Oregon Character Evidence: Jury Instructions (10 of 10)
Leistiko jury instruction should be requested.
An Oregon criminal defendant should always request a finding that a jury instruction cannot cure the unfairly prejudicial impact or confusion of the issues for the other acts evidence. However, in the event the Court determines that any “other act” evidence is admissible, always request at trial that the trial court instruct the jury that it cannot consider the prior act evidence at all unless and until it had determined that the criminal act occurred. This doesn’t help much ina self-defense situation but other times it does.
The jury must reach that conclusion based on evidence other than the “other act” evidence and the Court must ensure that the jury does not consider the “other act” evidence in the determination of whether the current charged act (pushing off the cliff) happened. State v. Leistiko, 352 Or 172, 184 (2012).
Leistiko survives Williams, notwithstanding Brown’s and Horner’s plain error references. There is nothing about Williams that makes Leistiko’s OEC 404(3) analysis inapplicable to OEC 404(4) post-Williams. The State must still prove the actus reus of the charged crime before the jury may consider prior bad acts.
BACK TO PAGE 1: Oregon Prior Bad Acts Evidence for Criminal Defense Attorneys: Improper Character Evidence or Relevant? (1 of 10)
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