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The Mens Rea for Felony Murder of a Child

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

This is going to be a very short post on a very complicated issue. Really more of an update.

Assume a horrible accusation. The defendant is accused of assaulting a child, and the child dies as a result. To be guilty of "felony murder" in this situation, as opposed to a straight murder, the defendant does not need to intend the death of the child. But does the defendant have to at least know they are causing serious physical injury? Or is negligence enough, i.e., they fail to be aware of a substantial risk of causing serious physical injury?

Post-Owen/Shiffer cases, the state will argue that the answer is "negligence." But Owen and Shiffer involved the Assault II and criminal mistreatment statutes where the legislative intent was unknown. Consequently, Owen and Shiffer are good cases for determining what attorneys and courts should do when the legislative intent is unknown -- at least in the context of assault -- but they tell us nothing about what to do when the legislative intent is clear.

And they don't need to. If the legislative intent is clear, then we go with what the legislature intended. Pretty fundamental principle.

In this case, the legislative intent is remarkably unambiguous. I have it if you need it. Prosecutor after prosecutor testified that for the crime of felony murder of a child resulting from assault, the defendant must know or intend to cause serious physical injury.

Last month in Multnomah County, a judge agreed with the defense that the defendant must know or intend serious physical injury in order to be guilty of felony murder under this particular theory. It came up in the context of a bail hearing. It appears the State of Oregon will be filing a petition for a writ of mandamus on this issue, which means it will go straight to the Oregon Supreme Court. Such writs go on a much faster timeline than direct appeals, so if the state does follow through, we should have an answer within months.

The Scope of OEC 803(18)(a)(b)

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

An increasingly common situation is arising in child sex cases that are reversed by the appellate or in PCR. The state seeks to offer the prior trial testimony of the complaining witness under a hearsay exception of OEC 803(18)(a)(b).

There are a couple of arguments worth making in response. The first is the purpose of OEC 803(a)(b) is so that the jury can evaluate the nature of the "disclosure." This is what State v. Hobbs, 218 Or App 298, 305, 179 P3d 682 (2008) stated. The statute is written quite broadly, but the scope of a statute can be narrowed by legislative intent. (State v. Gaines.) If legislative intent is simply to help the jury understand how and under what circumstances the disclosure was made, the next question becomes, "what is a disclosure?" Is it any discussion of the alleged crimes? Or is it when the child reveals something new and different? And is trial testimony -- at which point the child has told multiple people, from family, to CARES NW, to the police, to the DA, to the Grand Jury -- really a disclosure? If not, then the prior testimony shouldn't be admitted.

If the hearsay exception allows it, then there is a question whether it is admissible under OEC 403. The argument here is that the cumulative nature of the testimony is inherently prejudicial because people are more likely to believe false things when they are repeated.

The mechanism for how repetition impacts credibility was explained in How Liars Create the Illusion of Truth by Tom Stafford.

“Repeat a lie often enough and it becomes the truth”, is a law of propaganda often attributed to the Nazi Joseph Goebbels. Among psychologists something like this known as the "illusion of truth" effect. Here's how a typical experiment on the effect works: participants rate how true trivia items are, things like "A prune is a dried plum". Sometimes these items are true (like that one), but sometimes participants see a parallel version which isn't true (something like "A date is a dried plum"). After a break – of minutes or even weeks – the participants do the procedure again, but this time some :of the items they rate are new, and some they saw before in the first phase. The key finding is that people tend to rate items they've seen before as more likely to be true, regardless of whether they are true or not, and seemingly for the sole reason that they are more familiar.

Id. [Bold added.]

If the judge overrules the objection to the admission of the trial testimony, how much of the prior testimony should come in? The state will usually argue it all is admissible, and it will cite Hobbs, 218 Or App 298, 305, 179 P3d 682 (2008) as authority. But Hobbs does not go nearly as far as the state will likely claim. At issue in Hobbs was the victim's diary. The Hobbs court described it as follows:

[T]he entire document is about the events leading up to the abuse, the abuse itself, and the victim's feelings during and after that time. The journal paints the picture of a developing sexual relationship between defendant and the victim, beginning with his questions about kissing and culminating in the charged acts of abuse, and includes an account of the victim's emotional reaction to the changing relationship.

