Chapter 010

 

      10.030

 

LAW REVIEW CITATIONS: 39 WLR 557 (2003)

 

      10.095

(formerly 17.250)

 

      See also annotations under ORS 17.250 in permanent edition.

 

In general

      Jury as judge of evidence

      Court control

      Conclusive evidence

 

Statutory jury instructions

      Admissions and accomplice testimony

      Proof, civil cases

      Proof, criminal cases

      Evidence evaluation

      Weaker and less satisfactory evidence

 

NOTES OF DECISIONS

 

In general

 

      Jury as judge of evidence

 

      Defendant is entitled to have theory of case presented to jury if there is evidence to support it. State v. Allison, 16 Or App 544, 519 P2d 393 (1974)

 

      Under facts of rear-end collision case, court did not err in submitting question of both plaintiff’s and defendant’s negligence to jury. Berg v. Mengore, 271 Or 530, 533 P2d 801 (1975)

 

      Court control

 

      Where there is substantial direct evidence of guilt it is not error to refuse to instruct on law of circumstantial evidence. State v. Johnson, 18 Or App 502, 525 P2d 1077 (1974)

 

      Refusal of trial court to give abstract instructions is not reversible error. Abel v. Cone, 268 Or 339, 520 P2d 899 (1974)

 

      Conclusive evidence

 

      When uncontradicted testimony of witness is clear and convincing and so plain and complete that disbelief of story could not reasonably arise in rational process of ordinarily intelligent mind, then question of credibility of witness may be withheld from jury and plaintiff nonsuited. Palmer v. Van Petten Lbr. Co., 265 Or 347, 509 P2d 420 (1973)

 

Statutory jury instructions

 

      Admissions and accomplice testimony

 

      Court did not err in adding to statutory instruction that credibility of accomplice was for jury to pass upon in same manner as with any other witness. State v. Partee, 32 Or App 117, 573 P2d 751 (1978), Sup Ct review denied

 

      Where statements by defendant could be construed as admissions, trial court erred by refusing to give requested cautionary instruction about admission by defendant. State v. Swee, 51 Or App 249, 624 P2d 1108 (1981)

 

      Failure to give requested and unopposed instruction was reversible error where tape recording of defendant’s statements played for jury was incomplete. State v. McKenna, 67 Or App 662, 679 P2d 346 (1984)

 

      Accomplice-witness instruction should be given only if testimony of accomplice implicates defendant. State v. Simson, 308 Or 102, 775 P2d 837 (1989)

 

      Accomplice-as-matter-of-law instruction should not be given unless defendant requests it. State v. Simson, 308 Or 102, 775 P2d 837 (1989)

 

      Where accomplice-witness-as-matter-of-law instruction benefits defendant, instruction does not amount to directed verdict that defendant is guilty. State v. Oatney, 335 Or 276, 66 P3d 475 (2003)

 

      Where no dispute exists that crime was committed, accomplice-witness-as-matter-of-law instruction does not amount to directed verdict that defendant is guilty. State v. Oatney, 335 Or 276, 66 P3d 475 (2003)

 

      Accomplice-witness instruction is proper if accomplice testimony implicates defendant, but not if testimony is exculpatory. State v. Rambert, 216 Or App 39, 171 P3d 398 (2007)

 

      Proof, civil cases

 

      Incorrect instruction that willful violation of Unlawful Trade Practices Act must be established by clear and convincing evidence was not harmless error. State ex rel Redden v. Discount Fabrics, 289 Or 375, 615 P2d 1034 (1980)

 

      Instruction that burden of proof was clear and convincing evidence for civil case alleging common law fraud was proper. Mutual of Enumclaw Ins. v. McBride, 295 Or 398, 667 P2d 494 (1983)

 

      Jury should be instructed that burden of proof for basic elements of common law deceit is clear and convincing evidence, but burden of proof for damages is preponderance. Riley Hill General Contractor v. Tandy Corp., 303 Or 390, 737 P2d 595 (1987)

 

      This section requires that jury be instructed to apply preponderance standard “on all proper occasions,” thus leaving some discretion for court to decide which cases are proper for such instruction and which are not. Riley Hill General Contractor v. Tandy Corp., 303 Or 390, 737 P2d 595 (1987)

 

      Deceit requires intermediate measure of proof between civil and criminal with each element of civil action for deceit proved by clear and convincing evidence, which means truth of facts asserted is highly probable. Riley Hill General Contractor v. Tandy Corp., 303 Or 390, 737 P2d 595 (1987)

 

      This section does not entitle defendant in sentencing proceeding to instruction that jury could consider unadjudicated criminal conduct of defendant only if jury found beyond reasonable doubt that defendant engaged in unadjudicated conduct. State v. Tucker, 315 Or 321, 845 P2d 904 (1993)

 

      Proof, criminal cases

 

      Instruction on, inter alia, burden of proof, where court told jury that defendant had no burden in criminal case, was not error. State v. Marling, 19 Or App 811, 529 P2d 957 (1974), Sup Ct review denied

