A Book from the Library of Defense

Preservation at its Most Challenging

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by: Ryan • November 1, 2012 • no comments

In the press release from today's Oregon Supreme Court decision, there was this paragraph:

When a party offers evidence as a package and the trial court rejects the evidence, the appellate court will affirm the trial court's order if any part of the evidence is inadmissible. Here, the state had presented the video with Z's statements and drawings in a single proffer of evidence. Because the trial court had not erred in excluding the video, the trial court's order excluding all of that evidence would be affirmed.

What does this mean for the trial attorney? Let's assume the state wants to offer a letter your client's girlfriend wrote to him in jail. If you object to the admission of the letter as a violation of 403, or inadmissible hearsay, or on some other grounds, and there's one sentence in the letter that is admissible, you will lose on appeal.

Essentially, you need to make a separate objection to each sentence. There is probably no way to do this efficiently, but there are more efficient ways than others, and you'll want to think about prior to the 104 hearing. But at least it's relatively straightforward with a document.

Where it gets harder is when the state wants to offer testimony and you want to exclude all of it. For the same reason as above, you need to make a separate objection to each piece of testimony, which can present a greater challenge when there isn't a hardcopy to refer to.

Today's appeal was a defense win on a state's appeal. This is the second time in the last few months where the state has appealed a trial court ruling directly to the Oregon Supreme Court and there was a problem with preservation. I mention this because, frankly, it is easy to screw up preservation, and for that reason, among others, it's a lot easier to be the respondent on appeal. Alas, defendants are rarely respondents. Which brings me to a point I've often made: defense attorneys aren't inherently smarter than prosecutors, but our job places greater demands on us, it is harder to do well, and if we meet those demands, if we rise to the occasion, then at least for the moment we really are smarter, more creative and more prepared.