Hobbs, 218 Or at 307.

The appellate court noted that the type of disclosure at issue was within the scope of what the legislature intended. However, the Court also noted the full scope of the hearsay exception is unknown. The Court noted that "the outer limits of a statement 'concerning an act of abuse' may not be clear. . ." Id. at 305. The Court specifically said it did not need to decide those limits in that case. Id. It found the portions of the diary fell within the scope of the exception "regardless of any textual ambiguities regarding the scope of a statement 'concerning an act of abuse. . . .'" Id. at 306.

I suspect large portions of the original trial testimony will blow past the reasonable limits of the hearsay exception. I recommend making a specific objection to individual statements in the testimony (again, assuming it is not kept out as a whole.)

And you may want to apply those limits to the CARES NW, Liberty House or Children's Center interviews. As the COA state, we don't yet know the limits of OEC 803(18)(a)(b). Which means it's all the more likely a well-preserved objection will result in an appellate decision that will provide clarity (and maybe get the convictions overturned.)

The Brown-Poston Demurrer

by: Ryan Scott • September 28, 2023 • no comments

This is from a Brown-Poston demurrer.


Under current case law, the state must allege the legal basis for joining counts in a mult-count indictment. If the basis for joinder is not properly alleged, the indictment is vulnerable to a demurrer.
Under more recent case law, specifically State v. Brown, 326 Or App 46, 57 (2023), the Court of Appeals has held that, in order for joinder of multiple counts to be proper, each count must be properly joined with every other count. In other words, that A is properly joined with B and B is properly joined with C is not enough to allow joinder in one indictment unless A is also properly joined with C.
In this case, the indictment expressly alleges why some of the counts are properly joined with some of the other counts. However, under Brown, that is not good enough. It is not sufficient to alleged, as here, that “Count 7 (Reckless Driving) was “of the same or similar character and a common scheme and plan as Count 5.” It must set forth in the indictment why count 7 is properly joined with all other counts in the indictment, not merely one other count.

Updated Argument on Gun Minimum

by: Ryan Scott • September 24, 2023 • no comments

Since my last blog post on the gun minimum in mid-August, I have significantly revised my memo that argues that the gun minimum must be imposed on the primary offense and cannot be deferred to a later (and non-M11) count.

I have also added a constitutional argument.

Be forewarned that cutting and pasting have made the formatting a bit wonky, but with that caveat, here is the substance of the argument:

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Upward Departures

by: Ryan Scott • September 13, 2023 • no comments

Meg Huntington will be presenting on the law on upward departures this weekend at the OCDLA Conference in Newport. The materials for the conference have been made available to all attendees. I can tell you that her materials are very thorough, and there is no doubt that when I receive an upward departure notice in the future, I will be comparing the alleged factors to her materials. If you are unable to go to the conference, you should nevertheless order her materials. They are that useful.

Can the Judge Pick and Choose Which Count To Impose the Gun Minimum On?

by: Ryan Scott • August 16, 2023 • no comments

A very common situation is this. The defendant is charge with a M11 offense, such as Robbery in the First Degree with a Firearm. They are also charged with Felon in Possession of a Firearm with a Firearm. The language in each count "with a firearm" refers to the gun minimum sentence enhancement that is codified at ORS 161.610.

The "gun minimum" carries a minimum of 60 months (5 years) in prison, which makes it less than the mandatory minimum sentence for any M11 offense. However, the minimum can be suspended for the first gun minimum conviction, although whether it is suspended or not, a second gun minimum conviction carries a mandatory 10 years in prison. The first gun minimum can also only be imposed once.

