*1 Argued September and submitted reversed and February 10, remanded new for OREGON, STATE OF Review, Respondent on AVIS DOUGLAS, FRANCIS
Petitioner on Review. (CA 18550, 27810) SC
Rudolph him on the Salem, respondent. With cause argued Attorney Frohnmayer, General, John R. David B. were brief Gary, F. General, and William McCulloch, Jr., Solicitor Deputy General, Salem. Solicitor
TANZER, J. concurring opinion. specially
Lent, J., filed a
518 *2 TANZER, J.
Defendant appeals her conviction of theft. She assigns as error a trial court order precluding her own testimony of alibi due to her noncompliance with statutory requirements for such evidence. The Appeals Court of upheld the trial court ruling, citing Wardius, State v. 6 Or App (1971), 487 P2d rev den part rev’d in L37 Ed 2d 82 accepted We petition for review which she contended that the sanc- impermissible tion was under the Oregon and the federal find, however, constitutions. We the statute is dis- positive.
I. Proceedings District Court charge upon theft was based evidence that defendant obtained a gasoline tank of away and drove paying without for it. The intended defense was alibi. trial, Immediately prior prosecutor moved to exclude all evidence of alibi because defendant had failed to file and serve notice of intent an alibi defense as required represented under ORS 135.455. Defense counsel prepared that she had in proper form and caused it *3 to be Although prosecutor it, delivered. the never received he that accepted representation. notice is not in the but, counsel, record because the of statements of we accept fact that in proper as a notice form was delivered the attorney required district by the statute. The notice the indicated that defendant and one other witness would testify that defendant was at place employment at the person time crime. Defense counsel that the stated listed on notice was not witness after all and did she call person. not intend to that She then stated that there support was another whom she to call witness intended the same alibi.
The trial court ordered that the defendant could not call its intended witness. Defense counsel acceded to the correctness of that ruling and it is not in issue. The trial court also ordered that precluded defendant was from testifying as to her ruling, alibi. Under she testified that she did not commit the crime and not was place crime, but she was not allowed to affirmatively that she was elsewhere. Defendant testified that order order and it is limits the court’s within the appeal. issue in this which preclusion ORS Application II. 135.455 will not reach constitu- elementary we It be decided on to decide a case which can tional issues the control- we first examine statutory Therefore grounds. 135.455, provides: statute, ORS which ling proposes “(1) a criminal action If the defendant evidence, shall, not than rely any way he less alibi cause, upon days file and serve five before the trial purpose attorney of his to offer the district a written notice evidence, specifically place which notice shall state such places to have been at the where the defendant claims or together alleged with the name time or times of the offense upon witness or business address each and residence If rely for evidence. intends to alibi whom the defendant notice, file such he shall the defendant fails to and serve introduce evidence at trial of not be alibi good unless cause orders otherwise. the cause the court “(2) means As used in this section ‘alibi evidence’ was, in a criminal action evidence that offense, place at a alleged time of commission of the other place such offense was committed.” than the where was respect arguably deficient it failed * “* * * * * state and residence or name upon address of each the defendant
business witness whom rely for intends to alibi evidence.” impose a defendant upon ORS 135.455 does not general obligation alibi evidence who intends offer alibi. as to the truth of the disclose to the state all evidence identify persons those requires only that the defendant It other at trial. If upon rely whom she intends as witnesses rely exist, intend to the defendant does witnesses but statutory duty them, is under no upon identity or location. state of their inform the *4 having for trial case, appeared defendant to her witness herself and another identifying given notice belatedly person. She call the other She did not alibi. witness, but call an unlisted desire to expressed her Thus, two so. the other her to do did not allow court The situation boils are immaterial. witnesses potential with ORS 135.455 complied defendant down to this: rely on her own testi- that she intended to giving it. There was no giving from mony, but she was barred precluding imposition of sanction statutory basis for alibi for regarding her own giving Therefore, the sanction was given had notice. which she and the case must be reversed erroneously imposed the sanction.1 for a new trial absent remanded for a new trial. Reversed and remanded LENT, J., specially concurring. disagree
Because I with the majority’s holding that comply 135.455, defendant did with ORS I am unable to join majority’s opinion. provides: ORS 135.455
“(1) proposes If the defendant a criminal action rely any way evidence, shall, he on alibi less than cause, days upon five before the trial of the file and serve attorney purpose the district a written notice of his to offer evidence, place such which notice shall state places or where the defendant claims to have been at the alleged together time or times of the offense with the name upon and residence or business address of each witness rely If whom the defendant intends to for alibi evidence. notice, fails to file and serve such he shall not be to introduce alibi evidence at the trial of good the cause unless the court for cause orders otherwise. “(2) in this As used section ‘alibi evidence’ means was, evidence that the defendant in a criminal action at the offense, place alleged time at a other of commission of place than the where such offense was committed.” important particulars comply failed in Defendant two (1) any never filed notice of with the statute: She written evidence, and the con- purpose majority to offer alibi (2) did not. From what record we have as to cedes she prosecutor the contents of the notice which the offered to opinion a learned which concludes Justice Lent concurs on the basis of testimony. may impose a defendant’s never a sanction of restriction of the court case, statutory we do not reach the constitutional of our resolution of Because necessary adopt the rule we find it absolute issues which he examines. Nor do Noble, proposes. L Ed United States which he Cf. 2d 141 *5 office, the failed to “state on his notice stipulate was served to at claimed have been place the where” she the majority of commission of theft. The the time the prosecutor the knew that she correctly points out that claim, work, is there she was at but nowhere would that prosecutor was in record to show that the anything the her of place to the name or location of work. advised as information prosecutor very The claimed that it was that of necessary investigation which was to afford basis prosecutor’s her alibi. I the words:1 quote defense of pre-trial colloquy concerning prosecutor’s quotation motion from a the The is portions prevent offering the of defendant from evidence of alibi. Relevant colloquy follow: Any preliminary matters? “THE COURT: Yes, Honor, in for motion the State moves limine “THE STATE: Your case, in the Court exclude at this time to limit evidence this that trial, during any voir dire and and all evidence at also mention evidence opening argument, of alibi defense. There’s been statement or of the nature an yesterday, July this on which was between an oral communication attorney Bailey and Mr. of our and Miss Cresswell counsel] [defendant’s interpose that this was not the that will the office to defense effect defendant comply the she at has with that was work. defendant failed no appropriate ORS There has been statute this case which is 135.455. Attorney purpose filing serving upon the a written notice of or District of specific of where the offer alibi There has been no statement an evidence. alleged no have time of Further defendant claims to been the the offense. upon rely. For of witnesses whom defendant intends indication comply failure must, requirements I and with that statute the court should the any law, appropriate all evidence and believe under the case exclude from Pennington, App rely 28 Or an alibi on State mention such and defense * * *. a 1977 case ‡ << if! * * * * properly in that refused to admit The trial court case “THE STATE: affirmed the the trial court was alibi and that decision of evidence that compliance, apparently Appeals. no this has been no Court case there appropriate attempted compliance with the statute. whatsoever Miss “THE COURT: Cresswell? Honor, filed the notice was Your alibi defense “DEFENSE COUNSEL: my thought it Attorney’s I left with I it was filed.
