State v. Green: A Historical and Legal Analysis of Oregon's First Reported Use of Direct Offensive Issue Preclusion Against a Criminal Defendant in State Court

Abstract

In-depth analysis of Oregon's first reported use of direct offensive issue preclusion in a state court criminal prosecution: State v. Roger Lynn Green, 271 Or. 153, 531 P. 2d 245 (1975). The use of direct offensive issue preclusion against a criminal defendant is a relatively recent deviation from established procedure in the administration of criminal justice in America. It raises Double Jeopardy objections, presents fundamental fairness issues for parties and jurors, is highly controversial, and has created a conflict among the states and federal circuits. For instance, although the Supreme Court of Oregon has upheld the practice, the Supreme Court of Tennessee recently prohibited it: State v. Scarborough, 181 S.W. 3d 650 (2005), as did the Ninth Circuit: U.S. v. Arnett, 353 F. 3d 765, 766 (9th Cir 2003) (Order, per curiam). It is worthwhile exploring how one state (Oregon) initiated the practice via a sua sponte Order by its State Supreme Court which was later expanded on by the Legislative branch. This is the first of a three-part series on the use of direct offensive issue preclusion in criminal prosecutions in Oregon.

Keywords: double jeopardy, due process, direct offensive issue preclusion, right to trial, directed verdict

JEL Classification: K14, K40, K41