Assume the defendant is convicted of the charges above. Can the trial judge not impose the gun minimum on the robbery count and instead impose it on the felon in possession count? The advantage of doing so is that the felon in possession count -- because it has a separate "victim" than the robbery count -- can be run consecutively. In other words, imposing the gun minimum on the second count would permit a sentence of 150 months (90 plus 60) whereas imposing it on the first count would only allow a much shorter sentence.

The argument is no, the judge cannot pick and choose which count to impose the gun minimum on. The reason why is as follows:

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What Can Brown Do for You?

by: Ryan Scott • August 16, 2023 • no comments

In September, I will be presenting at the OCDLA CLE in Newport. I will be speaking on severance, aka, having separate trials for different counts. You'll need to go to the conference for my full presentation, but I wanted to alert everyone to State v Brown, 326 Or App 46 (2023).

In Brown, the Court of Appeals held that all counts that are joined for trial must be properly joined with all other counts. They rejected the argument that "if A is properly joined with B and B is properly joined with C, then A, B and C, can all be joined in one trial, even if count A and count C are not properly joined."

Here's the most basic hypothetical I can think of. If the defendant -- a convicted felon -- is charged with murder in December by stabbing, and a second murder in January by shooting, he might fact the following charges:

Count 1: Murder

Count 2: Murder w/ a Firearm

Count 3: Felon in Possession of a Firearm w/ a Firearm.

Assume the murders are completely unrelated. Before Brown, the state would argue that count 1 is properly joined with count 2 because the counts are "same or similar." They would also argue that count 2 and count 3 are properly joined because they are from one criminal episode and part of a common scheme or plan.

Post-Brown, the defendant would counter that count 1 and count 3 are not properly joined. They are not "same or similar." They are not part of the same transaction or a common scheme or plan. There is no independent basis for joining counts 1 and 3. Therefore, each murder should have a separate trial. There is no obligation for the defendant to show "substantial prejudice," although obviously each trial will be more fair if tried separately.

Third Proportionality Post in a Row

by: Ryan Scott • August 3, 2023 • no comments

There is another way I think we should be using the proportionality clause to attack sentences. It is when the exact same behavior can produce wildly different sentences depending on the charging creativity of the prosecutor.

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Proportionality Clause and Sentences Consecutive to Murder

by: Ryan Scott • August 2, 2023 • no comments

Does it make sense to impose a sentence that the defendant only serves after he has been rehabilitated? The following is taken from a memorandum of law set to be heard at the end of August, 2023.

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Proportionality Clause and Sex Abuse II Based on Age

by: Ryan Scott • August 2, 2023 • no comments

Cruel and unusual punishment shall not be inflicted, but all penalties shall be proportioned to the offense.

Here's my question. The identical crime can be treated by statute as either a misdemeanor or a felony. There is no legal distinction whether it is one or the other. Can both misdemeanor and felony punishment be proportionate to the exact same behavior?

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Attempted DCS Sentencing

by: Ryan Scott • October 24, 2021 • no comments

Every Attempted DCS felony has a crime seriousness level (CSL) 2. It does not matter if the defendant is charged with substantial quantities of commercial drug offense factors.

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Incorporating the Grand Jury Clause from the Bill of Rights to State Prosecutions

by: Ryan Scott • November 29, 2018 • no comments

Yesterday, in a case called Timbs v. Indiana, the United States Supreme Court heard oral argument on whether the Excessive Fines Clause of the 8th Amendment applied to the states.

When the Bill of Rights -- the first 10 amendments to the US Constitution -- was first adopted, it did not apply to the states. However, the passage of the Due Process Clause of the 14th Amendment -- which does apply in state court -- was widely interpreted as incorporating some of the first 10 amendments, that is, limiting state power in state criminal prosecutions, primarily. But which federal constitutional rights protect a defendant in state court and which do not? Early on, it was hit or miss, and in 1884, in a case called Hurtado v. California, the US Supreme Court appeared to hold that the indictment clause in the Fifth Amendment does not apply to state prosecutions. More on this later.