with District office. the secretary what it filed and I don’t know to be filed and I was told that was filed, thought Unfortunately I was happened or that the one that was to it. — any regard we filed, give with witness that was not did not information * ** statute, wrong I that believe the It was the witness. do intend to call. give however, permit she was evidence as to where herself to will defendant any day other than us to call witness and the statute forbids on that It might in advance. to tell the State about who have been able defendant we going give her version of what to let defendant does not forbid us require day. that we otherwise would that To read statute certainly is intended and that not defendant whether or notice of required notice anything or our laws. The under Constitution not that’s our anyway gave whether not arrived availed and or not have that we would — Attorney’s require District office I’m not sure. At we this time we request only chooses, that defendant be allowed to if she so we doing don’t feel though given the statute forbids us that even we’ve not possibility. of that interpretation I “THE don’t believe that’s the STATE: correct of that * ** very statute. I that the clear indicates the believe statute’s provide person, defendant, has to notice of where that this case female, provide regardless have been and has to those details claims to secrecy infringes called whether or not that her so as to whether or allow, simply statute, testify. following she’ll She has to that allow the State claims, opportunity investigate apparently as some her claim. she is the If says case in this oral communication and the notes in indicate that she file requirement provide she was at work. she us information investigate provide where that the State can that and so its own any witnesses. But don’t think that contravenes lay surprise somebody in the witness to weeds trial and it [sic] *6 very lay testify no means The allows back herself. statute’s [sic] any testimony testimony it clear controls the of the defendant as well as the other witnesses. <( * * * * * * * by “THE It me STATE: seems to that her own admission the notice defective, comply trying itself it was failed to with the I’m statute. So not be a stickler whether about or not that was served our office. We have problems getting I know of was stipulate documents files and that served within if days represent she can that to the court I’d to it. I’m
five before trying particular fight not defective, that issue. I do think that a notice was if however, my granted motion in limine should be nonetheless. a * * * right. feeling All “THE COURT: It’s the court’s that it is the nature of statute, discovery quite closely allied as a matter That of fact. the constitu- testify abridged by tional to remain silent or an election to are not this they’re saying you testify depend you upon statute. What defense, if do is that given by notice must be of it. Whether it is witness or whether it be by election, require requires the defendant. It doesn’t an a notice that the may testimony defendant he choose to and if or she that that does can alibi, any way well I include but don’t think there’s commitment one or the any other or limitation on the to remain silent at the or to choice give might say It defendant. does as to what she notice he or if the testify. power election is made to I feel that is within that the constitutional discovery that is the to demand in the nature of an affirmative defense being purposes discovery and of called witnesses for the that underlie the equally applicable statutes which are to 135.455. It would therefore be the ruling precluded offering of the court that will be testi- from mony relating having give properly alibi notice and in defense of failed ” view, my least, being abrogation rights. (Emphasis not an constitutional added.) that, contrary suggestion, I would to the trial court’s alibi is not an observe 161.055(2). by defined The state has the burden of
affirmative defense as disproving ORS defense; proving not have a burden of it. this does Cf. statute, Yielding, antedating State v. 238 Or 395 P2d case Jury Instructions Uniform 405.01. claims, apparently case this oral “If she is the the notes in the file indicate that she communication and requirement provide says she was work. The she where as to that is so that the State can us the information provide (Emphasis investigate witnesses.” that and its own added) agree
majority with the that we do not reach
dispose when we can of a case on issues
statutory permit grounds, disposi- not but record does
Accordingly, case. we reach tion on basis should
with and deal error. one of defendant’s claims of constitutional
preclusion proper defen- of a issue whether
statutorily for failure to own alibi dant’s
permissible required alibi is a sanction notice of an defense “right light heard himself’ of defendant’s be in guaranteed
Oregon I, section 11 of the Constitu- Article
constitutionally be that sanction to tion. I would hold impermissible. petitioner court, con-
Defendant, our before
challenges second-degree charge theft. She on a victed
testifying ruling concern- court which barred her ing she defense. trial court ruled that an asserted alibi had could not this alibi defense because she provisions complied with of ORS 135.455. Appeals petitioner court, and this Court imposed preclusion under ORS sanction attacked *7 arguments based on constitutions 135.455 with several Oregon. I, I find that Article and of of the United States (hereinafter Oregon 11, Section Constitution section pertinent part: 11) provides 11 resolves this case. Section prosecutions, have the accused shall “In all criminal * * * * * by Though draw on I to be heard himself
pro- areas of constitutional criminal materials from other cedure,
question decision to the whether I confine this
preclusion with under consistent sanction ORS 135.455
provision our state constitution. any question
Thus, do address not
applied validity preclusion sanction when
524 defendant;2
witnesses other than the I do not address the question requirement the alibi notice as a possible vio- Oregon lation of the right against constitutional self- incrimination;3 and I possible do not address the conflict between ORS 135.455 and the compulsory process and provisions confrontation of either the United States Con- stitution or the Oregon Constitution.4
I. THE FACTS prosecution’s witnesses testified that on the night of November a woman attempted pay for a gas Fastway tank of at a gas County station in Clackamas writing check. Gas station attendants told her that they check, accept could not but that she could leave if get cash she left her driver’s license with them. The woman gave left, attendants an identification card never pay but returned to for the gas. The identification card was the defendant’s and photograph, bore her and at gas station attendants identified the defendant as the woman who them gave the card.
