- Court: Oregon Supreme Court
- Area(s) of Law: Criminal Procedure
- Date Filed: 10-03-2013
- Case #: S060858
- Judge(s)/Court Below: Brewer, J. for the Court; En Banc.
The State petitioned for a writ of mandamus. Defendant was arrested and detained following an "Occupy Portland" gathering and was charged with trespassing in the second degree. Defendant requested a trial by jury, which the trial court granted. The State argued that pursuant to ORS 161.566, the prosecution was at liberty to reduce the charge to a violation, thus eliminating Defendant's right to a jury trial. Article 1, section 11 of the Oregon Constitution grants a defendant the right to a trial by jury if the proceeding is a "criminal prosecution." In State v. Brown, the court came up with several factors to determine what constitutes a "criminal prosecution" including the type of offense, the type of penalty incurred, the consequences of such a charge, the punitive significance, and the role of pretrial arrest and detention. However, the court in Brown said while all the factors are relevant, none are conclusive on deciding whether a proceeding constitutes a "criminal prosecution." The State and Defendant have opposing views as to how to apply the factors in Brown. The Court determined "some [of the Brown] factors will point more clearly than others to a particular conclusion in the circumstances of a given case". In this case the Court found whether Defendant had a right to a jury trial hinged on Defendant's pre-trial arrest and detention and the nature of the offense charged. The petition for writ of mandamus is dismissed.