New & Noteworthy

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Recent Updates:

NCVLI, along with co-amici Aequitas and The Oregon Crime Victims Law Center, filed an amicus brief in the following case arguing that Oregon law does not require an impossibility test for witness unavailability or the exhaustion of all possible avenues of obtaining victim presence, including extreme measures such as those articulated by the court, to compel the victim’s presence at trial, and that imposing such requirements would result in harm to victims and their constitutionally protected interests.  

State v. Harris, --- P.3d ---, 2017 WL 4684024 (Or. Oct. 19, 2017). Defendant appealed his conviction for attempted misdemeanor assault, arguing that his right to confrontation under Article I, section 11 of the Oregon Constitution was violated when the trial court allowed the state to use hearsay evidence in the form of a 911 recording in lieu of the minor-victim’s live testimony.  The state had subpoenaed the minor-victim to testify, but learned the morning of trial that she was not going to appear.  The state tried contacting the minor-victim but could not reach her.  The trial court offered to continue the trial until the next morning to provide the state time to secure the witness, and the state agreed.  Defendant objected to the continuance.  The trial court then found that the witness was unavailable and that the 911 recording was reliable.  The trial court admitted the evidence, and defendant was convicted.  On appeal, defendant argued that the state did not make an adequate showing of witness unavailability.  Defendant argued that the state only satisfies this obligation after exhausting every reasonable means available of securing a witness.  The state argued that it only needed to show a reasonable, good-faith effort to secure the witness’s presence, and that serving a prospective witness with a valid subpoena satisfies that obligation.  The Oregon Supreme Court concluded that to establish unavailability for Article I, section 11 purposes, the state must show that “it was unable to produce a witness after exhausting reasonable means of doing so.”  The court noted that in most cases, this will require more than merely relying on a subpoena.  However, in the present case, because defendant objected to the continuance, he was found to have invited error and could not complain that the state failed to exhaust other means of securing the witness.  The court affirmed defendant’s conviction.  

In re Deborah Lynn Partida, 862 F.3d 909 (9th Cir. 2017). Chapter 13 bankruptcy debtor was ordered to pay $193,337 in restitution after she was convicted in 2002—upon a guilty plea—of one count of embezzlement and theft of labor union assets.  At the time she filed for bankruptcy, defendant-debtor reported owing $218,500 in unpaid restitution.  Defendant-debtor appealed the bankruptcy court’s denial of her motion to hold the government in contempt for attempting to collect the restitution, arguing that the government violated the Bankruptcy Code’s automatic stay.  After the Bankruptcy Appellate Panel affirmed, debtor sought further review.  The United States Court of Appeals for the Ninth Circuit rejected debtor’s argument, concluding that the Mandatory Victim Restitution Act (MVRA), 18 U.S.C. §3663A, allows the government to collect restitution despite the automatic stay.  In reaching its conclusion, the court observed that the MVRA’s enforcement provision states that the government “may enforce a judgment . . . in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law” and “[n]otwithstanding any other Federal Law.”  The court found that “the plain language of the MVRA makes clear that the government can collect restitution, despite any federal laws to the contrary.”  The court also examined the MVRA’s legislative history and found that its construction is consistent with the congressional intent for the MVRA with respect to the government’s collection powers. The court further observed that its conclusion is consistent with the decisions of the Second and Sixth Circuits.  For these reasons, the court affirmed the Bankruptcy Appellate Panel’s decision.

State v. Payan, No. 1 CA-CR-16-0683, 2017 WL 4127693 (Ariz. Ct. App. Sept. 19, 2017). Defendant appealed his convictions and sentences for resisting arrest and possession of marijuana on numerous grounds.  In relevant part, defendant argued that the superior court improperly found that the patrol officer qualified as a victim entitled to the protections afforded by Arizona’s Victims’ Bill of Rights.  Before trial, defendant sought a pretrial interview with the patrol officer.  The court found that the patrol officer qualified as a victim and had the right to refuse a pretrial interview.  The court explained that pursuant to Arizona’s Victims Bill of Rights, a “victim” is a person “against whom the criminal offense has been committed.”  The court further noted that a victim has the right to “refuse an interview, deposition, or other discovery request by the defendant.”  As charged in this case and set forth by statute, a person “commits resisting arrest by intentionally preventing or attempting to prevent a person reasonably known to him to be a peace officer, acting under color of such peace officer’s official authority, from effecting an arrest by [u]sing or threatening to use physical force against the peace office or another.”  Prior case law makes clear that resisting arrest is not a victimless crime—rather, it is a “crime committed against a person.”  Further, although there is case law suggesting that resisting arrest is “event-directed,” that case does not call into question the holding that resisting arrest is a crime committed against a person. Therefore, the superior court did not err by designating the patrol officer as a victim entitled to refuse pretrial interviews.  The conviction was affirmed.    

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