[DV_listserv] Legal Update

[Domestic Violence issues]

State v. Corbin (12/23/15)

(This case was adjudicated pre-Williams):

Defendant, in two trials, was convicted of multiple DV and non-DV related crimes. In the first case, the prosecutor under 404(3) and 404(4) offered evidence of Defendant's other bad acts toward the victim. The Defendant objected under 404(3) but did not respond to the State's 404(4) argument. The trial court admitted the evidence under 404(3), finding that the evidence was relevant to Defendant's intent.  In the second case, the prosecutor offered Defendant's other bad acts under 404(3). Again, the trial court admitted the evidence. In both trials, the court conducted the requisite prejudicial vs. probative analysis.  The court did not give a Leistiko instruction in either case. That is, the jury was not instructed that, before considering "other acts" evidence, it must first decide whether the Defendant actually committed the current charged offenses. The Defendant did not request the Leistiko instruction nor did it object to the court's failure to give the instruction. However, on appeal the Defendant claims that the trial court erred in admitting the other acts evidence without giving the Leistiko instruction.
Holding: The Defendant failed to preserve his argument (because he did not request a Leistiko instruction nor object to it not being given). Also, under Williams, failure to give the Leistiko instruction is not plain error. Also, although the Court was not explicit in its Mayfield analysis " the court made specific findings in both cases, concerning the probative value and prejudicial effect of the evidence."
http://www.publications.ojd.state.or.us/docs/A154001.pdf

Williams Reminder:

Earlier this year, the Oregon Supreme Court issued its ruling in State v. Williams (357 Or 1 (2015)). Williams is a child sex abuse case in which the prosecutor offered as a trial exhibit children's underwear from the defendant's home to prove that the defendant had a sexual interest in young girls and that his sexual touching of the victim was not accidental, as defendant was claiming. The trial court admitted the evidence. Defendant was convicted.

The Supreme Court upheld the conviction. The court's opinion sets forth an analysis of the rules  governing  the admissibility of "other acts" evidence. This ruling has significantly changed the ability of prosecutors to use "other acts" evidence in all criminal prosecutions, not just child sex abuse cases. Most notably, the court ruled that OEC 404(4) supersedes OEC 404(3) re: the admissibility of evidence of a defendant's "other acts" in a criminal trial. Evidence of a defendant's "other acts" is generally admissible so as long as the evidence is relevant and does not violate due process (which requires a balancing test if the evidence is objected to by the defendant.) Also, "propensity" evidence may be admissible in child sexual abuse cases, and possibly in adult sex abuse and DV cases. Finally, it is important to remember that "[p]rosecutors should not rely on Court of Appeals decisions that have suggested that a trial court need not conduct OEC 403 balancing, because those cases may no longer be good law." (DOJ's Legal Bulletin: Admission of a Defendant's Other Acts: OEC 404(4) After State v. Williams, pp 6.)
http://www.publications.ojd.state.or.us/docs/S061769.pdf


**Recommendation: Argue all applicable evidentiary rules; don't just rely on 404(4). And if you rely on 404(3) then you also need to make sure that the appropriate jury instructions are provided.


Erin S. Greenawald
Sr. Assistant Attorney General | DA/LE Assistance| Criminal Justice Division
Oregon Department of Justice
2250 McGilchrist Street SE, Suite 100, Salem OR 97302
Main: 503.378.6347 | Desk: 503.934.2024 | Fax: 503.373.1937

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