently, the court must decide what the limiting instruction would be prior to determining if the evidence is admissible. In this way, an inadequate limiting instruction can result in reversal, even if the evidence might be admissible if a proper instruction were given.

Notable Cert Grant: Brady

by: Ryan Scott • December 16, 2016 • no comments

From Scotusblog:

Two of the cases that the justices agreed to review today, Turner v. United States and Overton v. United States, arise out of the brutal 1984 murder of Catherine Fuller, a District of Columbia mother. The petitioners in the case are a group of D.C. men who were convicted of the crime, based in large part on testimony from alleged eyewitnesses. Decades later, a reporter learned that defense attorneys had not received a statement suggesting that someone else had committed the crime; additional discovery then revealed that prosecutors had failed to turn over other evidence that could have aided the defendants. The men sought to vacate their convictions, but were unsuccessful in the lower courts.
Today the Supreme Court agreed to review both cases. Overton had asked the court to weigh in on the standard that the lower court used to evaluate his claim that prosecutors had not complied with their obligations under Brady v. Maryland, which requires the government to turn over information that could exonerate the defendant. Turner and his co-defendants had asked the court to consider whether, when determining the significance of suppressed evidence, courts can consider information that comes to light after trial. But the court today announced that it would review a more straightforward question in both cases: whether the men’s convictions must be set aside under Brady.

Racial Disparity in Florida Sentencing

by: Ryan Scott • December 11, 2016 • no comments

Disturbing analysis reported on here. Key paragraphs:

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Another Great Merger Opinion from the Appellate Courts

by: Ryan Scott • December 5, 2016 • no comments

Last week, the Court of Appeals remanded for merger of three counts of sexual abuse involving three different body parts (two belong to the victim, one the defendant.) The case is State v. Nelson.

Over the past eight years or so, the defense bar has won a tremendous number of merger arguments. This is one of the last big ones. A few more can be found here.

Top 3 Cases from 2016 I'm Thankful For

by: Ryan Scott • November 28, 2016 • no comments

AMENDED: Oops, Villagomez, while still a great opinion, isn't as broad as I assumed below. See State v. Stewart.

First, State v. Villagomez. Before this case, you'd virtually never see a level-4 DCS. They would all be level-6 or level-8. After Villagomez, most Boyd deliveries will be level-4s. What's the difference between 6 and 4? In some cases less prison, in other cases, no prison, and in others, less probation.

Secondly, keeping with the CDO theme, State v. Rankins. This case, by weakening one of the CDO factors (specifically drug records, which no longer include routine texts between dealer and buyer), in combination with Villagomez, will help save a lot of people from prison.

Third, State v. Mansor,, the one computer search warrant case that is essential reading. Police are now routinely getting search warrants for our client's phones, especially in drug cases and homicides. This case will significantly reduce the state's discovery -- and reliance -- on a lot of bullshit character evidence. For example, read this story from Sentencing Law and Policy blog about how a Facebook post written by a defendant when he was 13 is being used by the prosecutor to give a minor life in prison. Key quote:

Prosecutors will use a Facebook post from 2010 when Gerome Moore was 13 showing him in possession of a handgun and "arguably" displaying gang signs to try to show Moore should be sentenced to life without parole in the January 2015 shooting death of Carolyn Temple in Belhaven.  Moore was convicted of capital murder in September, but his sentencing is on hold. A capital murder conviction had meant a mandatory life sentence without the possibility of parole, but a 2012 Supreme Court ruling said judges must consider the unique circumstances of each juvenile offender....
Moore was 17 at the time of the crime. He didn't shoot Temple, but his gun was used. He and at least two others were driving around that evening looking for someone to rob. Prosecutors say they followed Temple's vehicle, a Mercedes, to her boyfriend's house in Belhaven. Once she got out her car and went to the curb to retrieve her boyfriend's garbage can, two of the individuals tried to take her purse. She resisted and one of them shot her. Prosecutors believe Moore stayed in the car and was the getaway driver, although he provided the weapon.

