Legal Defense & Trial Strategy

One of the most common questions criminal defendants ask after a plea or conviction is straightforward:

If I plead guilty to a reckless crime, or a jury convicts me of one, does that automatically decide the outcome of any related civil lawsuit?

Under Oregon law, the answer is no. A criminal conviction can have significant civil consequences, but it does not automatically determine all issues in a later civil case. The scope of issue preclusion depends on what the criminal jury necessarily decided, the legal standards applied, and whether applying preclusion would be fair under Oregon law.

This article explains how issue preclusion operates when a criminal jury finds that a defendant acted recklessly under circumstances manifesting extreme indifference to the value of human life and how that finding affects later civil liability and defenses.

Issue Preclusion Under Oregon Law

Oregon applies a five element test for issue preclusion:

1. The issue in the two proceedings is identical.
2. The issue was actually litigated and essential to a final decision on the merits.
3. The party sought to be precluded had a full and fair opportunity to be heard.
4. The party was a party or in privity with a party to the prior proceeding.
5. The prior proceeding was the type to which courts will give preclusive effect.

Nelson v. Emerald People’s Utility District, 318 Or 99, 862 P2d 1293 (1993).

Even when those elements are satisfied, Oregon courts must still consider whether applying issue preclusion would be fair under all the circumstances. State Farm Fire & Casualty Co. v. Century Home Components, Inc., 275 Or 97, 550 P2d 1185 (1976).

Issue preclusion is therefore limited to issues that were actually litigated and necessarily decided in the prior criminal proceeding. It does not extend to issues that were outside the scope of the criminal case or decided under different legal standards.

What a Jury Decides Under UCrJI 1037A

Certain Oregon crimes require the jury to find that a defendant acted recklessly under circumstances manifesting extreme indifference to the value of human life. This instruction appears in UCrJI 1037A and applies to offenses such as second degree assault under ORS 163.175(1)(c).

Oregon appellate courts have repeatedly explained the meaning of this instruction:

Extreme indifference is not a separate mental state. Instead, it describes a heightened degree of blameworthiness beyond ordinary recklessness. It reflects conduct showing that the defendant cared little about the risk of death to another human being.

State v. Boone, 294 Or 630, 661 P2d 917 (1983).

State v. Belcher, 124 Or App 30, 860 P2d 903 (1993).

State v. Downing, 276 Or App 68, 366 P3d 1171 (2016).

More recently, the Oregon Supreme Court clarified that the extreme indifference determination requires consideration of all the circumstances surrounding the conduct, including circumstances before, during, and after the resulting injury or death.

State v. Giron-Cortez, 372 Or 729, 557 P3d 505 (2024).

A jury finding under UCrJI 1037A therefore establishes not only recklessness, but recklessness at a particularly high level of culpability.

Criminal Recklessness and Civil Wanton Conduct

The Oregon Supreme Court addressed the relationship between criminal recklessness and civil wanton conduct in State v. Gutierrez-Medina, 365 Or 79, 442 P3d 183 (2019).

Gutierrez-Medina arose under a criminal restitution statute, Oregon Revised Statutes (ORS) 137.106. In analyzing whether civil comparative fault concepts could reduce restitution, the court addressed the defendant’s premise about what would happen in a hypothetical civil case and then discussed how criminal culpability classifications relate to civil fault classifications.

The court explained that criminal recklessness requires actual awareness and conscious disregard of a substantial risk. Civil wanton conduct, by contrast, may be satisfied by constructive knowledge where a reasonable person would have realized the risk.

Because criminal recklessness requires actual awareness, the court held that a conviction for a reckless assault offense necessarily establishes a degree of culpability that is at least as great as civil wanton conduct.

The court further stated that comparative fault is unavailable where the defendant’s conduct reaches the wanton level, because contributory negligence was not a defense to wanton conduct at common law.

Holding Versus Dictum in Gutierrez-Medina

A lot of the heat in civil follow on cases comes from a basic question: which parts of Gutierrez-Medina are binding holdings, and which parts are explanatory discussion that arose because the court was analyzing a criminal restitution statute.

Gutierrez-Medina’s actual decision addressed restitution under ORS 137.106. The court’s extended discussion of how Oregon Revised Statutes (ORS) 31.600 might operate in a hypothetical civil case came up in that restitution analysis. That matters because issue preclusion and later civil litigation often turn on what a court had to decide to resolve the case before it.

Here is a concrete way to understand the distinction.

Hypothetical Example One

A defendant is convicted of a reckless assault offense and ordered to pay restitution under ORS 137.106. The defendant argues that the restitution amount should be reduced using the civil comparative fault statute, ORS 31.600. The court rejects that argument and, along the way, explains that even in a hypothetical civil case the comparative fault defense would be unavailable if the defendant’s culpability is at the wanton level.

In later civil litigation, a plaintiff cites that comparative fault discussion and argues that it automatically decides the civil comparative fault issue in every case following a reckless conviction. A defendant responds that the earlier discussion occurred in the restitution context and addressed a hypothetical civil premise rather than deciding an actual ORS 31.600 question in a civil negligence action.

Under Oregon’s issue preclusion framework, the later civil court still has to ask whether the identical issue was actually litigated and essential to the earlier final decision, and whether applying preclusion would be fair under all the circumstances. Nelson v. Emerald People’s Utility District, 318 Or 99, 862 P2d 1293 (1993). State Farm Fire & Casualty Co. v. Century Home Components, Inc., 275 Or 97, 550 P2d 1185 (1976).

Hypothetical Example Two

A civil negligence case is tried to verdict in which the court is required to decide, as a dispositive civil issue, whether ORS 31.600 comparative fault is unavailable when the defendant’s conduct is wanton. The court decides that civil question under civil standards because it must resolve the civil claim.

