422 P.3d 276
Or. Ct. App.2018Background
- Defendant convicted of six counts of first-degree sexual abuse against his three step-daughters; convictions affirmed by jury including Count 1 concerning victim L.
- Count 1 alleged defendant rubbed his penis on L's vagina; at trial L testified instead that she was forced to grab his erect penis (uncharged conduct).
- Indictment noted L testified before the grand jury; defendant sought grand juror notes to explore whether L testified differently before the grand jury (consistent with the indictment).
- Trial court refused an in camera review of grand juror notes; defendant appealed claiming a Brady/Due Process right to disclosure of material impeachment evidence.
- Appellate court found defendant made the required threshold showing that the grand juror notes plausibly could contain material impeachment evidence (L may have testified inconsistently under oath) and remanded for an in camera review; if notes contain material impeachment evidence, defendant is entitled to a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by refusing in camera review of grand juror notes | State: defendant failed to show notes would contain material, favorable evidence; discrepancies are cumulative and not Brady-material | Defendant: notes likely show L testified to grand jury consistent with indictment, contradicting trial testimony; notes thus could provide material impeachment evidence | Court held defendant made threshold showing; trial court must conduct in camera review of grand juror notes for L |
| Standard required to compel in camera review of confidential material | State: argues defendant must show materiality beyond cumulative impeachment | Defendant: relies on Lammi two-step; must show notes plausibly contain material favorable evidence | Court applied Lammi two-step: threshold showing of plausible material evidence, then discretionary in camera review; here threshold met and discretion to decline was abused |
| Whether potential impeachment evidence was cumulative of impeachment used at trial | State: prior impeachment (police, social worker, recantations) made grand jury discrepancy cumulative | Defendant: impeachment that shows lying under oath is qualitatively different and potentially material | Court: discrepancy (trial vs. grand jury) could show L lied under oath — not merely cumulative — thus plausibly material |
| Proper remedy if in camera review reveals material impeachment evidence | State: (implied) no new trial if not material | Defendant: new trial if material evidence found | Court: remand for in camera review; if material impeachment found, new trial; if not, reinstate conviction |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecutor must disclose exculpatory or impeaching evidence material to guilt or punishment)
- United States v. Zolin, 491 U.S. 554 (1989) (factors for in camera review of allegedly privileged/confidential materials)
- State v. Lammi, 278 Or. App. 690 (2015) (threshold showing for in camera review)
- State v. Lammi, 281 Or. App. 96 (2016) (clarification of two-step Lammi process)
- State v. Bittner, 235 Or. App. 554 (2010) (defendant must plausibly show material favorable evidence exists before court will search confidential files)
- State v. Cockrell, 284 Or. App. 674 (2017) (limits on post-indictment examination of grand jury-related materials)