Two Post-Poston Opportunities

by: Ryan Scott • November 28, 2016 • no comments

AMENDED: See below

Situation #1: the state alleges in the indictment a bullshit reason why the counts should be joined. But since a demurrer only looks at the face of the indictment, not the facts of the case, a demurrer would certainly fail. What to do? Answer: motion for mistrial after the state rests. And yes, there's a case on point.

Situation #2: the prosecutor, over-learning the lesson of State v. Poston, lazily alleges all three bases for joinder in the indictment. And then at sentencing, it tries to claim that, contrary to the boilerplate language in the indictment, the counts aren't from the same criminal episode. Answer: equitable estoppel. State can't take opposing legal positions simply because it advances their interest to do so at the time.

It was brought to my attention that the equitable estoppel argument lost in 2011 in a case called State v. Bush. The opinion lays out the Oregon analysis:

The doctrine of equitable estoppel is "employed to prevent one from proving an important fact to be something other than what by act or omission he has led another party justifiably to believe." Stovall v. Sally Salmon Seafood, 306 Or. 25, 33, 757, *376 P.2d 410 (1988) (quoting Wiggins v. Barrett & Associates, Inc., 295 Or. 679, 689, 669 P.2d 1132 (1983)). In order to establish equitable estoppel, a party must offer evidence from which the trier of fact could find that:
"(1) a false representation (albeit an innocent one) was made (2) by someone having knowledge of the facts to (3) one who was ignorant of the truth, (4) that the statement was made with the intention that it be acted upon by the [ignorant party] and (5) that [the ignorant party] acted upon it." Paulson v. Western Life Insurance Co., 292 Or. 38, 52-53, 636 P.2d 935 (1981).

The Bush court then held that the requirements were not met:

Assuming without deciding that the doctrine might apply in some circumstances, defendant has not proved it here. Defendant does not contend that he was ignorant of the truth as to whether and which of the charged offenses arose from the same criminal episode(s). Nor has defendant made a convincing argument that he was prejudiced by the representation that the offenses arose from the same act or transaction, if it was false. If he had believed that he was prejudiced by improperly joined charges, defendant was free to move to sever the charges under ORS 132.560(3) ("If it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses under subsection (1) or (2) of this section, the court may order an election or separate trials of counts or provide whatever other relief justice requires."). Instead, for whatever reason, he did not complain until sentencing. In short, defendant has not shown that he was ignorant of the truth or that he was prejudiced by the state's representation. He has not proved equitable estoppel.

Does this foreclose the argument now? Perhaps not. The opinion was written pre-Poston, of course, and therefore the defendant would not have made the argument that the claim within the indictment of one criminal episode stopped him from filing a demurrer. (And in fact it would have stopped him, because regardless of the facts, that claim on the face of the indictment would have made the indictment immune to a Poston demurrer.)

Now perhaps a defendant could file a motion to sever, if the defendant believes it's not in fact one criminal episode. But this sets up a serious dilemma. If the prosecutor believes it's one criminal episode, then why get a court to convince her otherwise and thus subject the defendant to a greater sentence.

Compounding the problem is that the current state of the law on criminal episodes is a mess. Here is a quote from a draft of a PFR I'll be filing within a couple of weeks:

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Search Warrants for Touch ID

by: Ryan Scott • November 2, 2016 • 2 comments

If you haven't seen this yet, you will. And the courts still have not resolved compelling a defendant to provide his pin.

But, as always, Orin Kerr has something to say on this topic. He sets up the issue with these two hypotheticals:

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Do Email Preservation Letters Violate the 4th Amendment?

by: Ryan Scott • October 31, 2016 • no comments

Discussion here. Orin Kerr is always invaluable on these types of issues. Key paragraphs:

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Malheur Refuge Trial: Why Mental State Matters

by: Ryan Scott • October 30, 2016 • one comment

I did not follow the trial closely, but unlike a lot of people in a similar position, I don't have a strong opinion about the verdict, other than recognizing that the defense lawyers include some of the best lawyers in the state.

But it's plain from reading the jury instructions on conspiracy, and especially the comments of Juror #4, that what was often referred to as the defendant's "state of mind" played a large role in the acquittals.