Defendant
intended to
assert
defense of alibi and
to testify by way of alibi that she was at
on the night
work
8,
of November
and to offer a
corroborating
co-worker as a
witness.5
permitted
present
She was not
this alibi
authority
point
2 I note that
on this
is divided. Some courts hold
no
rights
preclusion
State
infringed
v.
are
of alibi witnesses.
Smith,
Dodd,
541,
(1975);
State v.
88 N Mex
proceedings, pre-trial state because defense
preclude the defen all alibi witnesses and bar moved
alleged any testimony giving as to her alibi. The dant
prosecution file the defendant had failed to contended that
present an alibi defense as and serve a notice intent
represented required under ORS 135.455. Defense counsel
a raise trial that she had left notice of intent to to the the defense of alibi with her court secretary and believed it had attorney, although willing prosecuting sent. The been
accept representation counsel’s that the notice alibi defense
properly served, that the notice was defective was insisted
corroborating gave wrong name for the because
identify place not her of work. See footnote witness and did
attorney supra, accompanying prosecuting 1, text. The
argued defect, the defendant was that because of this
precluded by presenting an alibi ORS 135.455 from defense.
attorney prosecuting claim did that
prejudiced defective the state or affected its trial
clearly preparation. The record that the state was shows
aware of the intent to raise an After defendant’s alibi.
portions discussion, relevant of which I set forth footnote supra, prosecution’s 1, the trial court allowed the motion.
ruling effect of was that the court’s
permitted that was to take stand woman left the she was not the who identification card gas station, hers, that the identification card was
had before theft and she she had had female lost it several months including sister, time, at the her
roommates striking physical bore a resemblance to her. Defendant who was denied the
opportunity explain jury to the where she doing, night, her was that what she or otherwise detail was
activities. witness, proposed corroborating
name the
and conceded that
witness
appeal, and,
properly
pursue this
excluded. Defendant does not
issue on
as stated
supra,
accompanying
question.
text
note
I do not address this
limine did
colloquy concerning
the motion 6 I note that nowhere
I,
judge specifically refer to
section
to the
either counsel or the trial
Article
or
specific
provision
heard
While the
defendant’s
to be
herself.
cited,
parties
subject
the trial court were aware that
was not
both
parties
testify,
and both
and the
under discussion was the defendant’s
I therefore consider the
were aware
the constitutional nature
claim.
court
O’Neill,
State v.
adequately preserved
274 Or
for our consideration.
matter
Cf.
Helliwell,
Highway
Commission
225 Or
P2d
P2d
appealed
conviction,
Defendant
and the Court
Appeals’ per
opinion
curiam
was as follows:
Wardius,
“Affirmed. State v.
App
6 Or
487 P2d
(1971),
part
rev’d in
37 L
(1973).”
Ed 2d 82
*9
576,
51 Or App
he has an absolute
concerning
to do so
so
any
alibi as well as
other relevant matter.
testify
right
requirement
“Defendant confuses the
with the
that he first
* * *
comply
requirement
legislature, by
with the notice
of the statute.
The
Oregon
p
[subsequ-
enactment of
ch
Laws
now ORS 135.875
ently
135.455],
require
renumbered ORS
saw fit
a defendant to
days’
rely
any way
least five
notice of intent ‘to
on alibi evidence.’ The law
deprive
right
does not
the defendant of his
to take the stand.
Supreme
recently
“The Wisconsin
Court
considered this claim under a
statute,
similar
and said:
“ ‘ * * * Assuming
right
of a defendant under either or both state
behalf,
and federal constitutions to
as a
witness
his own
it does
right
any
procedural requirements
not follow that such
outlaws
all
and
conditions as to notice.
“
any
stand,
‘When
witness takes the
he swears or affirms that he will
truth,
nothing
tell the
truth
whole
but
the truth. What
constitutionally protected
testify truthfully
right
is the
of a defendant to
* * *
prejudice by
require-
his own behalf.
defendant suffers no
[T]he
ment of advance notice of intention to establish such fact [of alibi].
decisions,
based,
they
These
any way
and the statute on which
are
do not limit in
right
testify truthfully
of a defendant
in his own behalf.
prior
testimony,
The condition of
notice as to alibi
like the test as to
materiality
relevancy,
right
does not invade the
of a defendant
Burke, supra,
in his defense.’ State ex rel Simos v.
41 Wis 2d at
(1968)].”
