OTLA Trial Lawyer Fall 2020

50 Trial Lawyer • Fall 2020 Between the Sheets Lisa T. Hunt Cody Hoesly Christine Moore By Cody Hoesly, OTLA Guardian By Lisa T. Hunt By Christine Moore, OTLA Guardian DECISIONS OF THE OREGON SUPREME COURT Uniform witness-false-in-part instruc- tion must be given when the evidence permits the jury to find that a witness lied as to a material issue. State v. Payne , 366 Or 588 (2020); Nakamoto, J. The defendant was repre- sented by Sara Werboff. During the defendant’s trial for third- degree sexual abuse, the complainant denied including a racial description of the defendant in her statement to police and accused defense counsel of trying to make her look racist. The author of the police report testified he had included the racial description in quotation marks because it was a direct quote from the complainant. Based on the difference between the officer’s testimony and the complainant’s testimony, the defendant requested the uniform witness-false-in- part jury instruction, UCrJI 1029 (which is similar to UCJI 10.04, and is based on ORS 10.095(3)). The trial court denied that request, and the jury found the de- fendant guilty. The Court of Appeals affirmed. The Supreme Court reversed. The court explained the witness-false-in-part instruction is not disfavored, but rather must be given when the evidence, viewed in the light most favorable to the party requesting the instruction, permits the jury to find that at least one witness consciously testified falsely as to a mate- rial issue. Where those circumstances exist, the trial court has no discretion to decline to give the instruction. The court held, in this case, the instruction should have been given, as the jury could find the complainant had a reason to lie and consciously testified falsely about the statement she had given to the police. The court also held this was reversible error even though the general instruc- tions informed jurors how to evaluate evidence generally, the witness-false-in- part instruction reiterates common sense, and the defendant was able to argue to the jury the complainant was lying. The court noted the instruction is statutory and serves an important advisory func- tion because it informs the jury of its duty to scrutinize a witness’s testimony, undercuts the presumption that sworn testimony is truthful and explicitly per- mits the jury to draw an inference that a witness who lied in one particular in- stance may have done so in others. Under the Family Abuse Prevention Act, for purposes of obtaining a protective order, the factor of “imminent danger