There is one exception to my lack of strong opinion about the verdict. More precisely, I have a strong opinion about the reaction to the verdict. Many people were quick to claim "white privilege" as a reason for the acquittals. After reading the comments of Juror #4, it's obvious that the jury engaged in thoughtful and careful analysis, and claims of white privilege are not only glibly dismissive but born out of ignorance, even as they might burnish one's liberal bona fides. You may feel that in a different trial, with different jurors, black defendants might not be afforded the same care and analysis, and I might agree with that, but the fact that these jurors did their jobs is not a reason to diminish their thoughtful application of the law to the facts.

Anyway, back to the reason I'm writing this post. The verdict would seem to show that holding the state to proving the defendant's mental state beyond a reasonable doubt can result in an acquittal, even if the actions are not really in dispute. And yet, we still have defendants going to trial with the juries almost certainly being instructed erroneously on the appropriate mental state, thereby relieving the government of its burden of proof.

For reasons I have explained at length before, I believe the standard instructions on assault I, assault II, numerous theft charges, and most statutory rape offenses are erroneous: they let the jury convict on what is a lesser mental state than the law requires. If you have one of these cases, let me know, and I will provide you with sample instructions. My e-mail is ryan@ryanscottlaw.com.

Remember that when it comes to erroneous jury instructions. or the denial of correct jury instructions, there is no better standard of review on appeal. All we need are defense attorneys who take these cases to trial to adequately preserve the issues. I want to help you. Let me.

Privacy Interests in Records Kept by Third-Parties

by: Ryan Scott • October 17, 2016 • no comments

In State v. Ghim, the Oregon Supreme Court held that a defendant may have a privacy interest in “information that a third party collects and maintains for its own use.” Ghim at 436.

However, the issue is highly driven by context. Interestingly, the state – in Ghim – did not argue that as a matter of law, a defendant never had a privacy interest in documents held by third-parties. All sides agreed that whether a privacy interest existed was one that:

can vary, according to the parties’ arguments, depending on contractual and other restrictions that apply to the third party’s use and dissemination of the information, general societal norms, and the level of generality with which the government analyzes the data. See State v. Howard/Dawson, 342 Or 635, 640-41, 157 P3d 1189 (2007) (relying on the absence of any property interest or subconstitutional right or relationship that restricted a garbage company’s handling of trash once the company collected it in holding that the defendants had no protected privacy interest under Article I, section 9).”

Ghim at 437.

It is worth noting that this is an extraordinary departure from past holdings of the Court of Appeals. When Ghim was before the lower court, the Oregon Court of Appeals held:

That result is compelled by decisions of the Supreme Court and this court that have consistently held that, under Article I, section 9, an individual has no protected privacy interest in business records held by a third-party service provider—whether a phone carrier, an Internet provider, or a hospital.

State v. Ghim, 267 Or App 435 (2014), aff’d on other grounds, 360 Or 425 (2016).

In light of the stark contrast between the courts’ analyses of the same issue, the Court of Appeals analysis can no longer be considered good law.

Eyewitness IDs: This is Not the Clown You're Looking For

by: Ryan Scott • October 17, 2016 • no comments

Amusing story about a man who fired a warning shot at a knife-wielding clown. The clown ran, and the police went on a manhunt, and they found a clown hiding in the bushes. Case closed? Not exactly.

Key quote:

“the homeowner didn’t identify this clown as the correct clown,” Myers said. “His guy had a full clown costume and a mask, and the clown he saw was taller.”

Oh, and if that wasn't enough:

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How much evidence is necessary to obtain an in camera review?

by: Ryan Scott • October 15, 2016 • no comments

With far too much frequency, some judges are hesitant to grant an in camera review of Grand Jury notes. In justifying that decision, there is often a reference made to the historical secrecy of GJ notes, but (1) an in camera review avoids any of the concerns about disclosure because an in camera review, by definition, means the defendant does not see the notes unless they contain Brady material, and (2) we don't usually see such hesitancy regarding, for example, medical records, which have a far greater claim to being privileged.

It is especially strange given that the standard for obtaining an in camera review is not that high.

Generally, in determining whether to conduct an in camera inspection of such material, the court should engage in a two-step process. The first step is to determine whether the party seeking the review has “produced evidence sufficient to support a reasonable belief that in camera review might yield” relevant unprivileged evidence. Frease v. Glazer, 330 Or 364, 373, 4 P3d 56 (2000).