NW2d
180-181
[163
397-398,
App
6 Or
this is the first occasion on which we issue. consider this CONSTITUTIONAL II. THE DEFENDANT’S RIGHT TO TESTIFY to be right question A threshold is whether 11 includes herself under Section heard history right, this, I examine the testify. To decide Oregon of the Constitu- what the drafters trying to discern Bill of in the they language included this tion meant when Rights. copied 11 was from the of Section language copied constitution of 1851.8 That
Indiana Constitution the earlier Indiana Constitution language of Pennsyl early from the constitutions was in turn drawn Ohio, Tennessee, Kentucky,9 and vania, language guar each to be heard is found in anteeing the accused many early state of these10 and is common early constitutions were constitutions.* At the time these (1926); Palmer, Carey, History Oregon A Constitution 468 8C. I, Constitution, Oregon Art § L Rev Ind Const Sources Or ** * (1851) (“the shall have the to be heard himself and accused (1816) (“in counsel”); I, prosecutions, all criminal see also Ind Const Art *10 counsel”). by right be heard himself and accused hath to (1945). Rights, 9Twomley, Indiana Bill Ind L J 212-213 The 20 * 10 XII, (1792) (“the Kentucky Ky right Art accused hath a to be Const 10 — counsel”); X, (1799) (“the by Ky Art 10 accused § heard himself and his Const XIII, (1850) counsel”); Ky right by Art 12§ hath a to be heard himself and Const (“the counsel”); by right heard himself and Ohio—Ohio accused hath a to be Const, VIII, (1802) (“the by right himself and Art 11 accused hath a to be heard § I, (1851) (“the counsel”); party Art accused shall be allowed to § his appear Ohio Const 10 counsel”); Pennsylvania person in Const Declara and defend and with —Pa (1776) (“a by right Rights and his IX man hath a to be heard himself § tion of (1790) (“the by counsel”); IX, right hath a to be heard § Pa Const Art 9 accused (“the counsel”); (1838) right hath a to § his Pa Const Art IX 9 accused himself and (1796) counsel”); XI, by 9§ and his Tennessee— Tenn Const Art be heard himself counsel”); (“the by right be heard himself and his Tenn Const accused hath a to (“the I, (1834) by right hath a to be heard himself and his Art 9 accused § counsel”). reproduced 11 in W. All and those cited note are of these constitutions infra volumes, (11 Swindler, and Documents of United States Constitutions Sources 1973-1979). 11 vary, following Though wordings state constitutions individual all right language guaranteeing be heard: Alabama—Ala Const an accused’s to contain (1819) (“In right I, prosecutions, has a to be all criminal the accused § Art 10 (1836) (“the II, counsel”); by 11§ Const Art himself and Arkansas —Ark heard counsel”); by right be heard himself and Connecticut —Conn accused hath a to heard”); (“the I, (1818) right Delaware'— shall have a to be § Const Art 9 accused (“the by I, right to be heard himself Del Art 7 accused hath § Const (1838) (“the I, right counsel”); accused hath a § Const Art 10 his Florida —Fla heard not include the drafted, however, right to be did law, of the common testify. Following the rules right uniformly held that jurisdictions American testim competent sworn a criminal ony.12 English to be Heard in Law Right
A. The heard, to be we meaning right To discern England. the criminal law in history must look to Complete The early procedure is key English source for 1816) (hereinafter (T. Howell ed of State Trials Collection state Trials), the drafters of American on which State relied for and the United States Constitution constitutions procedures.13 English legal understanding their beginnings from the Trials show that accounts in the State respond law, right the defendant’s of the common trials, early matter. evolving was an charges criminal both”); I, (1819) heard, counsel, by Art 6§ be himself or or Maine —Me Const counsel, either, (“the by right be heard himself and his or accused shall have a (1780) I, (“every election”); Part Art XII at his Massachusetts —Mass Const * * * himself, by right fully subject or his to be heard his defence shall have (1784) election”); I, (“every Hampshire § H Const Art xv at his New counsel subject —N heard * * * himself’); fully by right defence Rhode have a to be his shall * * * I, (1842) (“the liberty speak accused shall be at § Island-RI Const Art (1836) (“the himself’); Const, Rep Rights, § of Tex Declaration of Texas— counsel, both”); heard, being by right Tex himself or or accused shall have (1845) (“the by I, right being accused shall have the heard § Const Art (1777) (“a counsel, both”); I, x hath a § or Vermont —Vt Const Ch man himself or counsel”); I, (1786) (“a heard, by Vt xi man himself and his Const Ch to be counsel”); I, (1793) Const, Vt Ch art x hath a to be heard himself and his counsel”). (“a person be heard himself and his hath a Testify, History Right Popper, Development the Accused’s 570, 573-576, 454-460; Ferguson Georgia, L Wash U Q 758-760, L5 Ed 2d (T. Complete presented in The Collection of State Trials Of the materials (hereinafter Trials), 1816) in his Professor Peter Westen notes Howell ed article, (1974), Process, appears Compulsory L 73 Mich Rev accepted as accurate in accounts in the ten-volume 1765 edition Americans forming widely procedure. English Trials were criminal The State their views of Philadelphia library, copy edition in the read and there was a of the 1765 *11 filled with causes The volumes are was used the Constitutional Convention. persuasively cases, argued typical historians have celebres rather than and later embellished, inaccurate, many and sometimes fictionalized are that accounts accuracy, They key long actual but for are a source not for their after the fact. formulating early accuracy laws. Americans Americans attributed to them this, constitutions, however, drafting early relied the State did not know England impressions forming and drafted constitu their of the laws Trials Westen, supra impressions. & n 92. responded at 93-94 these See tions which regard that we now rights had few the accused against He had no justice. to criminal fundamental trial, subjected could be speedy a or to excessive bail trial, himself at to incriminate torture, required be could stages at all of counsel the assistance was denied behalf, and in his no witnesses present could proceedings, testimony in his own sworn was cases, English the earliest recorded From almost defense.14 defendant could acknowledged however, the courts defense. in his own speak early shows that the accused did
veryA case which account of the facts is the have a his Burgh, de 1 State against Articles Accusation Hubert summary, the record is Trials 13 While court, brought de was before the Burgh indicates that him, read to and he was allowed to answer charges were them, speak freely. in essence to Sautre, 1 Proceedings against William (1400), procedure. charges show a similar Trials his he request provided were read to the accused and at was prepare of these and allowed time to his copy with day, appeared response. appointed On the the accused court, to the and was then reply charges, before the read (rather orally, apparently free to than questioned was to) compelled answer. the six- century to from the fourteenth
Moving time, By this in effect. teenth, procedure we find the same word were in the modern sense of the prosecution witnesses still trials, defense witnesses were widely although used in for inter- Further, disqualification the rules uncommon. 575 at 804- Evidence being applied. Wigmore, § est were Fisher, 1979). Trial John (Chadbourn rev ed In The OS (1535), however, the Rochester, Trials 395 1 State Bishop of did not disqualification the rules record shows jury to the making his case prevent The defendant was statements. his own unsworn through read, and the court, indictment was before brought primarily This was produced. crown’s evidence informant’s close of the an informant. At the testimony of 1979). (Chadbourn 81-82; Westen, Wigmore, rev. supra Evidence *12 testimony, the bishop freely was allowed to challenge informant’s addressing questions both to him by relating his own account of the events. period Other trials from this indicate that this was practice: each general prosecution witness testified and the defendant was then an given opportunity respond See, testimony. Dacres, e.g., this The Trial Lord William of (1535), 1 State Queen Trials 407 and The Trials Anna of Boleyn. (1536). disability State Trials 409 sworn, defendant was that he was not while witnesses for the crown were.