Over time, the Supreme Court increasingly held that the Due Process Clause of the 14th Amendmendment incorporated more and more of the Bill of Rights. And the trend has been to reverse earlier opinions that said otherwise. For example, it wasn't until 2010 that the US Supreme Court held that the 2nd Amendment (the right to bear arms) was incorporated by the Due Process Clause, reversing very old precedent. Thus, in state court, a defendant could cite the federal protections of the 2nd Amendment when challenging a state statute.

In the Timbs case, the question at issue was whether the Due Process Clause incorporated the provision in the 8th Amendment that prohibits "Excessive Fines." Here's what SCOTUSblog had to say about how the argument went:

Although the only question before the justices in Timbs’ case was whether the Eighth Amendment’s excessive fines clause applies to the states, the justices spent very little time on that question, because there appeared to be broad agreement on the court that it does. Justice Neil Gorsuch seemed to summarize the feeling on the bench in a question for Thomas Fisher, the Indiana solicitor general who argued on behalf of the state. Gorsuch asked, almost rhetorically: The excessive fines clause “applies to the states, right?” Gorsuch observed that most of the Supreme Court’s cases interpreting the Bill of Rights to apply to the states “took place in like the 1940s.” Somewhat incredulously, Gorsuch continued, “here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on.

[Emphasis added.]

Why does this matter in Oregon? It matters for two reasons. Two provisions from the Bill of Rights that have arguably not yet been incorporated are the right to a unanimous jury (which is not expressly found in the Bill of Rights) and, as mentioned above, the right to a Grand Jury indictment.

I'm not going to talk about the first. This post is about whether the Grand Jury Clause applies to Oregon. But before we get to that, your first question should be, "who cares?"

That should be your first question because Oregon's Constitution has its own Grand Jury clause, Article I, section V. It states that felony prosecutions require an indictment by Grand Jury, a waiver of indictment or a preliminary hearing. If the Oregon Constitution guarantees at least a preliminary hearing, why does it matter that the federal constitution does not?

But the reason it matters is this: the US Constitution recognizes as elements of crimes -- often referred to as Blakely elements -- that the state constitution does not. These elements enhance or aggravate a crime, and they can significantly lengthen the defendant's period of incarceration. Because they are not recognized as elements of a greater offense under the Oregon Constitution (with some exceptions), they do not need to be submitted to a Grand Jury under the Oregon Conbstitution. In other words, the prosecutor can threaten to double the defendant's potential sentence by dashing off -- without any oversight by a Grand Jury or a magistrate -- a number of often ill-thought-out enhancement factors up to 60 days obtaining the indictment.

But because these are elements of aggravated offenses under the US Constitution, if the Grand Jury clause was incorporated as part of the 14th Amendment, and therefore applicable to the state's, the current statutory notice scheme for enhancement factors would be unconstitutional. It would require some form of oversight, and as a result, we would see far fewer enhancements and thus shorter prison sentences.

Put another way, if Hurtado v. California were overturned, then a large number of defendants would benefit. For one, it would decrease the prosecutor's leverage pre-trial. More than anything else -- even more than unanimous juries -- it would have a significant impact on the number of people in prison by generally reducing the length of prison sentences.

(Yes, the prosecutor could still get upward departure factors past the GJ or past a magistrate, but as with anything else, the harder you make it for someone to get a widget, the fewer widgets they will get.)

Since Justice Gorsuch appears to believe that partial incorporation doesn't pass the laugh test, maybe we should be thinking about challenging the use of enhancement facts that haven't been submitted to the Grand Jury and give him the opportunity to apply the last part of the 5th Amendment to Oregon criminal prosecutions.

But I mentioned above that Hurtado "appeared" to hold that the GJ Clause doesn't apply to state prosecutions. Why the hedge?

While it's true that Hurtado found that it does not violate Due Process when the state doesn't submit a charge to the Grand Jury, it does appear to say that Due Process would still require a preliminary hearing. The Hurtado court wrote, after a discussion of the importance and history of Grand Jury indictments:

Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law.