State v. Bray, 281 Or App 584 (2016)

A reasonable belief that it might yield relevant evidence? You mean, like a statement made during testimony that is inconsistent with a statement made to the police? In such a scenario, the GJ testimony -- often given closer in time to the statement given to the police, and given under oath -- might easily yield impeachment material.

Preserve, and preserve well. This is an issue we will win on eventually, not because the Constitution favors us (though it does), but because it is simply, fundamentally, right that the state shouldn't be allowed to hide behind Grand Jury secrecy to avoid giving over evidence that their witness may have given different evidence at GJ.

Orin Kerr on Remotely Accessing an IP Address

by: Ryan Scott • October 14, 2016 • no comments

I wonder if this argument could have implications for child porn suppression motions, for those situations where the defendant can claim he didn't know how much information he was sharing with the world when he joined a P2P network. People who have dealt with P2P networks claim that anyone going onto a P2P network must know what that entails; I'm not convinced myself that it is as intuitive or obvious as we might think, especially when the "default" setting when you download the software is "share." Might depend on what you see on the interface.

Anyway, the article by the always valuable Orin Kerr is here.

The Demographics Behind the Recent Crime Increase

by: Ryan Scott • October 14, 2016 • no comments

Are you wondering why crime is up? Who do you think is responsible for the increase? As they like the say in teasing the local news, "the answer will surprise you."

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Experience and Search Warrants

by: Ryan Scott • October 1, 2016 • no comments

Remember in the post immediately preceding this one, I suggested that additional language on the affiant's experience won't be enough to get to all the parts of the cell phone that the police can't get to in light of St v Mansor?

If that argument appeals to you, go here. Key quote:

We conclude that probable cause to search or seize a person’s cellular telephone may not be based solely on an officer’s opinion that the device is likely to contain evidence of the crime under investigation and, accordingly, that the seizure here was not supported by probable cause. We separately conclude also that, in these circumstances, the Commonwealth has not, in any event, met its burden of demonstrating that the delay of sixty-eight days between the seizure and the application for a search warrant was reasonable. We therefore affirm the Superior Court judge’s order allowing the defendant’s motion to suppress.

Great New Search Warrant Opinion Not About Cell Phones And Yet . . . .

by: Ryan Scott • September 28, 2016 • no comments

Just a couple of months ago I posted regarding a federal case on a search warrant for a drug dealer's home. That was a nice opinion. Today, the Oregon COA issued an equally great opinion, State v. Webber. Worth reading in full, but here's a worthwhile paragraph:

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The biggest sentencing news since Blakely?

by: Ryan Scott • September 14, 2016 • no comments

Well, not as big as Blakely. Not as sexy. And not constitutional. Just a matter of statutory construction. But the impact may be significant. All you need is a client charged with delivery of a controlled substance, and the odds are pretty good your client will benefit from today's opinion.

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Due Process Joinder Issues

by: Thad Betz • September 10, 2016 • no comments

We’ve all been there: clients facing a slew of crimes against alleged victim #1 and a slew of crimes against alleged victim #2. These could have been joined in the same indictment, or they could have been separate charging documents joined together. The result is the same---you are left thinking, after reading a pretty depressing joinder severance statute, ORS 132.560, that the cases or counts will remain joined together and that your client won’t get a fair trial. Its true, they won’t. Which is why fundamental fairness needs to be our focus. There are at least three different places that due process comes into play: (1) reading due process into the subfactors allowing joinder, (2) weighing whether or not joinder itself can provide for a fair trial using Rule 403, and (3) crafting specific trial procedures and jury instructions in the event of a joinder of wholly separate incidents.

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Significant Commercial Drug Offense Opinion

by: Ryan Scott • September 9, 2016 • no comments

We don't get very many opinions on the Commercial Drug Offense factors which can aggravated a simply delivery or possession to a level 8. Part of the reason is that even if you've got a good challenge, and you preserve it, it might be mooted out by the simple fact that -- even if you were to win -- the state would have more than three factors to rely on.

Anyway, this week's opinion in State v. Rankins is wonderful, and it might provide a basis for new arguments and renewed attention to the factors.

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