By century, the middle of the seventeenth the rules disqualification of for interest were firmly established in trials, both civil and criminal however, cases. In criminal cause, the accused continued plead his own and his appears to do seriously so never to have been disputed. Indeed, controversy at this time was over his key have counsel. The fact led to the idea that competent defendant was not a witness was that he was not Wigmore puts sworn. As it: causes, in criminal the accused was not allowed to “[SJince * * *, felony
have counsel cases his statements covered law, without evidence, say distinction whatever he had to of of effect, evidence, argument. and of In he furnished i.e., belief; jury’s material which affected the but he was not sworn, witness, standing theory he had no as of ” (Footnotes gave omitted, the law he no evidence. therefore added) emphasis (Chadbourn Wigmore, Evidence 575 at 809 rev ed 1979). agree authorities the mid-seventeenth
century, disqualifying persons rule interested from giv- ing testimony established, was well having accepted been since about 1580. Yet the trials of this period show that defendant, although giving testimony, sworn continued to state his unsworn account to the jury. Case John Niven, (1680), practice. State Trials 125 illustrates witness, The defendant was allowed to examine each beyond this examination often went the bounds of modern cross-examination, that, Wigmore notes, so the defen- effectively dant was often giving throughout evidence case, prosecution’s trial. At the close of the he was allowed to make a statement in his defense. own Plunket, 8
Trials Dr. Oliver State The Trial proceedings. transcript (1681), have a virtual 447 Acting we
the counsel, Plunket cross-examined Dr. without made his own answer witnesses, and then crown’s
previously seen, remained in the form This answer defense.
expected apparently reply. The court oral an unsworn
solicited this free answer and to make a full and
any- asking had him, at if he him,
George jury. thing also, See The Trial to the (1681); Busby, The Trial William Trials 525 State (1683); Hone, Trial William Lord 9 State Trials 571 Sidney, Algernon Russell, Trials 577 Trial 9 State Trials 817
Proceedings against Lovat, Lord Simon
(1746), practice allowing show that this of Trials 529
speak continued even after the defendant the defendant to
prosecution’s case, he At close of the was had counsel. the
statement, set the factual evidence. His allowed to answer
clearly eviden- contains matters which are forth at 796-802 tiary.
treason, he was Lord Lovat was on trial for Since
by Thus, his counsel an act of 1695. allowed
right speak for him- case indicates that the defendant’s to
complementary right to the to counsel rather than self was Following idea, the American state an alternative. constitutions this right generally expressed a the to be heard as right counsel. of defendant to be heard himself the
the Trials indicate that These cases from State
testimony give oath, under was not allowed to defendant and was thus giving technically regarded a or as as witness legal However, earliest from the true evidence.15 respond charges right to to the cases, the defendant had the merely right brought against him, included not the and this deny guilt, right to his account his but the to facts. Right Colonies to be Heard in the American
B. The
nothing legal there is com- In American records
early parable cases Trials, and what records of to the State evidence, the defendant said was not 15 I note that because what the would also concerning right his prosecution the accused have the to cross-examine did not statements. question degree do not the precise do exist resolve to speak the defendant was in his which own Examining period sources this defense. various have no determinative evidence whether or not Americans found English practice allowing followed the the defendant However, in his own make unsworn statements behalf. early regarded Englishmen, colonists themselves as having Englishmen, and tried establish the rights com- practical. law in the colonies insofar this was mon as Further, they had vivid memories of legal of the abuses procedure England century, during seventeenth when persecuted various factions the civil wars one another. As result, strong a brought the colonists America a revulsion inquisitorial practices such as the Star Chamber. constitutions, drafting they rights they set forth the which fundamental, right considered emphasizing against accused to controvert the case him. Given their practice, knowledge respect English common law abuses, it century and their revulsion with seventeenth is a assumption, showing strong reasonable absent contrary, English practice that Americans followed the It allowed the defendant to make unsworn statements. was defense, present apparently right, right which they had in mind declared that early Americans when has I conclude that be heard. a defense this same drafters protect they Constitution intended to when Oregon part Rights provision guaran- the Bill of adopted the accused “the to be heard himself teeing *14 * * guarantee which had been included in various state to They constitutions since the revolution. intended insure his present the defendant be allowed to version that would the jury.16 facts to the 16 vestiges practice the defendant unsworn statements of this A few hearing permitted preliminary 135.095, aat ORS remain. Under trial, however, the At option his defense. to make an unsworn statement at his superseded by completely the sworn has almost statement been unsworn defendant, in his own behalf. permitted to as a witness who is now of the I am aware is the vestige which the statement trials of unsworn The sole Military Justice under the Uniform Code right in courts martial the accused being statement, his own addition make an unsworn defense. Right be Heard in American C. The Evolution Law on, era early right present From the colonial our jurisprudence, a defense has been fundamental although it is not without restrictions.17 The limits of this however, evolution, have right, subject ongoing been greatly of the accused’s defense has increased scope century. example, For the drafters of Sec- during past acknowledged right tion defendant’s to have counsel at trial. the role of counsel so recognize We now important provide public that we the accused counsel at expense, present every and allow him to have counsel Other have stage proceedings.18 rights undergone similar sweeping changes.19 respect heard,
With
to the defendant’s
to be
appears
guarantee
states included this
in their
gradually
state constitutions
and then
established rules
right,
restricted
exercise of this
with little or no
consideration
of the constitutional
questions
involved.20
17 Washington
Texas,
14,
21,
1920,
v.
21,
388 US
n.
87 S Ct
1925 n.
Cf.
18 L
(1967)
Ed 2d
(expressing general approval
n. 21
of testimonial
privileges
lawyer-client, husband-wife,
such as
disqualifying
and of rules
mentally
witnesses.)
infirm
The defendant’s
a defense is
subject
legal requirements,
such as that evidence must be relevant and material.
ongoing
On the
evolution of the
to counsel as construed
the United
Supreme Court,
Smith,
817,
States
1491,
see Bounds v.
430 US
97 S Ct
52 L Ed
(1977); Argersinger Hamlin,
25,
2d 72
2006,
v.