In that second scenario, the court’s comparative fault determination is not hypothetical and is not a byproduct of a different statutory analysis. It is part of the necessary reasoning to decide the civil case.

The practical point is not that Gutierrez-Medina is irrelevant. It is that criminal restitution context, hypothetical framing, and what was necessary to the decision can matter a lot when parties argue about what a criminal conviction does and does not conclusively establish in a later civil case.

What Is Conclusively Established in a Later Civil Case

When a criminal jury finds recklessness under circumstances manifesting extreme indifference to the value of human life, certain issues are conclusively established for civil purposes:

The defendant acted with actual awareness of a substantial risk.

The defendant’s conduct reached the level of wanton culpability.

Comparative fault defenses based on the injured party’s own negligence are foreclosed.

Oregon courts have long recognized that criminal convictions can have issue preclusive effect in later civil proceedings, including convictions following guilty pleas.

State Farm Fire & Casualty Co. v. Sallak, 140 Or App 89, 914 P2d 697 (1996).

In appropriate cases, criminal convictions have also been given preclusive effect as to liability and causation, depending on what was necessarily decided in the criminal case.

Berg on behalf of Estate of Higbee v. Benton, 297 Or App 323, 443 P3d 714 (2019).

What Is Not Automatically Precluded

A criminal conviction does not automatically resolve every issue in a later civil case. Issue preclusion applies only to issues actually litigated and essential to the criminal judgment.

Third Party Fault and Allocation of Responsibility

Oregon’s comparative fault statute, ORS 31.600, requires the trier of fact to consider the fault of third parties who were not parties to the civil action. Defendants may still argue that a third party’s conduct contributed to the plaintiff’s harm, so long as that issue was not litigated and decided in the criminal proceeding.

Civil Causation Arguments

Oregon applies a unified factual causation standard in both criminal and civil law, but the Supreme Court has cautioned that civil tort principles do not always fit neatly in the criminal context.

State v. Turnidge, 359 Or 364, 374 P3d 853 (2016).

As a result, a criminal jury’s causation finding does not necessarily resolve all civil causation theories, particularly where multiple actors or intervening events are alleged.

Civil Specific Issues Not Litigated Criminally

Criminal proceedings typically focus on the defendant’s conduct and mental state. They do not ordinarily litigate civil issues such as training compliance, escalation protocols, operational standards, or allocation of responsibility among multiple actors. Where those issues were not essential to the criminal judgment, issue preclusion does not automatically bar their litigation in a civil case.

Hypothetical Example: Assault Conviction Versus Civil Negligence in a Home Setting

Consider a hypothetical scenario that illustrates why Gutierrez-Medina’s discussion of comparative fault does not automatically resolve civil negligence issues in every case following a criminal conviction, particularly where the incident occurs in a private home and involves trained third parties.

Assume a defendant is convicted of assault after firing a weapon inside his own home. The criminal jury finds that the defendant acted recklessly under circumstances manifesting extreme indifference to the value of human life. That finding resolves the criminal question before the jury: whether the state proved beyond a reasonable doubt that the defendant committed the charged assault and that no justification defense applied.

Now assume the injured plaintiff later brings a civil negligence action arising out of the same incident. In the civil case, the plaintiff alleges that the defendant negligently caused his injuries. The defendant does not dispute the criminal conviction or the jury’s recklessness finding.

However, the civil case introduces additional facts that were not necessary to decide the criminal charge. For example, the plaintiff is a law enforcement officer or similarly trained professional who approached the defendant’s residence late at night. Evidence shows that the plaintiff failed to follow established training and safety protocols governing approach, identification, announcement, and escalation avoidance when engaging at a private residence. Evidence further shows that the plaintiff did not clearly identify himself, used tactics inconsistent with training, and initiated contact in a manner that foreseeably created fear, confusion, and a heightened risk of violent reaction by an occupant inside the home.

Those facts are materially different from the drunk-driving scenario underlying Gutierrez-Medina. In a drunk-driving case, the defendant affirmatively chooses to engage in dangerous conduct on a public roadway and creates the risk that results in injury to a randomly encountered victim. The defendant goes out into the world and finds the plaintiff. By contrast, in this home-entry scenario, the plaintiff comes to the defendant’s home and initiates the encounter. The risk that a homeowner may react impulsively or even recklessly to an unidentified or improperly conducted approach is not aberrational. It is precisely the risk that training, identification, and escalation-avoidance protocols are designed to prevent.

In that civil setting, even if the defendant’s conduct is deemed wanton such that the plaintiff’s own comparative negligence may not reduce damages, that does not end the analysis. Under Oregon Revised Statutes section 31.600, the jury may still be required to consider whether the fault of third parties, including supervisors, planners, or other participants, contributed to the plaintiff’s injuries and to allocate responsibility accordingly.

The criminal jury’s recklessness finding does not decide whether the plaintiff’s failure to follow training made the defendant’s reaction reasonably foreseeable, whether that failure was a substantial contributing cause of the injury, or whether intervening acts by trained professionals altered the chain of causation under civil negligence standards. Those issues were not actually litigated or essential to the criminal judgment and arise under a different legal framework focused on foreseeability, escalation, and allocation of responsibility.

This hypothetical demonstrates why applying Gutierrez-Medina’s comparative fault discussion wholesale to civil negligence cases involving home encounters and trained third parties risks unfairly collapsing distinct legal standards and foreclosing issues that were never decided in the criminal proceeding.

Fairness Limitations on Issue Preclusion

Even where the technical elements of issue preclusion are satisfied, Oregon courts retain discretion to deny preclusion where its application would be unfair. Factors include newly discovered evidence, differences in legal standards, and the limited scope of the prior proceeding.

