Chapter §6.2 CRIMINAL PROCEEDINGS

• 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 is part of the original state constitution framed in 1857. It 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 no 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).

In 1932 and 1934, 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); Davis, 350 Or at 462 n 9 (so stating, no citation); State v. Baker, 328 Or 355, 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), vacated on other grounds, 492 US 914, 109 S Ct 3235, 106 L Ed2d 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.").

§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." State v. Davis, 350 Or 440, 463-64, 256 P3d 1075 (2011). Deciding what is a criminal prosecution as opposed to some other type of proceeding (e.g., juvenile, violation, civil) has produced interesting case law. The seminal case on this subject is Brown v. Multnomah County Dist. Court, 280 Or 95, 570 P2d 52 (1977). Brown set out the following indicia to distinguish a civil from a criminal proceeding: (1) the type of offense; (2) the penalty; (3) the collateral consequences; (4) the punitive sanctions; 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, which are addressed in the subsections below.

§6.2-2(a) Juvenile Delinquency Proceedings

The Oregon Constitution's Article I, section 11, jury-trial right does not extend to juvenile adjudications. State ex rel. Juvenile Dept. of Klamath County v. Reynolds, 317 Or 560, 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 inexplicably, the Reynolds court then pivoted from that "historical context" analysis of Article I, section 11, and asked itself: "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 answered its question "yes." 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 v. Multnomah County Dist. Court, 280 Or 95, 570 P2d 52 (1977), was offense-specific and did not apply to Reynolds, 317 Or at 565 n 3.

NOTE: 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). The Oregon Court of Appeals has held that

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