Chapter § 6.2

• Jurisdiction: Oregon

§ 6.2 CRIMINAL PROCEEDINGS

Article I, section 11, of the Oregon Constitution protects jury-trial rights in criminal proceedings. In its current form, it provides:

In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor; provided, however, that any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing; provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise; provided further, that the existing laws and constitutional provisions relative to criminal prosecutions shall be continued and remain in effect as to all prosecutions for crimes committed before the taking effect of this amendment.

§ 6.2-1 History

Article I, section 11, of the Oregon Constitution was adopted verbatim from the Indiana Constitution of 1851. W.C. Palmer, The Sources of the Oregon Constitution, 5 Or L Rev 200, 201 (1926). There is little reported debate as to the meaning of Article I, section 11. Claudia Burton & Andrew Grade, Legislative History of the Oregon Constitution of 1857—Part I (Articles I & II), 37 Willamette L Rev 469, 518 (2001); State v. Davis, 350 Or 440, 464, 256 P3d 1075 (2011); see Charles Henry Carey ed., The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857 343 (1926); but see State v. Smyth, 286 Or 293, 297, 593 P2d 1166 (1979) (asserting, without citation, that parts of Article I, section 11, came from Massachusetts).

Article I, section 11, originally was introduced as Article I, section 13. Carey, The Oregon Constitution at 119-20.

In 1932 and 1934, the original Article I, section 11, was amended into its present form. State v. Harrell/Wilson, 353 Or 247, 255-60, 297 P3d 461 (2013) (1932 amendment); State v. Baker, 328 Or 355, 361, 976 P2d 1132 (1999) (right to waive a jury in noncapital cases adopted in 1932); State v. Wagner, 305 Or 115, 129, 752 P2d 1136 (1988), vac'd on other grounds, 492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989); State ex rel. Smith v. Sawyer, 263 Or 136, 138, 501 P2d 792 (1972) ("That portion of § 11 which authorizes ten members of a jury to render a verdict was added to § 11 by an amendment adopted in 1934.").

However, Oregon's unusual nonunanimous jury-conviction provision, adopted in the 1930s, violates the Sixth Amendment to the United States Constitution (applied to the states through the Fourteenth Amendment), and that provision is "fully—and rightly—relegated to the dustbin of history." Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 1410, 206 L Ed 2d 583 (2020) (Sotomayor, J., concurring). The "Sixth Amendment's right to a jury trial requires a unanimous verdict to support a conviction in federal court[;] it requires no less in state court." Ramos, 140 S Ct at 1397. Subsequent Oregon case law is developing rapidly post-Ramos. See § 6.2-5.

§ 6.2-2 Criminal Proceedings with Jury Rights

All Article I, section 11, rights arise in the course of "criminal prosecutions." Those rights may be invoked "only by one who is an 'accused,'" and they pertain to the "conduct of a criminal trial." Davis, 350 Or at 463-64. Deciding what is a criminal prosecution as opposed to some other type of proceeding (e.g., juvenile, violation, civil) starts with Brown v. Multnomah County District Court, 280 Or 95, 570 P2d 52 (1977). Brown set out five indicia to distinguish a civil from a criminal proceeding: (1) the type of offense; (2) the penalty; (3) the collateral consequences; (4) the punitive intent; and (5) the pretrial practices used in enforcement of criminal laws. Brown, 280 Or at 102-08.

The Oregon Supreme Court has added, on seemingly ad hoc bases, other elements, such as the framers' intent, as well as a historical exception and a changed-circumstances exception. The Oregon Supreme Court has noted that the Brown court

did not purport to derive those factors from the text or context of Article I, section 11, itself. Brown was decided before this court established its methodology for interpreting . . . constitutional provisions such as Article I, section 11, in Priest v. Pearce, 314 Ore. 411, 415-16, 840 P2d 65 (1992).

State v. Benoit, 354 Or 302, 308 n 6, 311 P3d 874 (2013).

For discussion of all these factors, see § 6.2-2(a) to § 6.2-2(g).

