§ 27.9 Trial Phase

LibraryCriminal Law in Oregon (OSBar) (2022 Ed.)
§ 27.9 TRIAL PHASE

In most respects, the trial phase (sometimes referred to as the guilt phase or the merits phase) of an aggravated-murder case resembles the trial of any other murder case.

NOTE

The partial defense of extreme emotional disturbance does not apply to aggravated murder. State v. Running, 336 Or 545, 562-63, 87 P3d 661, cert den, 543 US 1005 (2004); State v. Moore, 324 Or 396, 411-13, 927 P2d 1073 (1996).

As in other criminal prosecutions, a capital defendant does not have the right to participate as co-counsel. State v. McDonnell (McDonnell III), 313 Or 478, 494-96, 837 P2d 941 (1992); State v. Stevens (Stevens I), 311 Or 119, 124-25, 806 P2d 92 (1991). The trial court, however, may permit the defendant to participate during the trial, such as by asking questions during voir dire. See § 27.7-6 (the defendant's participation in the trial).

§ 27.9-1 Common Evidentiary Issues

§ 27.9-1(a) Photograph of Victim While Alive

A photograph of the victim while alive is admissible in the trial phase of any homicide case. ORS 41.415. The trial court does not have discretion to exclude a photograph of the victim. State v. Williams (Williams I), 313 Or 19, 27-28, 828 P2d 1006, cert den, 506 US 858 (1992); State v. Nefstad, 309 Or 523, 560, 789 P2d 1326 (1990).

COMMENT

Although the trial court lacks discretion under ORS 41.415 to exclude a photograph of the victim while alive, the trial court undoubtedly retains the discretion to decide whether a particular photograph is too prejudicial under OEC 403 (ORS 40.160) (exclusion of relevant evidence on grounds of prejudice, confusion, or delay).

§ 27.9-1(b) Admissibility of Former Testimony

The state frequently relies on the "former testimony" hearsay exception, OEC 804(3)(a) (ORS 40.465(3)(a)), in aggravated-murder trials. See State v. Pinnell (Pinnell I), 311 Or 98, 113-17, 806 P2d 110 (1991) (former testimony from bail hearing); State v. Douglas, 310 Or 438, 442-47, 800 P2d 288 (1990) (same); State v. Moen, 309 Or 45, 82-86, 786 P2d 111 (1990) (former testimony from preliminary hearing).

"The former testimony exception to the hearsay rule set forth in OEC 804(3)(a) may be invoked only when the declarant, the 'person who makes a statement' out of court, OEC 801(2), is 'unavailable as a witness' within the meaning of OEC 804(1)." Pinnell I, 311 Or at 114. Use of this exception requires that the opposing party "had an opportunity and similar motive to develop the [former] testimony by direct, cross, or redirect...

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