407 US
92 S Ct
Despite provisions, the constitutional defendant’s heard to be was overlooked in various changes criminal procedure. appears
It the Oregon territorial courts fol- lowed the common practice law of regarding defendants as incompetent give testimony.21 sworn apparently to resolve the trying question, legislature established incompetency by statute, the rule of by Section 166 of the Code, Criminal which read: “A a criminal proceeding against action or cannot be a witness for or * * himself, clear, however, *.”22It is not am and I unable to determine whether or not the defendant make unsworn statements in his defense before or after the enactment of this statute. this
During period, widespread there was dis- legal scope self-incrimination, cussion of the of the right against find that this discussion and the evolution of this heavily bears my consideration of the instant case. At Oregon adopted, lawyers the time the Constitution was throughout the nation were debating scope of right against defendant’s self-incrimination and its rela- tionship rules holding incompetent defendants testimony. urged retaining sworn Those who the rule that incompetent defendant was insisted that this was neces- sary protect They the defendant. if believed that testify, defendant could the pressure on him to take the unbearable, stand would be ruthless cross-examination appear guilty regardless truth, would make him right against self-incrimination would out. wiped be during period Several courts articulated these concerns in rulings barring testifying defendants in their own defense.23 Minutes, Hearings, heard. See and the defendant’s to be
between this statute
2; Minutes,
Committee,
p
Hearings,
Judiciary
April
Senate
House
Committee, May 5,
pp
Judiciary
1-2.
(a
(1854)
person jointly
Territory,
indicted is
Those who favored defendants lent They charged credence these fears. that the privilege against self-incrimination was a shield for the rather guilty protection than a for the innocent. *16 1864,
In year the same in the Oregon legisla- ture competent declared the defendant was not to abe witness, Maine became a adopt the first state to statute making generally competent the defendant to a be sworn as witness in his own defense.24 Once first this inroad was made, 1880, change quickly. followed the Oregon legisla- adopted provision ture compe- which rendered defendants tent to By their election.25 then at least 30 other American jurisdictions rule, had adopted end the century, only of Georgia did not allow the defen- dant to right testimony.26 sworn scope
To determine the modern of the defendant’s right heard, to be however, we must look to the circum- stances of the modern criminal trial. In the context of the prisoner offering we were hold that a “[I]f make statement must be witness, protect in sworn the cause as a it would be difficult to his constitu- spite caution, rights every lay parties
tional in of and would often innocent silent, unjust suspicion they honestly under where were and embarrassed and * ** overwhelmed the shame of a false accusation. would result [It in] degradation jurisprudence by converting of our criminal it into an inquisitorial system, happily from which we have thus far been delivered.” quoted Popper, supra Me Pub Law ch note at 463 and n. 47. 25, 1880; 1, p 28; Act of Oct. Or Laws 166: § Crim. Code upon indictments, complaints, “In the trial of or examination all informa- court, proceedings any jury, magistrate, grand jury tion other before or tribunal, against persons charged other accused or with the of commission offenses, person charged request, crimes or so accused own or shall his otherwise, competent witness, given but not testimony being be deemed a his the credit to be solely court, jury left to the under the instructions or magistrate, grand jury tribunal,
the discrimination of the or other before which testimony Provided, may given; such be His waiver of said shall not him; accused, any presumption against create that such defendant or when offering behalf, his as a witness his own shall be deemed to have given prosecution upon to cross examination all facts to which testified, tending acquittal.” he has to his conviction or 457-470; Popper, supra (Chad Wigmore, note 12 at Evidence §§ 575-579 1979); Thayer, Massachusetts, Chapter Legal History bourn rev ed A 9 Harv (1895); Ferguson Georgia, 570, 578-582, L 761-763, Rev v. Rakiec, People 5 L 2d Ed 789-91 NY (1942); Note, NE2d 813-814 Due Process Counsel’s Unilateral Defense Right Testify, Waiver L 3 Hast Con Q Defendant’s testify, trial, has a general
modern many expectation there is a strong and in instances legally or not she the defendant will whether disability precluding bound to do so.27 common law signifi- now historical testifying cance. intent of the law is consistent with the
Evolution our men were aware of the drafters of Constitution. Those had legal Many nature of rules. of them changing territory,28 and later change the laws of the helped to the laws the new state. There is no helped change believe that the framers of our Constitution reason to rights intended to freeze defendant’s they undergoing rules that realized were then the form of Supreme of the Seventh Amend- changes. As the Court said ment: courts to the
“The Amendment did not bind the federal jury according procedural exact incidents or details 1791, any law in more than tied them to common system specific pleading or the rules of the common-law *17 * * * conclusion, prevailing. logical The more evidence then think, history previous the one which both and the we support, Amendment was here is that decisions jury designed preserve trial the basic institution elements, great mass most fundamental not the its details, widely varying even then so procedural forms and among jurisdictions.” common-law States, 372, 390-392, 63 Ct Galloway 319 US S v. United (1943).29 1087-1088, 1458, 1077, 87 L Ed 1471-1472 27 12, Popper, supra note at 470-471. 28 code, away doing 1853, legislature revised the civil with In the territorial They York revision on recent New law forms of action. based their old common [front-piece], Oregon See also Gen Laws of 1853-54. See “Advertisement” law. 603, Schmidt, Corp. is P2d 791 This rel v. 291 Or 633 State ex Kashmir largely
particularly significant the work the New York code revision because Field, removing leading Dudley of the advocates for David who was one pressed change incompetency parties litigation, New and who had 12, Popper, supra note at 467-468. York revisers. See 29 15, 806, 15, California, n n L 2d 562-63 v. 422 US 819-20 45 Ed Faretta Cf. 92-93, Florida, 78, (1975); 2525, S Ct v. US 90 Williams 399 95 Ct 2533 n 15 S 198-200, 194, Illinois, 1902, 446, (1970); n. 1893, Bloom v. 391 US L Ed2d 456 26 1477, (1968) (“the 2, 522, 2, ultimate 2 n. S Ct 1480-81 n. L Ed 2d 528 88 20 historically but question correct whether is the traditional doctrine is not whether necessary jury contempts is a entitled to a are never the rule that criminal Texas, Constitution.”); Washington acceptable v. or construction 1024-25, 21-22, 16, supra 87 S Ct L 2d US at 18 Ed note 388
I conclude that the defendant’s right by to be heard herself, as guaranteed by 11, Section is not bound by minutiae legal rules in effect in 1859. The fact that defendant did not then clearly have a right to testify under oath in her trial is noteworthy, but not controlling.30 support of this conclusion I note that courts in several other states have held that testify constitutionally guaranteed by the process provisions due Amendment,31 Fourteenth or process the due clause and state provisions.32 (1967) (the provisions compulsory process 1924-25 clause are not bound 1789). the rules of 30 Westen, supra (footnote omitted): note 13 at 114-115 Cf. “There is no reason to believe that the framers intended to freeze the rights already defendant’s constitutional forever in the form of rules
undergoing change.
perfectly
they
It is
sound to conclude that
intended
protect
evolving principles
instead to
the main and
of the common law
minutiae,
accompanying
without their
and to leave to future courts the
*** *”
applying
principles
specific
task of
those
cases.