State Farm Fire & Casualty Co. v. Century Home Components, Inc., 275 Or 97, 550 P2d 1185 (1976).

Practical Takeaways

A conviction or guilty plea to a reckless crime involving extreme indifference in Oregon has serious civil consequences, but it is not an automatic civil loss.

Such a conviction establishes wanton level culpability and forecloses comparative fault defenses based on the plaintiff’s negligence. It does not, however, automatically assign full civil liability, eliminate third party fault allocation, or resolve every causation or responsibility issue.

The scope of issue preclusion depends on what the criminal jury necessarily decided and whether applying preclusion would be fair under Oregon law.

Disclaimer

This article is provided for general educational and informational purposes only. It is not legal advice and should not be relied upon as such. Reading this article does not create an attorney client relationship. Legal rights and remedies depend on the specific facts, procedural posture, and applicable law of each case. Anyone facing a legal issue should seek independent legal advice from qualified counsel regarding their particular situation.

After a criminal jury returns a guilty verdict, defendants and their families often ask whether anything can be done before sentencing. Oregon law does permit certain post-verdict motions, but the availability of relief is narrow and the standards are strict.

This article explains when a motion for new trial may be filed before sentencing, why such motions often fail when based on evidence known during trial, and why post-conviction relief is frequently the proper procedural vehicle instead.

Motions for New Trial Are Authorized After Verdict and Before Sentencing

Under Oregon law, a criminal defendant may move for a new trial after a jury verdict but before sentencing and entry of judgment.

The governing statute is ORS 136.535, which incorporates Oregon Rule of Civil Procedure (ORCP) 64 into criminal proceedings, with the limitation that “a new trial shall not be granted on application of the state.”

The Oregon Supreme Court has described ORS 136.535 as the legislature’s “completed thought” regarding post-verdict motions in criminal cases, explaining that “the only post-verdict motions authorized by statute in criminal cases are motions for a new trial and motions in arrest of judgment.” State v. Metcalfe, 328 Or. 309 (1999).

Timing Rules: Filing Before Judgment Is Timely

ORS 136.535 provides that a motion for new trial “shall be filed within five days after the filing of the judgment sought to be set aside.” Oregon appellate courts have repeatedly held that this language establishes an outer time limit, not a requirement that judgment be entered before the motion may be filed.

In State v. Howard, 205 Or.App. 408 (2006), the Court of Appeals held that the statute “may be understood to place an outer limit of filing, that is, ‘no later than’ five days after the filing of the judgment,” and does not require motions to be filed after judgment entry.

This interpretation mirrors the civil rule. In Association of Unit Owners of Timbercrest Condominiums v. Warren, 242 Or.App. 425 (2011), the court reaffirmed that “a motion for new trial must be filed not later than 10 days after entry of the judgment and such a motion is timely notwithstanding that it is filed before entry of judgment.”

Accordingly, a motion for new trial filed between verdict and sentencing is not untimely as a matter of law.

Important Limitation: Jury Trials Only

Not all criminal trials allow for new trial motions. In State v. Keene, 317 Or.App. 19 (2022), the Court of Appeals held that new trial motions are available only in criminal jury trials, not bench trials, because ORS 136.535 incorporates ORCP 64 A, B, and D through G, but excludes ORCP 64 C, which governs bench trial new trial procedures.

Newly Discovered Evidence Under ORCP 64 B(4)

The most commonly asserted basis for a new trial is newly discovered evidence under ORCP 64 B(4), which permits relief only for:

“newly discovered evidence, material for the party making the application, which such party could not with reasonable diligence have discovered and produced at the trial.”

Oregon courts apply a strict six-factor test, articulated by the Oregon Supreme Court in State v. Arnold, 320 Or. 111 (1994). To prevail, the movant must show that the evidence:

1. Will probably change the result if a new trial is granted

2. Was discovered after trial

3. Could not have been discovered and produced at trial with reasonable diligence

4. Is material

5. Is not merely cumulative

6. Is not merely impeaching or contradictory

Failure to satisfy any one of these factors defeats the motion.

Newly discovered evidence claims are disfavored and “construed with great strictness.” State v. Fentress, 35 Or.App. 63 (1978).

Evidence Known to the Defendant or Counsel Is Not “Newly Discovered”

Oregon appellate courts draw a firm distinction between genuinely new evidence and overlooked evidence.

In State v. Cadigan, 212 Or.App. 686 (2007), the Court of Appeals held that evidence is “newly discovered” only when its existence is first known to the defendant or counsel. Evidence known to the defendant before trial, even if counsel did not appreciate its relevance, does not qualify.

The court explained:

“Whatever the materiality of the photographic evidence, the emerging nature of its relevance, or the diligence of defendant’s attorney, the evidence was simply not ‘newly discovered.’”

This principle was reinforced in State v. McCool, 221 Or.App. 56 (2008), where the defendant knew the identity and location of alibi witnesses before trial but counsel failed to present them. The court held that such failures may support a claim for post-conviction relief but do not support a newly discovered evidence motion.

By contrast, Oregon courts have granted new trials where the six-factor test is satisfied. For example, in State v. Acree, 205 Or.App. 328 (2006), the Court of Appeals granted a new trial based on newly discovered evidence that met all required elements. Similarly, in State v. Walker, 223 Or.App. 554 (2008), the court considered whether witnesses located after trial could satisfy the diligence requirement.

Most recently, State v. Dikeos, 330 Or.App. 698 (2024), applied the six-factor test to newly discovered physical evidence and reaffirmed the strict diligence and materiality requirements.

