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Increasing the Chances of Reversal

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by: Ryan Scott • December 1, 2019 • no comments

Any good attorney is going to spend some time and thought -- prior to trial -- in identifying issues that might have legs on appeal and making sure those issues are well-preserved. This is no less true for cases you are highly confident you'll win at the trial level. No verdict is guaranteed.

Part of the analysis is recognizing that some issues have a better shot on appeal than others. One reason for this is what is known as the "standard of review." Every issue on direct appeal in Oregon is premised on a mistake by the trial judge. Without getting into a full analysis now, suffice it to say that some decisions by the trial judge are subject to greater scrutiny than others.

The least amount of scrutiny is reserved for a standard of review known as "an abuse of discretion." For example, if the prosecutor is seeking to offer "prior bad acts" of the defendant into evidence, and the judge engages in an OEC 403 analysis (e.g., determining if the prejudicial value of the other bad acts substantially outweighs the probative value), the judge's decision to allow in the evidence would only be reviewed on appeal for an abuse of discretion (e.g., whether the judge's decision was within the realm of a legally permissible decision.) In the vast majority of cases, a judge's discretionary call -- even if different than the one the appellate judges would have made -- will be upheld.

But there are ways to significantly increase the chances of appellate success in an area of law where the chances of success are usually low. First and foremost, returning to the example above, after the judge has ruled against the defendant and agreed to allow the state to offer evidence of prior bad acts, the trial attorney should -- routinely and as a matter of course -- ask the judge to put the OEC 403 balancing on the record for "meaningful appellate review."

Under current law, a trial judge -- in most cases -- need only say he conducted the balancing. They need not say on the record how he assessed the prejudice or the probative value, unless the trial attorney asks them to do so.

If asked, and the trial judge refuses to do so, that alone may be grounds for reversal (or at least a remand to the trial court). If the trial judge agrees to put their balancing on the record, there is a remarkably high chance they'll do it wrong. For example, judges are frequently conditioned to give as many reasons for their rulings as possible. If they deny a motion to suppress, for example, they'll say they did so because they believed the police office, and the defendant didn't have a privacy interest anyway, and the evidence would have been inevitably discovered. In the context of a motion to suppress, giving as many reasons as possible will increase the likelihood the judge will be affirmed on appeal, because each justification by itself may be sufficient to prevail.

But that's not true for OEC 403 balancing. If a judge says the prior bad act is admissible for "motive, intent and character evidence," that doesn't give the judge three reasons to be right. It gives the judge three reasons to be wrong. Because if the evidence isn't admissible for intent, it means the judge has assessed the probative value of the evidence incorrectly, giving it more weight than it deserved. That means the OEC 403 balancing wasn't conducted properly, and that alone might be enough to reverse (or remand).

That doesn't happen if the trial attorney doesn't ask the judge to put their balancing on the record.

The same can be true for other decisions that are reviewed for an abuse of discretion, including the denial of good time. If the judge gives an improper reason (relying on a mistaken fact or a fact not in evidence, to give just two possible examples), the case may get sent back.

The key phrase, again, is "meaningful appellate review." Trial counsel need not reargue the issue they've just lost. They should simply and politely ask the trial judge to put their reasons on the record for "meaningful appellate review." If the judge makes a clear error in the analysis, it would probably help to point out the error (but, again, politely, since the judge has already ruled). The rest is up to the appellate attorney.