In other words, a preliminary hearing in state court prosecution satisfies Due Process. If this is correct, enhancement factors that aren't subject to preliminary hearings, even if Hurtado isn't overturned, violate the US Constitution.

This concept -- that maybe the right applies but not the full scope of that right -- was endorsed -- at least generally -- by Justice Kagan at the same oral argument mentioned above. Again, SCOTUSblog:

At one point during Fisher’s time at the lectern, Kagan noted that, when the Supreme Court decides that a provision of the Bill of Rights applies to the states, “there are always going to be questions about the scope of the right” that applies. But when the justices “have decided whether to flip the switch” and decide whether a right applies, it hasn’t decided those questions, instead leaving them “for another day,” she explained.

That sounds like exactly what Hurtado did. Maybe you don't get an indictment in state court but the protection that an indictment is supposed to provide is satisfied by a preliminary hearing.

Using profile evidence as substantive proof of guilt

by: Ryan Scott • November 19, 2018 • no comments

It is not unusual, in a promoting prostitution case, that the defendant is in jail when the crimes allegedly occurred. Tape recorded jail calls will reveal that the defendant sought to have money placed on his books by a woman whose phone number is often used in backpage ads, which offer her services as an escort, though nothing expressly illegal is described in the ad itself. The money that is subsequently placed on defendant's books at the jail is, under the theory used to obtain an indictment, "pursuant to an agreement or understanding that the money, goods, property, services or something else of value is derived from a prostitution activity."

In these cases, the alleged prostitute never testifies, and it is up to a police officer to testify as an expert that those backpage advertisements are consistent with "prostitution activity." This falls under the category of "profile evidence," because there is no direct evidence of this particular person exchanging sex for money, but rather, that she does things -- such as placing lawful backpage advertiesements -- that other people -- who did exchange sex for money -- also did.

Is that enough to prove that the money placed on the books was derived from prostitution activity?

It shouldn't be, and there are a number of ways to attack it. One way would be to move for a limitation on the jury's consideration of the officer's profile evidence testimony. Specifically, the jury should be prohibited from using the profile evidence as substantive evidence that she in fact prostituted herself.

Case law in Oregon is thin or non-existent when it comes to the uses for which profile evidence can be put. Other jurisdictions have more developed case law in these areas. In 'AZ v. Escalante, (issued Sept 14, 2018), the Arizona Supreme Court -- under their version of the plain error standard -- reversed convictions based on the use of profile evidence as substantive proof of guilt, which is impermissible because "of the 'risk that a defendant will be convicted not for what he did but for what others are doing.' [Lee, 91 Ariz at 54.]"

The AZ court wrote:

The prosecutor here introduced drug-courier profile evidence. He elicited testimony from officers who, after relating their training and experience in drug interdiction, described typical behaviors of drug-traffickers, thereby suggesting that because Escalante also engaged in such behaviors, he too was a drug-trafficker.

The court noted that such evidence can have value, but not as substantive evidence of guilt. If you're representing someone whose is charged with promoting or compelling prostitution because profile evidence is the only evidence the non-testifying witness engaged in acts of prostitution, use AZ v Escalante and the cases it cites to limit the jury's consideration of that evidence as substantive proof of prostitution activities. Then, move for a motion for judgment of acquittal at the close of the state's case. If you won the former, you'll likely win the latter.

What kind of person makes false rape accusations?

by: Ryan Scott • September 17, 2018 • no comments

An article on this topic here.

Post-Carpenter, What's the Status of the 3rd-Party Doctrine?

by: Ryan Scott • June 22, 2018 • no comments

Orin Kerr's same-day take on the status of the third-party doctrine can be found here (question #9)

Key quote:

It lives, but there is an equilibrium-adjustment cap on it. The old understanding was that the third-party doctrine is a bright-line rule: When you voluntarily disclose information to someone, whether to an undercover officer or a business you're working with, you don't have Fourth Amendment rights in the recipient's copy of that information. Chief Justice Roberts says that the third-party doctrine is more limited than that.
As I read him, the Chief seems to be saying that there is an equilibrium-adjustment limit on the third-party doctrine. Once the third-party doctrine starts to give the government massive new powers, the third-party doctrine may no longer apply. Here's the key passage:
"There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.The Government thus is not asking for a straightforward application of the third-party doctrine, but instead a significant extension of it to a distinct category of information."