Chavez,
People
(Colo 1981);
State,
Hughes
v.
I would right testify. to guaranteed to be heard includes the right OF III. A VIOLATION PRECLUSION AS THE RIGHT TO TESTIFY right remains whether this was vio- question testify to case. The defendant was not allowed lated court ruled that her alleged alibi because the trial to technically rendered proper to file and serve a failure inquire now whether her alibi inadmissible. right 11 the defendant these guarantees Section testimony and jury to hear her alibi circumstances let its truthfulness. decide court, context, in a ruled that One federal somewhat different testify right amendment to the United States
has
under the fourteenth
Constitution, saying:
“Any
holding
strongly imply
contrary
that if state statutes authoriz-
would
thereby
testify
repealed,
rendering
ing
crimi-
criminal defendants to
were
incompetent
constitutionally
testify,
could
defendants
a state court
nal
permit any
testifying.
Such
result
refuse to
criminal defendant
Indeed,
clearly
step
out of
with the current state of
law.
would be
right against
find
self-incrimination is entitled
would be ironic to
protection,
right
not.”
but the
articulate
defense
1977),
Johnson,
115,
(3rd
v.
555 F2d
119
Cir
United States ex rel Wilcox
quoting
adopting
unpublished opinion
of the District Court
an
Pennsylvania.
District of
Eastern
32
constitution);
Hibbard,
(SD 1978) (state
State v.
v.
NW2d 172
State
273
(both
constitutions);
(Minn 1979)
People
Rosillo,
federal and state
These decisions an evidentiary theory rest on of preclusion. explained Simos, As since the defendant’s alibi, true, if spare would exculpate her and her the neces- sity trial, of a prejudiced by she is not pretrial disclosure of Therefore, her alibi. an alibi not disclosed until is theory assumed be untrue. The continues that because right defendant’s guarantees only under oath testify truthfully, of exclusion the alibi testi- (assumed false) mony infringe does not tes- tify.33 ORS 135.455 embodies an assumption irrebuttable that an undisclosed alibi is untruthful. The testimony alibi is declared to incompetent; is, be it is evidence which cannot presented be jury in any circumstances.
This rule rests on the idea that the right evidence is subordinate to courts’ interest in preventing perjured testimony, and that perjury-tainted decisions can be best avoided broad rules that keep all suspect evi- dence jury, from the even if this the evidence available on critical issues. I example think this is an of what Morgan Professor Edmund described as “the obses- early sion of judges and legislators of earlier and later perjury can be prevented by exclusionary rules.”34 I endorse Professor Morgan’s conclusion as the wisdom of such rules: procedure “No rational will sanction an exclusionary supported only by rule its supposed efficacy to hinder or prevent testimony.”35 false constitutionally protected “What is the of a defendant Burke,
truthfully.” State ex rel Simos 41 Wis 2d 153 NW2d (1968). “Forward,” Morgan, ALI Model Code of Evidence 6
35Id. likely by hearing testimony truth is more to be of all arrived “[T]he persons may competent understanding knowledge seem to who have case, weight leaving such facts involved the credit ** testimony jury to be determined *.” society’s inter- question legitimacy I do not perjured testimony. preventing acquittals est based truth, the fundamental Further, the search for which is if both adversary process, is enhanced sides purpose opposing the basic outlines are aware of least case.36
The commentaries which have advocated are, however, primarily statutes concerned with the uncorroborated the defendant. The concern underlying was the use of numerous alibi notice statutes *20 the surprise witnesses corroborate defendant’s claims.37 history The now a legislative of what is ORS 135.455 shows surprise use similar concern with the of witnesses cor- roborate the defendant’s claims.38 The commentators were all, very adopted in that if specific urging preclusion, witnesses, apply would these the defendant. surprise of the statute is to eliminate wit- purpose “The nesses, would not include the defendant.”39 obviously 409, States, 467, 471, 406, 148, L S Ct 150 Rosen v. United 245 US 62 Ed 38 14, 1024-25, Texas, 22-23, 1019, (1918); Washington S Ct US 18 L Ed 2d 87 388 (1967). 1924-25 36 1893, 1896, Florida, 2d S Ct 26 L Ed Williams (1970). Bar, (1936) Stassen, the 20 Minn L Rev 580-581 Show Window The of Procedure, (“a witnesses”); Millar, parade 11 J The Criminal Modernization of of Discovery Waddington, Criminology Criminal Crim L G 350-351 Statutory (1961); Note, Defense, Law: L A Bull 7 Criminal the Alibi Bar Through Requirements, L Regulation Ind J Notice Alibi Defense Committee, Judiciary Judge] hearings Mr. [now At the before the Senate Attorney spoke Hoomissen, County in favor George District of the Multnomah van bill which became ORS 135.455. explained in a George that it was not uncommon Van “Mr Hoomissen put felony charged its person the a was with a state where case evidence, Friday a at two o’clock on rest case and then the defendant its says any warning that on the without whatever takes the stand and afternoon This, course, crime, the day catches the state and he was in Wichita. warning surprise they
police completely by had no advance because officers produce going will then was to be raised. that this defense alibi; they maybe attempt ex-convicts or are to corroborate his witnesses any event, opportunity there no for the state relatives of the defendant. successfully verify cross examine the alibi witnesses.” to either the alibi or added) (Emphasis Committee, Judiciary May p Minutes, Hearings, 1. Senate 2; Note, supra n. 118. Waddington, supra at 109 20 and note note the Several courts have that defendant’s acknowledged a presents very uncorroborated claim of alibi weak defense.40 testimony testimony
The defendant’s alibi and the corroborating a witness are fundamen- tally each prosecution prove different. must element of beyond doubt, pres- the crime including reasonable ence is necessary defendant where this to establish Thus, in guilt. prosecution prepared any must be pre- event to counter defendant’s denial that she was By contrast, sent at the scene of the crime. a witness corroborating the defendant’s subject alibi not a normal pretrial investigation, complaint and the urging those requirements prosecutor might easily “the such cases disclose