Tactical Decisions by Counsel and Post-Conviction Relief

When evidence was disclosed to trial counsel before or during trial but was not presented due to a strategic or tactical decision, Oregon law treats the issue as ineffective assistance of counsel, not newly discovered evidence.

Post-conviction relief is governed by ORS 138.530(1)(a), which provides relief when there has been “a substantial denial” of constitutional rights, including the right to effective assistance of counsel.

Under Oregon law, a petitioner must show that counsel failed to exercise reasonable professional skill and judgment and that the deficiency had “a tendency to affect the result of the prosecution.” Martinez v. Baldwin, 157 Or.App. 280 (1998).

The Court of Appeals clarified in Delgado-Juarez v. Cain, 307 Or.App. 83 (2020), that a tactical decision is not immune from review merely because it was intentional. The decision must result from “appropriate consideration of the risks and benefits.”

Ineffective assistance claims must generally be litigated through post-conviction relief rather than direct appeal. State v. Rhodes, 309 Or.App. 318 (2021).

Procedural Constraints on Post-Conviction Relief

Post-conviction relief is subject to statutory limitations:

• ORS 138.540 prohibits filing a post-conviction petition while direct appeal or new trial motions remain available

• ORS 138.510(3) imposes a two-year filing deadline, subject to limited exceptions

• ORS 138.580 sets detailed pleading and certification requirements

Because of these constraints, filing weak or procedurally flawed new trial motions can complicate or delay later relief.

Appellate Review Is Limited

Even when a new trial motion is denied, appellate review may be limited. In State v. Puckett, 332 Or.App. 64 (2024), the Court of Appeals emphasized jurisdictional and scope limits on appellate review of new trial denials.

Practical Takeaway

Oregon law permits a motion for new trial after verdict but before sentencing, but relief is rare. Evidence known to the defendant or disclosed to counsel during trial is not newly discovered, even if counsel failed to use it. Claims arising from counsel’s failure to investigate or present available evidence generally belong in post-conviction relief, not pre-sentencing litigation.

Final Note

This article is for general educational purposes only. It is not legal advice and reflects a high-level summary of Oregon law based on a limited review of existing authority. Every case depends on its specific facts, procedural posture, and record.

If you are facing sentencing after a trial conviction, consult qualified counsel to evaluate whether post-conviction relief or other remedies may be appropriate.

The element Oregon law calls a grave risk of causing public alarm

Oregon’s riot statute provides that a person commits riot if, while participating with five or more other persons, the person engages in tumultuous and violent conduct and thereby intentionally or recklessly creates a grave risk of causing public alarm. ORS 166.015.

The statute itself does not define the phrase public alarm. Oregon appellate courts have therefore supplied the governing meaning, and those decisions make clear that public alarm is a narrower concept than everyday annoyance, offense, or emotional discomfort. The cases consistently tie the element to fear arising from perceived physical danger and to conduct that threatens an imminent breach of the peace.

The foundational Oregon definition of public alarm

The leading interpretation of public alarm in the riot context comes from State v. Chakerian. The Oregon Court of Appeals explained that the term alarm refers to fear or terror resulting from a sudden sense of danger and does not reach conduct that causes mere psychic discomfort. The court further explained that public alarm is collective and communal, rather than individual and innately idiosyncratic. State v. Chakerian, 135 Or App 368 (1995).

On review, the Oregon Supreme Court agreed with that framing and emphasized that ORS 166.015 is directed at a harm, not at speech. The court stated that the statute is not directed at restraining expression, but rather at the creation of a grave risk of public alarm through specified conduct. State v. Chakerian, 325 Or 370 (1997).

The Supreme Court also addressed vagueness concerns and explained that the phrase grave risk of public alarm must be read together with the requirement that the conduct be tumultuous or violent. When read as a whole, the statute adequately informs citizens of the prohibited conduct. Giving the statute a fair reading in light of the common meanings of tumultuous, violent, and conduct, the court concluded that ORS 166.015 refers to physical activity that reasonably is perceived by others as threatening an imminent breach of the peace. State v. Chakerian, 325 Or 370 (1997).

How Oregon courts apply the public alarm element

Oregon appellate decisions applying the riot statute show that public alarm is not satisfied by mere attention, curiosity, or spectatorship.

In State v. Hicks, the Court of Appeals held that more is required to sustain a riot conviction than simply a showing that bystanders or spectators gathered around a fight. State v. Hicks, 120 Or App 345 (1993).

By contrast, in State ex rel. Juvenile Dept. of Washington County v. Saechao, the court found the element satisfied where an attack occurred in a crowded school hallway. The court emphasized that the conduct risked a greater melee, injury to noncombatants, and the natural alarm flowing from both risks. State ex rel. Juvenile Dept. of Washington County v. Saechao, 167 Or App 227 (2000).

These cases illustrate that the inquiry focuses on the risk created by the conduct itself, including the risk of escalation and harm to others, rather than on whether people merely noticed or gathered.

Jury instructions and common understanding

Oregon courts have also treated public alarm as a term that may be left to its commonly understood meaning at trial. In State v. Lewis, during jury deliberations the jury asked for a definition of public alarm. The trial court declined to provide an additional definition and instructed the jury to view the term as carrying its commonly understood meaning. The Court of Appeals affirmed. State v. Lewis, 335 Or App 685 (2024).

Guidance from analogous Oregon alarm cases

Oregon courts have construed the term alarm consistently across multiple criminal statutes, reinforcing a narrow understanding tied to fear of physical danger rather than annoyance or emotional distress.

