§ 20.5 Trial

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 20.5 TRIAL

§ 20.5-1 Waiver of Right to Counsel

A defendant in a criminal case has the right to be represented by counsel at all critical stages of the proceedings, as secured by Article I, section 11, of the Oregon Constitution and by the Sixth and Fourteenth Amendments to the United States Constitution. Gideon v. Wainwright, 372 US 335, 342-45, 83 S Ct 792, 9 L Ed 2d 799 (1963); State v. Sparklin, 296 Or 85, 94-95, 672 P2d 1182 (1983); State v. Erb, 256 Or App 416, 421, 300 P3d 270 (2013).

A defendant's right to counsel includes a "right to self-representation." Faretta v. California, 422 US 806, 819, 95 S Ct 2525, 45 L Ed 2d 562 (1975); State v. Blanchard, 236 Or App 472, 475, 236 P3d 845 (2010). This right can be exercised during the middle of a trial. State v. Hightower, 361 Or 412, 393 P3d 224 (2017). "That right, however, is not absolute." State v. Miller, 254 Or App 514, 523, 295 P3d 158 (2013). "When a defendant asks to represent himself, the court must determine, on the record, whether his decision is an intelligent and understanding one" and "whether granting the defendant's request would disrupt the judicial process." State v. Davis, 110 Or App 358, 360, 822 P2d 736 (1991); State v. Verna, 9 Or App 620, 627, 498 P2d 793 (1972). The court can consider the "overriding obligation to ensure the fairness and integrity of the trial and its inherent authority to conduct proceedings in an orderly and expeditious manner." Hightower, 361 Or at 417-18. Reasons for denying this motion must be on the record, but are reviewed for abuse of discretion. Hightower, 361 Or at 422. Mental illness can be a basis to deny a defendant the right of self-representation. State v. Hayne, 293 Or App 351, 427 P3d 201 (2018), rev den, 364 Or 294 (2019).

PRACTICE TIP

It is advisable to have an attorney remain on a case as advisory counsel with a difficult self-represented litigant. This allows the court to have an attorney available to step in if a self-represented litigant becomes disruptive or decides they would like representation mid-trial.

"A defendant may waive the right to be represented by counsel in a criminal proceeding, but the waiver 'must be voluntarily and intelligently made.'" Erb, 256 Or App at 421 (quoting State v. Meyrick, 313 Or 125, 132, 831 P2d 666 (1992)). Accord ORS 135.045(1)(c) ("the court shall determine whether the defendant has made a knowing and voluntary waiver of counsel").

"Courts . . . are reluctant to find that fundamental constitutional rights have been waived." Meyrick, 313 Or at 131. "Accordingly, a valid waiver will not be presumed from a silent record." Meyrick, 313 Or at 132; State v. Grenvik, 291 Or 99, 102, 628 P2d 1195 (1981), overruled on other grounds by State v. Probst, 339 Or 612, 626, 124 P3d 1237 (2005).

"A waiver is an intentional relinquishment or abandonment of a known right or privilege." Meyrick, 313 Or at 132; Church v. Gladden, 244 Or 308, 312-13, 417 P2d 993 (1966). "Whether there has been an intentional relinquishment or abandonment of a known right or privilege will depend on the particular circumstances of each case, including the defendant's age, education, experience, and mental capacity; the charge (whether complicated or simple); the possible defenses available; and other relevant factors." Meyrick, 313 Or at 132.

"Article I, section 11, does not require a catechism by the trial court . . . before the right to counsel may be validly waived by a defendant." Meyrick, 313 Or at 134. However, the record must establish not only that the defendant knows about the right to counsel but also that the defendant understands that right, meaning that the defendant must "'substantially appreciate[] the material risks of self-representation in his or her case.'" Erb, 256 Or App at 422 (quoting State v. Jackson, 172 Or App 414, 423, 19 P3d 925 (2001)).

"A defendant's conduct may serve as a valid waiver so long as the conduct adequately conveys the defendant's knowing and intentional choice to proceed in court without counsel." State v. Langley, 351 Or 652, 669, 273 P3d 901 (2012), cert den, 141 S Ct 138 (2020).

[T]hree prerequisites must be met to establish a waiver by conduct: (1) "engaging in repeated misconduct in the attorney-client relationship" that "defeats the ability of counsel to carry out the representation function"; (2) an "advance warning to the defendant that continuation of his or her abusive behavior would result in . . . being forced to proceed pro se"; and; (3) a reasonable opportunity for the defendant to "present his or her position on the facts in a manner that permits, if appropriate, the safeguarding of confidential communications and trial strategy from public disclosure."

State v. Clardy, 286 Or App 745, 760-61, 401 P3d 1188, modified on recons, 288 Or App 163, 406 P3d 219 (2017), rev den, 364 Or 680 (2019) (internal punctuation omitted) (quoting Langley, 351 Or at 669).