falsity had he the time investigate both reliability witnesses and factual details of evidence, opportunity.”41 but he is often denied
Thus, the state’s interest cases where there is a surprise claim of alibi precluding is not so much in presentation evidence, of the alibi but in having a reason- able opportunity to investigate testimony. recognize the state a legitimate has preventing interest false of alibi, claims but can this interest justify rule of preclusion that works such manner as sweeping *21 40See, e.g. (6th 1971); Hibbard, Johns v. Perini F2d 440 579 Cir State v. (SD 1978). 273 NW2d 174 states, language suggests In some the of the alibi notice statute a distinction between the Michigan and the defendant’s witnesses. York Courts New and precluded only testimony have held statutes those states witnesses, Rakiec, testify. People of while the defendant v. could 289 NY 45 Merritt, (1976). People NE2d 812 396 Mich 238 31 NW2d In neither question preclusion case did court reach of of constitutional the defendant’s Hibbard, (SD testimony. 1978) (adopting reasoning State v. NW2d 172 273 Cf. Merritt, relying grounds). of Rakiec but and also on state Each required reading these cases a strained I the statute involved. do not think the Oregon susceptible reading. statute is to this alibi notice statute reads as to preclusion: not be “[The shall to introduce evidence at the defendant] * * 135.865, language language This is to be contrasted with the of ORS concerning comply requirements, discovery the sanctions for failure with may permit testify, reads court refuse the witness or refuse to “[T]he * * disclosed, receive in evidence the material not 41 Note, Statutory Regulation Through Criminal Law: Alibi Notice Defense Requirements, 30 Ind L J 107 542
imposed goal
sanction ORS 135.455? The of the adver-
sary process discovery Reflecting goal, is the of truth.
legislatures modern and courts have shown a consistent against incompetence resting categories trend rules of
impossibility determining assumed untruthfulness.42 The
priori given testify truthfully a a whether witness will
categorical makes rules untenable.
relationship
This case illustrates tenuous
falsity between defective notice and the truth or
testimony. defendant’s alibi There is no evidence that the
any knowledge complicity defendant had of or in the failure
proper file notice. It is hard to discern what basis the
give provides leaping failure to notice the conclusion
testimony that the defendant’s alibi would be false.43
an will be who testifies to alibi The defendant
prosecution subject While to full cross-examination.
power of cross-examination to belittle the this case seems
falsity claimed defendant’s truth or to disclose the
put Wigmore it: “[I]t As Professor alibi, I believe otherwise.
legal engine greatest beyond any invented ever doubt the
Wigmore, discovery Evidence 1367 of truth.” 5 for the
1974). (Chadbourn rev. ed against possible courts affront As testimony, appropriate perjurious presentation charges clearly bring appropriate criminal course against the offender. proper absent state contends preclusion But the half truth. is at best
alibi non-Christians, disqualified time, example, law rules at one common For persons. categorical have anyone These rules a crime and all interested convicted of 518-524, generally Wigmore, 575-580 §§ Evidence abolished. See since been 1976). (Chadbourn 1979); (Chadbourn Wigmore, rev ed id. §§ rev ed Code, (effective Oregon Rule Jan. regard Evidence note the new In this also 1982), Oregon fairness Code be construed secure “The Evidence shall delay, promotion administration, expense unjustifiable and elimination of may be end that the truth growth development of evidence to the of the law proceedings justly determined.” ascertained (neither (DC 1980) Mulcahy, Supp NJ error F Hackett Cf. present alibi waiver of defendant’s counsel constitutes nor misconduct *22 witnesses). truth. distorting may equally have an effect sanction deny that she was at permitted defendant here was The say station, permitted not but was Fastway gas she was, nor was affirmatively where she may have Her silence point. on this her silence explain credibility, her general this issue and on misleading on been could effect of silence testimony, misleading and unlike by questioning. further not be countered charged any person, although Under our statutes crime, is assumed to be innocent with the commission of beyond a reasonable doubt. See is established guilt until trial, 17.250(5) time and see Or Laws at the ORS provide, If statutes did not so ch 85a. our of the Fourteenth Amendment Due Process Clause Winship, In re 397 US Constitution would. United States 2d 358, 364, 90 Ct 25 LEd S LEd 2d Virginia, Jackson (1979). very upon charge The trial a criminal is for the doubt, whether, beyond a reasonable purpose establishing charged. defendant has committed the crime Under and to Section 11 the defendant has a that she is guilty. establish at least a reasonable doubt statutory testimony prevents of her preclusion sanction having relevant evidence from which factfinder a reasonable the factfinder could conclude that there is person that defendant is the who has committed doubt in the statutory may crime. The sanction well result convic act. person proscribed of a who did not commit tion requirement otherwise is assuming Even the notice valid, silencing conviction of a crime necessary way it. permissible not a nor a to enforce What constitutionally legislature might sanctions44 the ever other defendant or her counsel for failure to impose against a 135.455, requirements the notice ORS abide her of her under Section deprive cannot legislature testimony she was elsewhere her own give of the offense person guilty who is therefore way to the constitution. The statute must charged. Note, Preclusion suggestions the various innovative offered Note Right Defense, to Present a L A the Constitutional 81 Yale Sanction: Violation of possible sug By mentioning this Note as source of J any specific suggested gestions, measure therein. I do not endorse
Accordingly, agree
I that the defendant’s conviction must be reversed and the cause remanded for a new trial. join opinion. Peterson, JJ.,
Linde and in this