In the harassment context, the Oregon Supreme Court held that alarm means more than mere inconvenience or feelings of anguish resulting from angry or imposing words. Instead, it means being placed in actual fear or terror resulting from a sudden sense of danger. State v. Moyle, 299 Or 691 (1985); ORS 166.065(1)(d).

In the intimidation context, the Court of Appeals has explained that the term alarm limits the statute to more than mere inconvenience or anguish and requires fear tied to serious physical injury. The statute reaches only unequivocal and unambiguous threats of such harm. State v. Smith, 319 Or App 388 (2022).

In the stalking protective order context, the Court of Appeals defined alarm as causing apprehension or fear resulting from the perception of danger, with danger referring to a threat of physical injury rather than a threat of annoyance or harassment. D O v. Richey, 301 Or App 18 (2019); Or Rev Stat §§ 163.730(1), 163.738.

These decisions reflect a consistent judicial understanding that alarm is grounded in fear of physical danger, not subjective offense or discomfort.

Constitutional limits on riot prosecutions

The constitutional backdrop reinforces these limits. In Chakerian, the Oregon Supreme Court made clear that ORS 166.015 is conduct based and not directed at speech. State v. Chakerian, 325 Or 370 (1997).

That conduct based focus distinguishes the riot statute from provisions struck down under Article I, section 8 of the Oregon Constitution. In State v. Spencer, the Oregon Supreme Court invalidated a disorderly conduct provision that criminalized the expression or speaking of certain kinds of language when done to cause public inconvenience, annoyance, or alarm. State v. Spencer, 289 Or 225 (1980); ORS 166.025(1)(c).

Riot prosecutions must therefore remain anchored to tumultuous and violent conduct that creates a grave risk of public alarm, rather than drifting into punishment of expressive activity.

Summary

Under Oregon law, public alarm in the riot statute is a collective and objective concept. It requires fear or terror arising from a perceived risk of physical danger and must be created by tumultuous and violent conduct that reasonably threatens an imminent breach of the peace. Mere annoyance, psychic discomfort, or the fact that people gather or observe is not enough.

Disclaimer

This article is provided for general educational and informational purposes only. It is not legal advice and should not be relied upon as such. Reading this article does not create an attorney-client relationship. Legal rights and remedies depend on the specific facts, procedural posture, and applicable law of each case. Anyone facing a legal issue should seek independent legal advice from qualified counsel regarding their particular situation.

Search warrants are one of the most powerful tools the government has. In Oregon, they are also tightly regulated by both the Oregon Constitution and statute. Probable cause is not a vague intuition or a rubber stamp. It is a defined legal standard, enforced by appellate courts, with specific limits that matter in real cases.

This article explains how probable cause works under Oregon law, how warrants can fail, how digital searches are treated differently, and how defendants can challenge defective warrants.

The constitutional and statutory definition of probable cause in Oregon

Under Article I, section 9 of the Oregon Constitution, no warrant may issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.

Oregon has also codified the definition of probable cause. ORS 131.005(11) provides that probable cause means there is a substantial objective basis for believing that more likely than not an offense has been committed and a person to be arrested has committed it.

For search warrants, the focus is not just whether a crime occurred, but whether evidence of that crime will probably be found in the place to be searched. The Oregon Supreme Court has explained that probable cause exists when the facts presented would lead a reasonable person to believe that seizable things will probably be found in the location to be searched. State v. Anspach, 298 Or 375 (1984).

Judges issuing warrants must make that determination based on the affidavit presented. ORS 133.555(2).

Probable cause fails when affidavits do not connect facts to places

Oregon courts have repeatedly rejected warrants where affidavits make assumptions instead of factual connections.

In State v. Gloster, the Court of Appeals reversed a conviction because the affidavit failed to establish probable cause that evidence would be found in a shed rented to the defendant, even though the main residence was linked to criminal activity. The affidavit did not connect the shed or the defendant to the alleged crimes. State v. Gloster, 145 Or App 555 (1997).

Similarly, courts have suppressed evidence where affidavits assert conclusions without factual support tying alleged conduct to the location searched.

When lawful conduct undermines probable cause

Probable cause is harder to establish when the observed facts are equally consistent with lawful conduct.

Oregon courts do not require officers to eliminate all possible lawful explanations before seeking a warrant. However, they have recognized that when innocent explanations are just as likely as criminal ones, probable cause becomes more difficult to establish.

In Miller v. Columbia County, the Court of Appeals explained that probable cause is harder to establish based on observations that are equally or more consistent with innocent circumstances. Miller v. Columbia County, 282 Or App 348 (2016).

This distinction matters in cases involving statutory exceptions or lawful activities that an affidavit ignores or assumes away.

Challenging warrants through motions to controvert

Oregon provides a specific statutory mechanism to challenge search warrants after issuance. ORS 133.693 allows a defendant to contest the good faith, accuracy, and truthfulness of the affiant.

To proceed, the defendant must file a supplementary motion supported by affidavit, setting forth a substantial basis for questioning the affiant’s good faith, accuracy, or truthfulness. ORS 133.693(2).

The burden of proof rests with the defendant, who must establish by a preponderance of the evidence that the evidence presented to the issuing judge was not offered in good faith, was not accurate, or was not truthful. ORS 133.693(3).

The Oregon Supreme Court has limited these challenges to the affiant’s statements themselves. A defendant may not litigate the underlying reliability of informants through a motion to controvert. State v. Hitt, 305 Or 458 (1988).

If inaccuracies are established, the court must reexamine the affidavit using only the accurate portions. Supplementary information may detract from, but may not add to, the affidavit’s sufficiency. State v. Morrison, 107 Or App 343 (1991).

Neutral and detached judicial review is required

Search warrants must be issued by a neutral and detached magistrate. Oregon courts apply this requirement by asking whether a neutral judicial officer reasonably could find that evidence of a crime would more likely than not be found at the location specified.