§ 20.5-2 Jury Trials

§ 20.5-2(a) Right to Jury Trial

A criminal defendant has a state constitutional right to a jury trial. Or Const, Art I, § 11. See ORS 136.001(1). In addition, the United States Supreme Court has held that the Sixth Amendment right to a jury trial is incorporated into the Fourteenth Amendment to the United States Constitution and consequently is binding in state criminal trials. Duncan v. Louisiana, 391 US 145, 149, 157-58, 88 S Ct 1444, 20 L Ed 2d 491 (1968).

The Oregon constitutional test is both broader and less well-defined than the federal test. The Oregon Supreme Court has held that the constitutional right to a jury trial extended to the prosecution of even a DUII treated as a traffic infraction, because the violation retained substantial penal characteristics. Brown v. Multnomah County District Court, 280 Or 95, 109-11, 570 P2d 52 (1977). The court analyzed five factors to determine whether the DUII infraction proceeding remained a criminal prosecution (with a consequent right to a jury trial) for purposes of Article I, section 11, of the Oregon Constitution: (1) the type of offense, (2) the penalty, (3) the collateral consequences, (4) the punitive significance, and (5) the pretrial practices used in enforcement, such as arrest and detention. Brown, 280 Or at 102-08. "The prescribed penalty is generally regarded as the single most important criterion, at least when it involves imprisonment." Brown, 280 Or at 103.

Although ORS 161.566(1) allows a prosecutor to treat most misdemeanors as violations, thus eliminating imprisonment as a potential penalty, such treatment does not necessarily mean that the defendant will lose the constitutional rights otherwise consequent to being charged with a crime. When "the accused already has been subjected to pretrial arrest and detention, [reduction of a charge from a misdemeanor to a violation] does not deprive the accused of the right to a jury trial." State v. Benoit, 354 Or 302, 317, 311 P3d 874 (2013) (court used the Brown test to determine that a protester who had been arrested and detained for several hours retained her jury-trial right, even though the prosecutor had reduced her charge of second-degree criminal trespass to a violation); see also State v. Whitten, 278 Or App 627, 379 P3d 707 (2016) (traffic violation proceeding was not a criminal prosecution thus defendant not entitled to constitutional protections).

In other cases involving the right to a jury trial, the Oregon Supreme Court has used a historical analysis rather than the Brown test. In State ex rel. Dwyer v. Dwyer, 299 Or 108, 112-15, 698 P2d 957 (1985), the court examined the history of criminal contempt proceedings and held that the right to a trial by jury did not apply in a criminal contempt proceeding for failure to pay child support. The court also used this historical approach in State ex rel. Juvenile Department of Klamath County v. Reynolds, 317 Or 560, 567-75, 857 P2d 842 (1993), in which the court held that the right to a jury trial does not extend to juvenile court delinquency proceedings. In State ex rel. Upham v. McElligott, 326 Or 547, 552, 555, 956 P2d 179 (1998), the court reaffirmed that in a juvenile delinquency proceeding, a juvenile has no constitutional right to a jury trial, and it held that a juvenile court has no discretion to empanel an advisory jury.

For further discussion of the right to a jury trial, see Oregon Constitutional Law chapter 6 (OSB Legal Pubs 2022).

§ 20.5-2(b) Number of Jurors

The parties are entitled to 12 jurors in a felony case, six in a misdemeanor case. ORS 136.210. In a felony case, the parties may stipulate to fewer than 12 jurors, ORS 136.210(1), but the defendant's consent to be tried on a felony charge by fewer than 12 jurors must appear on the record. State v. Lutz, 306 Or 499, 503, 760 P2d 249 (1988). If a juror is excused and is not replaced by an alternate juror after a felony trial has commenced, both parties must agree to continue with fewer than 12 jurors. See ORS 136.210; State v. McFerron, 52 Or App 325, 332-33, 628 P2d 440, rev den, 291 Or 368 (1981).

Jury verdicts must be unanimous. Ramos v. Louisiana, ___ US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020).

NOTE

Ramos is new case law at the time of writing. Look for additional cases on this subject based on the Ramos decision.

In light of State v. Ross, 367 Or 560, 481 P3d 1286 (2021) (unanimous jury required to convict, not acquit), the trial court erred by instructing the jurors that they had to be unanimous to return a not-guilty verdict. State v. Martineau, 317 Or App 590, 505 P3d 1094, rev den, 370 Or 197 (2022). That error was not "structural error." Martineau, 317 Or App at 592-93. Because the jury unanimously found the defendant guilty on all charges, the erroneous instruction was harmless. Martineau, 317 Or App at 592-94.

The United States Supreme Court has determined that a state may not provide for a jury consisting of fewer than six persons in a misdemeanor case, because doing so would substantially deprive an accused of the...