dismissing appeal when the defendant had not demonstrated likely prejudice resulting from victim’s sexual history being first reviewed in camera.
How later courts described this case
- dismissing appeal when the defendant had not demonstrated likely prejudice resulting from victim’s sexual history being first reviewed in camera.
- "The Osborne court did not require the defendant to demonstrate actual prejudice. Rather, the court found that once the defendant showed his constitutional right to a public trial had been violated, actual injury would be conclusively presumed."
- review dismissed where Oregon’s Rape Shield Law had been amended after trial, and this court was not aware of the amendment when the petition for review was allowed and oral argument was heard
- commenting on, but not interpreting, phrase “in chambers”
Written by the judges who cited it.
The opinion
LENT, J.,
dissenting.
I dissent from the action of the court in dismissing this case. I express no opinion on the merits.
*490 The majority dismisses this proceeding because it finds that the shield law has been changed and there is therefore no need for this court, as a review court, to consider whether the former statute is unconstitutional. The majority takes the position that the change is so great that a decision by this court on the language of the former statute would not control with respect to the new language. I simply disagree.
The old language required that the hearing be held “out of the presence of the jury and the public.” The new language requires the hearing to be held “in chambers” and that language is found in Rule 412 of the new Oregon Evidence Code. The new code is accompanied by an “official” commentary prepared for and approved by the House Judiciary Committee and the Senate Justice Committee of the 1981 Legislative Assembly. There is nothing in that commentary to indicate that the legislative body thought it was changing the law with respect to excluding the public from the hearing. The commentary explicitly advises us that the hearing in chambers means a hearing “in camera. ” West Publishing Company’s Revised Fourth Edition of Black’s Law Dictionary says that “in camera” means:
“In chambers; in private. A cause is said to be heard in camera either when the hearing is had before the judge in his private room or when all spectators are excluded from the courtroom.”
It is seen that neither by the language of the rule nor by the official explanation is there any indication that the legislature meant to change the law so as to rid it of any possible conflict with Or Const, Art I, §§ 10 and 11. The new language presents neither more nor less possible conflict with the constitutional prohibition against secret courts and constitutional requirements that justice be administered openly and that an accused be afforded a public trial.
I believe we should not terminate consideration of the important issues raised on this review, issues upon which the Court of Appeals divided, but should resolve those issues now in the case at hand.
I would add one final thought. The majority finds that the change in language makes this an inappropriate case for our consideration of the constitutional challenge to *491 the kind of hearing specified by the law. Nevertheless, the majority then touches upon the merits by stating that it does not appear likely that this defendant has been prejudiced by reason of exclusion of the public and the holding of a secret court and further states that the defendant is not able to point to any evidence that would have been introduced had the hearing been public. Of course, the defendant contended that one of the purposes of making a trial open to the public and prohibiting secrecy is to allow for the fact that persons who may have knowledge of relevant evidence will learn of the controversy and come forward. In any given case that might benefit either the prosecution or the defense. Certainly, a party to litigation cannot demonstrate that such evidence exists if it is undiscovered because the potential witness who possessed it had no reason to learn of its need. I do not think it fitting for the majority to publish its last paragraph concerning what appears to be matter going to the merits while at the same time refusing to consider the constitutional challenge. If the matters which the majority discusses in its last paragraph are sufficient to dispose of this case, the conviction should be affirmed on that basis and not by dismissing the proceeding.
Tanzer and Campbell, JJ., join in this opinion.