The Court of Appeals has emphasized that the inquiry focuses on the reasonableness of the magistrate’s determination based on the affidavit presented. State v. Gloster, 145 Or App 555 (1997).

Oregon has declined to expand this requirement beyond federal constitutional standards. The appearance of impropriety alone is not enough to invalidate a warrant. State v. Pierce, 263 Or App 515 (2014).

Digital device warrants require heightened particularity

Digital searches are treated differently under Oregon law.

In State v. Mansor, the Oregon Supreme Court held that warrants for digital devices must identify, as specifically as reasonably possible, the information to be searched for, including relevant time periods if available. State v. Mansor, 363 Or 185 (2018).

The court recognized that digital devices contain vast amounts of personal information, and that broad, general searches violate the particularity requirement of Article I, section 9.

Subsequent decisions have reinforced these limits. Warrants authorizing broad searches of photographs, videos, or application data without offense specific constraints have been invalidated. State v. Rose, 334 Or App 66 (2024).

When a warrant includes both lawful and unlawful search categories, suppression is not automatic. Courts must apply a minimal factual nexus test to determine which evidence must be excluded. State v. Turay, 371 Or 128 (2023).

Wildlife enforcement and lawful taking exceptions

Oregon law includes significant statutory exceptions that can affect probable cause in wildlife cases.

ORS 498.012 allows a person to take wildlife causing damage, posing a public nuisance, or creating a public health risk on land the person owns or lawfully occupies. Certain species, including bears and cougars, may be taken without a permit under specified conditions.

ORS 498.166 separately authorizes taking a cougar or bear that poses a threat to human safety, including attacking a pet or domestic animal, subject to immediate reporting requirements.

When affidavits ignore these statutory exceptions and assume illegality without analysis, the probable cause determination may be undermined.

Federal probable cause principles applied in Oregon

Federal cases influence Oregon analysis, particularly in emphasizing that probable cause deals with probabilities and the totality of the circumstances.

The United States Supreme Court has held that probable cause requires only a probability or substantial chance of criminal activity, not certainty. Illinois v. Gates, 462 U.S. 213 (1983). Maryland v. Pringle, 540 U.S. 366 (2003).

At the same time, courts recognize that where lawful explanations are just as plausible as criminal ones, probable cause may not exist.

Conclusion

In Oregon, probable cause is a defined, enforceable standard. It requires factual connections, respect for statutory exceptions, meaningful judicial review, and heightened specificity when digital devices are involved. Search warrants that rely on assumptions, boilerplate language, or broad digital authority are vulnerable to challenge.

Understanding these limits is essential for anyone facing a search warrant, litigating suppression issues, or evaluating the legality of a police search.

Disclaimer

This article is provided for general educational and informational purposes only. It is not legal advice and should not be relied upon as such. Reading this article does not create an attorney client relationship. Legal rights and remedies depend on the specific facts, procedural posture, and applicable law of each case. Anyone facing a legal issue should seek independent legal advice from qualified counsel regarding their particular situation.

There’s a lot at stake in an abuse or assault conviction. The consequences are asymmetric. If a prosecutor brings a bad case and loses, they might feel the sting of defeat, maybe take a reputational hit. But if the defense loses a false accusation case, the result can be catastrophic. Our client could go to prison. Lose their family. Carry a stigma they can never erase.

That’s why we take these cases so seriously. Because the lies of a false accusation don’t just hurt—they destroy.

In this blog, you’ll learn:
• Why false accusations don’t have to come from bad people
• How memory, coaching, and pressure distort what’s “true”
• Why defense attorneys treat every accusation as potentially flawed
• What jurors need to understand about the difference between belief and proof

Some jurors think false accusations are rare or that they only happen in tabloids or high-conflict divorces. But any defense attorney who handles abuse cases will tell you—they’re not rare. They’re constant. Some are calculated. Others come from emotion, confusion, outside pressure, or bad memory filling in the blanks. The reasons vary. The damage doesn’t.

It’s horrifying to imagine someone inventing these claims to gain leverage, power, or revenge—but it happens. And it doesn’t always come from a place of pure malice. Sometimes it’s fear. Or guilt. Or a need to explain something unexplainable. Sometimes it’s not the accuser who lies—it’s the adults around them, steering the story toward what they want to believe. These are the hardest cases. And they’re the ones that demand the most disciplined jurors.

The human brain isn’t a hard drive. It doesn’t store perfect files. It edits. It distorts. It fills in gaps, especially under stress. Add emotion, trauma, media, or law enforcement interviews to the mix, and things can feel real that never actually happened. The courtroom is full of people who believe they’re telling the truth. That doesn’t make them right.

Nowhere is this more dangerous than in sexual abuse cases. Just the accusation alone can ruin someone. The stigma is that powerful. Jurors often recoil the second they hear the charge. That instinct is human—but it can blind them. Because in these cases, we’re not saying “they sort of did it.” We’re saying they didn’t do it. At all. And that truth matters. But to even hear it, jurors have to do something emotionally difficult: they have to question a story that feels sacred.

The hardest part is accepting that liars and predators can exist in the same moral universe. That a person capable of lying about something so serious might look vulnerable, sound credible, even seem broken. And still be lying. That doesn’t mean we assume every accusation is false. It means we don’t assume anything. Because doubt is the foundation. If we deny that false accusations happen—or pretend they’re too rare to matter—we invite injustice into the room.

That’s why we fight. Not to protect abusers, but to protect the truth. And if we get it wrong—if the system convicts an innocent person because the accusation felt real—we lose more than a case.

The courtroom drama we see on TV really gets it all wrong.

