October 2007 “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

Motions to suppress in criminal cases - timeliness

It is not unusual for defense counsel in criminal cases to file motions to suppress shortly before trial. Counsel should be aware that untimely motions to suppress may be denied on that basis alone.

UTCR 4.010 requires such motions to be filed “not less than 21 days before trial or within seven days of arraignment, whichever is later, unless a different time is permitted by the court for good cause shown.” On August 15, the Court of Appeals issued its opinion in State v. Betnar, 214 Or App 416, ruling that the trial judge did not abuse his discretion in denying a motion to suppress that was filed on the eve of trial.

What is on the last page of your order or judgment?

Have you prepared (or seen) an order or judgment that runs a little longer than you thought it might run, and spills over onto one page more than you thought? Sometimes we see orders or judgments that contain only the judge’s signature portion of the document on the last page. UTCR 12(a) requires that the page prepared for the judge’s signature must contain at least two lines of the text. The rule also requires you to include below the judge’s signature line the printed name of the judge, if the order or judgment is prepared for the signature of a particular judge. You should also include a date line for the judge to use when he/she signs the order or judgment.

Take care about what is said in the public areas of the courthouse

Lawyers should remember to be cautious about their conversations in the hallways, elevators and lobby of the courthouse. And you should tell your clients and witnesses to be careful about this, also. The public areas of the courthouse are full of jurors and other interested parties, and occasionally something is said in the presence of a person who should not overhear it. Don’t compromise your client’s interests - be careful, and make sure your clients and witnesses are careful too.

Timely submission of motions and memoranda

Lawyers continue to submit motions, memoranda, etc to the judge hearing the matter at the last minute. You spend a lot of time and effort (and your client goes to a lot of expense) in the preparation of written materials designed to convince the judge to make the “right” ruling for your client. So why do you deliver those materials to the assigned judge when it is too late for the judge to read and fully consider your materials before the hearing? You are wasting your time and effort and your client’s money when you take this approach. Get your written materials submitted sufficiently in advance of the hearing to have them make a difference for your client.