§ 6.2-2(a) Juvenile Delinquency and Restitution

"Juveniles have long been deprived of the right to trial by jury." Leonard W. Levy, Original Intent and the Framers' Constitution 338 (1988). The Oregon Constitution's Article I, section 11, jury-trial right does not extend to juvenile adjudications. State ex rel. Juvenile Department of Klamath County v. Reynolds, 317 Or 560, 575, 857 P2d 842 (1993). The court's first step in Reynolds was "determining whether, in 1859, when the Oregon constitutional guarantee of a jury trial 'in all criminal prosecutions' was adopted, a person in the child's position would have been entitled to a jury trial." Reynolds, 317 Or at 566. The original Deady Code contained no statutes regarding the age of juvenile offenders or such proceedings. Therefore, the Reynolds court assumed that the common-law rule applied: children were punished as adults in 1859. The court decided that, in 1859, children had been entitled to a jury trial in criminal cases. Reynolds, 317 Or at 566.

But the Reynolds court then pivoted from that "historical context" analysis of Article I, section 11, and asked: "Have circumstances so changed that today a child in a juvenile delinquency proceeding under [ORS chapter 419] is faced with a 'criminal prosecution,' as that term is used in Article I, section 11?" Reynolds, 317 Or at 567. The court found that the legislature had "so changed" the way that children are treated that it created "a proceeding that is sui generis." Reynolds, 317 Or at 575. Reynolds held that "the jurisdictional phase of a juvenile proceeding under [former] ORS 419.476(1)(a) is not a 'criminal prosecution' within the meaning of Article I, section 11." Reynolds, 317 Or at 575. The court also stated that the analysis used to determine what a criminal prosecution is, as set forth in Brown, 280 Or 95, was offense-specific and did not apply to Reynolds, 317 Or at 565 n 3.

ORCP 51 D, allowing for advisory and discretionary juries when no constitutional or statutory right to a jury exists, does not apply to juvenile delinquency proceedings under ORS 419C.400. State ex rel. Upham v. McElligott, 326 Or 547, 555, 956 P2d 179 (1998). A "restitution determination" under the juvenile code is penal, "not civil," and thus there is no right to a civil jury trial to determine restitution in such cases. State v. N.R.L., 354 Or 222, 234, 311 P3d 510 (2013). There is no civil jury-trial right in adult restitution proceedings, either. N.R.L., 354 Or at 226; State v. Hart, 299 Or 128, 139, 699 P2d 1113 (1985).

For additional information on juvenile delinquency in Oregon, see Juvenile Law: Delinquency (OSB Legal Pubs 2019).

§ 6.2-2(b) Petty Offenses, Infractions, and Violations

Truly petty offenses, infractions, and violations are not prosecuted as criminal proceedings. They do not have the traditional constitutional or statutory rights connected with criminal proceedings. They are not tried to juries and have a preponderance standard of proof and persuasion. ORS 153.076(1)-(2). Examples are traffic infractions punishable with fines but not imprisonment. ORS 153.008(1)(b); see State v. Walter, 36 Or App 303, 584 P2d 356 (1978).

The mere label of an illegal act as a violation does not make it one for constitutional purposes. Brown, 280 Or at 102-08, lists five factors to determine if a violation or its proceeding is so similar to a criminal proceeding that the jury-trial right applies. Those factors are (1) the type of offense (is there a mens rea?); (2) the penalty (jail?), (3) other consequences; (4) stigma; (5) pretrial arrest or jail. See State v. Fuller, 354 Or 295, 300-01, 311 P3d 861 (2013) (evaluating the Brown factors).

Two examples illustrate how Oregon courts apply the Brown factors. In State v. Whitten, 278 Or App 627, 632-38, 379 P3d 707 (2016), the court applied the Brown factors and concluded that the traffic violation of failure to obey a traffic-control police officer under ORS 811.535 does not warrant a right to a jury trial. That traffic offense was not a crime at common law, the statute has no mens rea and no jail potential, and the maximum fine was inconvenient but not severe. There were no collateral consequences identified, and failing to obey an officer's direction is not a stigmatizing crime like drunk driving. Although the state arrested, booked, and detained the defendant, it dismissed and recharged as a violation. Thus, under Whitten, prosecution for failing to obey a traffic-control police officer is not a criminal prosecution.

On the other hand, a city code prohibition against "[i]nterfering with a police officer" with a penalty of $500 or six months in jail, plus a culpable mens rea, shows intent by the city council to create a crime, not a violation. City of Portland v. Tuttle, 295 Or 524, 526, 531, 668 P2d 1197 (1983). Therefore, a defendant charged with violating such a code provision is entitled to a jury trial under Article I, section 11, and ORS 136.001(1). The Tuttle court, citing Brown, considered the city council's intent—rather than the effect of the law—to be the determining factor under Article I, section 11. Tuttle, 295 Or at...