concluding that ORS 41.415 “directs the trial court to admit such photographs in a prosecution for a criminal homicide if the district attorney offers them to show the general appearance and condition of the victims while alive. The statute, in effect, declares the photographs to be relevant and not subject to balancing under OEC 403.”
How later courts described this case
- concluding that ORS 41.415 “directs the trial court to admit such photographs in a prosecution for a criminal homicide if the district attorney offers them to show the general appearance and condition of the victims while alive. The statute, in effect, declares the photographs to be relevant and not subject to balancing under OEC 403.”
- explaining that it was erroneous to describe beyond a reasonable doubt using the phrase “moral certainty” because, among other things, that phrase “ ‘may convey the idea to the jury that absolute certainty is required’ ” (quoting J.P. McBaine, Burden of Proof: Degrees of Belief, 32 Cal L Rev 242, 258 n 35 (1944))
- stating that "[e]vidence that goes to the question of [a] defendant's future probable violent behavior is relevant [to] * * * the issue of future dangerousness"
- giving an instruction containing a confusing phrase might be reversible error if it left the jury without guidance about the proper standard to apply
Written by the judges who cited it.
The opinion
PETERSON, J.,
dissenting.
I join in the dissent of Unis, J., with this exception. The instruction violated defendant’s rights under ORS 10.095(6) and ORS 136.415. It is unnecessary to go further, insofar as state law is concerned. I would not reach the Article I, section 33, question or the federal question.