As many of you may know, I've written about the limitations on the third-party doctrine under the Oregon Constitution ever since St v Ghim came out. OCDLA had a presentation on Ghim at the Winter Conference 2017, which is looking rather prescient right now.

There is a lot for defense attorneys to work with now, under both Constitutions.

Warrantless Seizure of Vehicle's Black Box: 4th Amendment Violated

by: Ryan Scott • April 24, 2018 • no comments

Fourthamendment.com has the details.

More upward departure challenges

by: Ryan Scott • August 30, 2017 • no comments

Whenever you receive an upward departure notice, you should review the relevant OARs, which can be found here.

This is because the OARs may provide a defense that isn't obvious from the notice. For example, the OAR on vulnerable victim is quite explicit that the defendant must have known of the specific vulnerability. Further, it's not enough that the person is "vulnerable" but that the vulnerability "increased the harm or threat of harm." That will not be true in all cases. I also like the use of the word "extreme." In the context of age, I'm inclined to think that 14 isn't an extreme age. Nor is seventy.

(B) The offender knew or had reason to know of the victim's particular vulnerability, such as the extreme youth, age, disability or ill health of victim, which increased the harm or threat of harm caused by the criminal conduct.

Also of note is the limitation on the "multiple victims" enhancement.

(G) The offense involved multiple victims or incidents. This factor may not be cited when it is captured in a consecutive sentence.

In certain cases, that second sentence is key.

Upward Departure Challenges

by: Ryan Scott • August 29, 2017 • no comments

Here are two important challenges to upward departure factors. They're basic, but often forgotten by even experienced defense attorneys.

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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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Another Reason "On Supervision" Shouldn't Merit a Durational Departure

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

If you do felony sentencings, then you know that there is a three-step process in order for the defendant's sentence to be upwardly departed. First is notice that the state intends to prove one or more aggravating factors to the trier-of-fact. The second is actually proving that factor beyond a reasonable doubt to the trier-of-fact. And the third is the judge finding "the circumstances are so exceptional that imposition of the presumptive sentence would not accomplish the purposes of the guidelines."

I have previously written why I believe why "on supervision" never justifies an upward departure. The reason is simple: a defendant's status of "on supervision" is not remarkable. In fact, it's probably more likely than not. If so, it isn't the type of "exceptional" circumstance that the judge must find in order to upward depart.

There is a new case that probably justifies making this argument with a bit more vigor. In State v. Davilla,,the Court of Appeals reversed an upward departure on an aggravated murder conviction. It did so because the reasons given for the upward departure were insufficient.

To be clear, we are not holding that a defendant’s use of a dangerous weapon could not, as a matter of law, justify a departure sentence. Rather, we conclude that the court’s explanation here regarding defendant’s choice of a small, dull knife and the “increased pain and suffering” experienced by the victim as a result is insufficient to demonstrate why defendant’s use of a dangerous weapon in this case created circumstances so exceptional that the imposition of a presumptive sentence would not accomplish the purposes of the guidelines.

If the state has proven "on supervision", and the judge is now deciding whether to seek an upward departure, be sure to point out that "on supervision" is not exceptional, as demonstrated by the post I linked to above, but also insist that the judge put on the record the reason why "on supervision" is so remarkable in this case that it demonstrates why the guidelines sentence is not sufficient. The judge will have a much easier time explaining why a presumptive probation is insufficient, but she will likely stumble over explaining why a presumptive prison sentence, particularly a long prison sentence, is not sufficient. The key is to ask -- and ask again if necessary -- that the judge put on her reasoning. In the absence of such a request by the defendant, the Court of Appeals will be less likely to hear a complaint that the judge's lack of explanation is insufficient.