TV shows give you lawyers delivering fiery monologues—pacing, pointing, pounding the table. But in real life, closing arguments don’t look like theater. And they aren’t jazz solos, either. A great closing is something rarer: a one-way conversation with twelve people who can’t speak back—but are thinking, questioning, pushing back in their own heads the entire time.

A good defense attorney doesn’t just perform. They listen—to silence. They watch body language. They anticipate doubts. They answer questions before they’re asked. That’s not improv. And it’s not a script. It’s a structured conversation, unfolding in real time, shaped by feel and precision.

It’s a lot like jazz.

In this blog, we’ll cover:

• • Why closing arguments function more like a conversation than a performance
• • How jurors’ silent reactions shape the rhythm and direction of closing arguments
• • The strategic value of timing, emotional pacing, and subtle framing
• • Why the best defense attorneys guide—rather than push—jurors to a verdict they believe in

The defense doesn’t get many chances to speak directly to jurors. Voir dire is one. Closing argument is the other. And in that moment, everything matters: tone, pace, story structure, emotional timing. Because by then, jurors have already lived the trial. They’ve seen the witnesses, felt the shifts, noticed the stumbles. The job now is to help them make sense of it—to assemble the puzzle with the pieces they already have.

So, you don’t tell them what to think. You show them how to think. You walk them through the questions already echoing in their heads. You hand them the structure. And if you’ve done it right—if you’ve respected their intelligence—they get to the right place without ever feeling pushed.

That’s the paradox of closing: it’s not about volume. It’s not about showmanship. It’s about rhythm, empathy, and trust.

You ask the questions they didn’t realize they needed to ask:

• • Why would the state leave that detail out?
• • Why did the witness pause right there?
• • Why didn’t that add up—unless there’s another explanation?

And then you offer the answers—carefully, strategically, never overplayed. You let jurors arrive at the conclusion you want, but they own.

In a real courtroom, no one wins by shouting. The best closings aren’t remembered for what was said—they’re remembered for what was made clear. When jurors walk back to deliberate, they carry not just your argument, but your structure. Your framing. Your questions. They start thinking like you—not because they were manipulated, but because they were respected.

That’s what makes a great closing argument. It’s not a solo. It’s a duet—with twelve silent partners. If you do it right, they’ll write the ending themselves. Two words. Quietly spoken. But unmistakably clear:

Not guilty.

Watch Advice for Beginner Lawyers on YouTube (1 min)

You’ve made it through law school. You’ve passed the bar. Now what?

If you’re just starting out in law, you’ve probably heard plenty about case law, legal strategy, and courtroom decorum. But here’s something that often gets overlooked: Your career won’t be built on knowledge alone—it will be built on relationships.

Return the Call

Let’s start with the simplest advice that too many lawyers ignore: Return your calls. Answer your messages. Reply to your emails. It might sound basic, but this is the number one complaint clients have about lawyers—not incompetence, not fees, but silence.

Every ignored call chips away at trust. Every delayed response sends a message, whether you mean it to or not. Clients don’t just want smart counsel—they want to feel seen, heard, and respected. If you can’t build that relationship with the person you represent, how can you expect to convince anyone else—opposing counsel, a judge, or a jury?

Communication Is Everything

Think of communication as your foundation. No matter how good your legal analysis is, it won’t matter if your clients feel abandoned. Being responsive isn’t just professional—it’s strategic. It builds trust. And that trust opens the door to better outcomes.

Use whatever tools you have—Cleo, text, phone, email—it doesn’t matter. Just do something. Don’t let the sun set on a message you haven’t returned. The longer you wait, the harder it is to rebuild that connection.

Respect Builds Influence

Law is a people business. Whether you’re negotiating a deal, counseling a client, or standing in front of a jury, your ability to relate to others determines your effectiveness. That starts with respect. Respect for your clients, your colleagues, your time, and theirs.

Respect isn’t about deference. It’s about showing people that you’re present, reliable, and serious about their concerns.

Bottom Line: Be There

Here’s the heart of the matter: Consistency and communication are what build legal careers. Not just wins in court. Not just GPA or clerkships. It’s how well you show up, listen, respond, and follow through.

Be the lawyer who calls back.
Be the lawyer who communicates clearly.
Be the lawyer people trust.

A trial starts long before opening statements—while jurors are still strangers, sitting in a box, not yet sworn in. And Voir dire is more than jury selection. It’s a search for bias, and a critical opportunity to lay the groundwork for how the jury will hear everything that follows.
When done right, we don’t just find the right jurors—we shape how they think.

In this blog, you’ll learn:
• Why voir dire is often the only chance to speak with jurors, not at them
• How skilled defense attorneys use questions to teach, not persuade
• Why early framing affects how jurors absorb evidence
• What kinds of hidden assumptions must be surfaced before trial even begins

Voir dire isn’t about picking likable jurors or ones who “seem fair.” It’s about surfacing the unconscious stuff—snap judgments, cultural assumptions, personal histories—that might quietly override everything else. That can’t be fixed in closing arguments. It has to happen before jurors even take the oath. Because once the evidence starts rolling, it’s too late to untangle how people think.

This is also the only time we can have a real conversation with jurors. In every other phase, we talk to them. In voir dire, we talk with them. That’s the window. We don’t use it to convince—we use it to prepare. To help them understand what “beyond a reasonable doubt” actually means. To challenge their instinct to assume guilt. To introduce the idea that real defendants are flawed, complex, human. Not caricatures.

Good voir dire isn’t just about who ends up on the panel. It’s about the mindset they carry once they’re seated. Jurors don’t walk in the door with perfect neutrality—that’s a myth. But if we ask the right questions, in the right way, we can clear enough space in their thinking to make a fair trial possible.