 

      Instruction having effect of commenting on defendant’s failure to testify in own behalf was not reversible error where evidence of defendant’s guilt was overwhelming. State v. Philpott, 33 Or App 589, 577 P2d 96 (1978)

 

      Instruction that one element of crime could be presumed by establishing another element of crime was reversible error. State v. Rainey, 298 Or 459, 693 P2d 635 (1985)

 

      Trial court did not err by not defining reasonable doubt because instructions did not mislead jury to believe that it could convict defendant on lesser degree of proof. State v. Castrejon, 114 Or App 297, 834 P2d 528 (1992), aff’d 317 Or 202, 856 P2d 616 (1993)

 

      Evidence evaluation

 

      If jury finds expert evidence does not carry conviction over other evidence in case, jury may make factual determination based on other evidence. State v. Siens, 12 Or App 97, 504 P2d 1056 (1973), Sup Ct review denied

 

      Two factors to be considered in deciding whether jury should be permitted to draw inferences contrary to uncontradicted testimony are (1) availability of evidence to contradict witness’s statement and (2) likelihood that witness’s interest in litigation may tempt him to testify falsely. Palmer v. Van Petten Lbr. Co., 265 Or 347, 509 P2d 420 (1973)

 

      Inability of witness to physically identify defendant goes to weight of testimony, not competency. State v. Addicks, 28 Or App 663, 560 P2d 1095 (1977)

 

      Instruction having effect of commenting on defendant’s failure to testify in own behalf was not reversible error where evidence of defendant’s guilt was overwhelming. State v. Philpott, 33 Or App 589, 577 P2d 96 (1978)

 

      As factfinder in bar disciplinary proceeding, Supreme Court should use rule for evaluating evidence just as jury uses it in trying case. In re Holman, 297 Or 36, 682 P2d 243 (1984)

 

      Trial court may properly give witness-false-in-part instruction if physical evidence or any other type of evidence contradicts witness testimony to sufficient degree that jury could decide that at least one witness consciously testified falsely. State v. Roman, 288 Or App 441, 406 P3d 1119 (2017), Sup Ct review denied

 

      Weaker and less satisfactory evidence

 

      Principle contained in instruction applies to establishing injury in worker’s compensation claim. Roberts v. SAIF, 18 Or App 590, 526 P2d 445 (1974)

 

      Instruction having effect of commenting on defendant’s failure to testify in own behalf was not reversible error where evidence of defendant’s guilt was overwhelming. State v. Philpott, 33 Or App 589, 577 P2d 96 (1978)

 

      Instruction is proper where other evidence was reasonably available on fact in issue, and there is basis for jury to conclude other evidence is stronger and more satisfactory than evidence offered. Whaley v. Russell Stover Candies, Inc., 44 Or App 541, 606 P2d 667 (1980); State v. McDonnell, 313 Or 478, 837 P2d 941 (1992)

 

      In prosecution for theft, possibility that state could have by more diligent investigation obtained record from manufacturer of serial numbers of stolen property did not mean that such evidence was “within the power of the state to produce,” and, thus, instruction to effect that if state offers weaker and less satisfactory evidence when more satisfactory evidence is available, evidence should be viewed with suspicion was not justified. State v. Brock, 53 Or App 785, 633 P2d 805 (1981), aff’d 294 Or 15, 653 P2d 543 (1982)

 

      The “weaker and less satisfactory evidence” instruction should not be given in criminal cases whether or not defendant takes stand, except in those rare instances where because of an asserted defense defendant has the burden of proof on an issue in the case. State v. Mains, 295 Or 640, 669 P2d 1112 (1983)

 

      Failure to give requested instruction with regard to evidence presented by state was not error where record did not indicate that state had stronger evidence but failed to produce it. State v. Sellers, 76 Or App 552, 709 P2d 768 (1985), Sup Ct review denied; State v. McDonnell, 313 Or 478, 837 P2d 941 (1992)

 

COMPLETED CITATIONS: State v. Dixon, 5 Or App 113, 481 P2d 629 (1971), Sup Ct review denied, cert. denied, 403 US 928 (1971)

 

LAW REVIEW CITATIONS: 50 OLR 311, 313, 314 (1971); 7 WLJ 479 (1971)

 

      10.100

 

      See annotations under ORS 17.230 in permanent edition.

 

      10.215

 

NOTES OF DECISIONS

 

      Multnomah County’s procedures relating to selection of juries from master jury list complied with this section. State ex rel Schrunk v. Walker, 308 Or 398, 780 P2d 731 (1989)

 

      Limitation on use of source lists and jury lists does not prevent use by district attorney or criminal defendant for purpose of challenging jury panel under ORS 136.005. State ex rel Click v. Brownhill, 331 Or 500, 15 P3d 990 (2000)

 

ATTY. GEN. OPINIONS: Interaction of this section and Oregon Public Records Law, (1987) Vol 45, p 185