Every criminal trial is actually two trials. One unfolds in the courtroom—testimony, objections, legal arguments, and rulings. The other plays out silently, in the minds of jurors, attorneys, and even the judge. These two tracks rarely move in sync. And for defense attorneys, that split reality is where strategy lives or dies.

In this blog you’ll learn:

• Why every trial runs on two tracks: what happens in court and what happens in jurors’ minds
• How defense attorneys decide when to reveal key weaknesses in the prosecution’s case
• The difference between truth-seeking prosecutors and true believers—and why it matters
• Why strategic restraint can be more powerful than confrontation in securing a just verdict

On paper, the burden is clear: the state must prove its case beyond a reasonable doubt. But in reality, jurors walk in with bias. They see an arrest and assume guilt. They hear an accusation and feel outrage. They don’t naturally think like lawyers—they think like humans. So, the defense must navigate two challenges at once: countering the state’s story in the courtroom, and rewiring how jurors process it.

That’s why defense attorneys often hold back. They delay the reveal of fatal flaws in the prosecution’s case. It’s not misdirection. It’s respect for the process. A well-timed surprise in cross-examination can do more than a thousand words in opening argument. It can expose overconfidence, highlight contradictions, and jolt a juror out of assumption and into doubt.

But timing isn’t just about tactics. It’s about psychology. Because not all prosecutors are created equal. Some are truth-seekers—willing to confront new facts and reconsider their theories. Others are true believers. These DAs see the defense as an obstacle, not a partner in the search for justice. To them, every contradiction is a threat, every objection a challenge to their identity. That mindset drives weak cases to trial. And that’s where things unravel.

When the defense spots a gaping hole in the prosecution’s case, they face a choice: reveal it early and risk the other side patching it up, or wait and expose it when it matters most. The decision hinges on understanding who’s sitting across the aisle. Because the real drama of trial isn’t always on the record. It’s the unspoken chess match between two visions of justice—one grounded in humility and truth, the other in narrative and ego.

That’s why great defense work isn’t about theatrics. It’s about reading people. It’s about protecting jurors from their own instincts, dismantling bad logic, and guiding them back to the only standard that matters: proof beyond a reasonable doubt. In a system built on stories, the best defense is clarity.

As a trial lawyer specializing in criminal defense, false accusations, or high-stakes corporate litigation, one of your main goals at trial is to entertain the jury. There are no great hero journey stories that fail to entertain. If a story doesn’t entertain, it’s forgotten. It’s lost to the ages, never to be remembered. 

Whether you’re defending someone wrongly accused of serious crimes or fighting corporate battles in civil court, your trial should be talked about by jurors, cops, your client—and you—for years and years to come. The only way to achieve this lasting impact is through entertainment. 

Never miss the opportunity to make the jury laugh, be clever, or land the perfect comeback. Anyone who is good at clever comebacks is good at cross-examination, good at objections, and good at thinking quickly on their feet. Cleverness and quick wit are critical courtroom tools—that’s your storyteller muscle. 

From day one, especially in complex criminal defense cases involving false accusations or detailed corporate disputes with voluminous discovery, you should draft your cross-examination with entertainment in mind. To entertain, you must deliver content and information in a digestible, engaging way. Cross-examination is rapid-fire delivery of bite-sized fact packets—no overly complex questions unless needed for follow-up or dramatic effect. 

Impeachment typically follows a simple formula: Commit, Credit, Confront, then Stop: 

1. Commit

“You say X. Are you sure about X?” 

2. Credit

“You remember swearing to tell the truth at your deposition or when speaking to investigators when things were fresher in your mind?” 

3. Confront

“Do you remember me asking you such and such question, and your response was ‘not X’?” Then play the deposition or interview audio or show them the report. If they deny something you don’t have audio for, make a note to ask the impeachment witness.  

4. Stop

Stopping is usually the last step of cross-examination—don’t let the witness talk their way out of it. 

Unless…it’s clever and entertaining to point out their ridiculousness. Recognizing when to press further or let humor shine comes with experience. Always remember: If the jurors are entertained, they remember.

Chapters, Scenes, and the Rapid-Fire Flow State 

Cross-examination should be divided into clear chapters, each with distinct topic areas or scenes. You may have multiple impeachments within one chapter, but you never pause mid-scene. Pauses can happen between scenes, giving you time to reset and reload, but never during active cross-examination. 

Never fumble with documents. Jurors aren’t entertained by awkward pauses as you search for impeachment evidence. Everything must be locked and loaded, rapid-fire style—boom boom boom boom boom. After completing a chapter or scene, pause briefly to check your outline and reload. Trust your instincts and flow state if a strong opportunity arises outside your outline, but always circle back afterward to maintain your relentless attack. Avoid uncomfortable pauses at all costs—don’t become the incompetent lawyer, the bumbling, unintentional Columbo. 

The impeachment structure is always clear: commit them to their current claim, credit the prior inconsistent statement by emphasizing its importance—under oath, truthfulness, or freshness of memory—and then confront them. Commit, credit, confront, then stop. No surplus wording or extra details that allow wiggle room or confuse jurors. Keep it digestible and entertaining. 

Jurors are only entitled to get bored during your closing argument when they’ve already made up their minds, thinking you’re beating a dead horse because you’re already winning. Until then, maintain your pace and keep your chapters tight. Commit, credit, confront, stop. Entertain consistently. 

Whether you’re handling criminal defense for someone falsely accused, managing high-stakes corporate litigation involving millions, or navigating complex civil trials, keep your trial locked and loaded. Always give jurors a compelling, memorable story worth repeating for years and years to come.