knowing waiver in Oregon

2019Miller v. Gladden , 249 Or. 51 , 54, 437 P.2d 119 (1968) ("If a knowing waiver is not shown by the court's records, and petitioner testifies he had no knowledge of his right to be represented, the burden is upon the state to prove circumstances from which the post-conviction trial judge can and is willing to infer that petitioner had knowledge of this right."); See also Stelts vs.

2019Miller v. Gladden , 249 Or. 51 , 54, 437 P.2d 119 (1968) ("If a knowing waiver is not shown by the court's records, and petitioner testifies he had no knowledge of his right to be represented, the burden is upon the state to prove circumstances from which the post-conviction trial judge can and is willing to infer that petitioner had knowledge of this right."); See also Stelts vs.

2026State v. Welch, 295 Or App 410, 417 , 434 P3d 488 (2018).

2026State v. Welch, 295 Or App 410, 417 , 434 P3d 488 (2018).

2025BR 5 .2, which means evidence that “the truth of the facts asserted is highly probable,” In re Nisley, 365 Or 793, 801 , 453 P3d 529 (2019) (internal quotation marks omitted).

2025BR 5 .2, which means evidence that “the truth of the facts asserted is highly probable,” In re Nisley, 365 Or 793, 801 , 453 P3d 529 (2019) (internal quotation marks omitted).

2020We recently held in State v. Foss-Vigil, 304 Or App 267, 273-74 , 467 P3d 38 (2020), that a conviction will be set aside based on a failure to provide an indictment or preliminary hearing if the record establishes the absence of a knowing waiver.

2020We recently held in State v. Foss-Vigil, 304 Or App 267, 273-74 , 467 P3d 38 (2020), that a conviction will be set aside based on a failure to provide an indictment or preliminary hearing if the record establishes the absence of a knowing waiver.

2020Relying largely on Huffman v. Alexander, 197 Or 283 , 251 P2d 87 (1952), reh’g den, 197 Or 283 , 253 P2d 289 (1953), we held that “a circuit court obtains jurisdiction to try or convict a defendant in a felony case only upon issuance of an indictment, an information supported by a probable-cause determination made following preliminary hearing, or the defendant’s knowing waiver of indictment or preliminary hearing.” Keys, 302 Or App at 523-24 (emphases in original).

2020Relying largely on Huffman v. Alexander, 197 Or 283 , 251 P2d 87 (1952), reh’g den, 197 Or 283 , 253 P2d 289 (1953), we held that “a circuit court obtains jurisdiction to try or convict a defendant in a felony case only upon issuance of an indictment, an information supported by a probable-cause determination made following preliminary hearing, or the defendant’s knowing waiver of indictment or preliminary hearing.” Keys, 302 Or App at 523-24 (emphases in original).

1989Counsel in juvenile court must be made available for parents and children alike when the relationship of parent and child is threatened by the state.” The court also observed: “While the case at bar is not a criminal matter, the consequences of the denial of counsel are as serious as they are in most criminal prosecutions.” It held that, as in criminal cases, “waiver of counsel must be shown to have been a knowing waiver.” 251 Or at 118 .

1989Counsel in juvenile court must be made available for parents and children alike when the relationship of parent and child is threatened by the state." The court also observed: "While the case at bar is not a criminal matter, the consequences of the denial of counsel are as serious as they are in most criminal prosecutions." It held that, as in criminal cases, "waiver of counsel must be shown to have been a knowing waiver." 251 Or. at 118 , 444 P.2d 15 , 444 P.2d 1005 .

1989Counsel in juvenile court must be made available for parents and children alike when the relationship of parent and child is threatened by the state." The court also observed: "While the case at bar is not a criminal matter, the consequences of the denial of counsel are as serious as they are in most criminal prosecutions." It held that, as in criminal cases, "waiver of counsel must be shown to have been a knowing waiver." 251 Or. at 118 , 444 P.2d 15 , 444 P.2d 1005 .

1982State v. Jamison, 251 Or 114 , 444 P2d 1005 (1968); but see Lassiter v. Department of Social Services, 452 US 18 , 101 S Ct 2153 , 68 L Ed 2d 640 (1981).

2025In her assignment of error, defendant contends that the state failed to “meet its burden to show a knowing waiver under [the] circumstances.” Specifically, defendant argues that her “intoxication, involvement in a significant automobile crash, and treatment in the hospital * * * rendered the waiver invalid” and that the record lacks evidence “about defendant repeating her rights, nodding along, signing a card, or explicitly responding with a ‘Yes, I understand.’ ” We disagree with defendant’s arguments. “[A] defendant’s statements obtained during a cus- todial interrogation are admissible only

2025In her assignment of error, defendant contends that the state failed to “meet its burden to show a knowing waiver under [the] circumstances.” Specifically, defendant argues that her “intoxication, involvement in a significant automobile crash, and treatment in the hospital * * * rendered the waiver invalid” and that the record lacks evidence “about defendant repeating her rights, nodding along, signing a card, or explicitly responding with a ‘Yes, I understand.’ ” We disagree with defendant’s arguments. “[A] defendant’s statements obtained during a cus- todial interrogation are admissible only

2021Id.

2020To the extent that the court in Hust made any suggestion about the right to a trial by jury—as opposed to the question of whether an appellate court can revisit a jury verdict on appeal even in the absence of error—we conclude that the court’s later recognition, in McKay, that “[t]he determination whether another state’s laws should be applied in this state’s courts requires more than a classification of those laws as ‘substantive’ or ‘procedural,’ ” 306 Or at 496 , renders the court’s comments in Hust unhelpful in resolving the issue before us.

2020EXCULPATION PROVISION Next we address Kim’s first, second, and third assignments of error, which all relate to a provision in DPC’s certificate of incorporation. 8 Delaware Code section 102(b)(7) allows a certificate of incorporation to contain “[a] provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director: (i) For any breach of the director’s duty of loyalty to the corporation or its stockhold

2020EXCULPATION PROVISION Next we address Kim’s first, second, and third assignments of error, which all relate to a provision in DPC’s certificate of incorporation. 8 Delaware Code section 102(b)(7) allows a certificate of incorporation to contain “[a] provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director: (i) For any breach of the director’s duty of loyalty to the corporation or its stockhold

2019State , 299 Or. 252 , 256-57, 701 P.2d 1047 (1985) (defendant did not have to establish "prejudice" to obtain post-conviction relief after pleading guilty without knowledge of his constitutional right).

2019State , 299 Or. 252 , 256-57, 701 P.2d 1047 (1985) (defendant did not have to establish "prejudice" to obtain post-conviction relief after pleading guilty without knowledge of his constitutional right).

2018Owners' v. Victaulic Co. , 293 Or.

2014See, e.g., State v. Erb, 256 Or App 416, 423 , 300 P3d 270 (2013) (defendant’s written waiver of counsel, which stated that she was “aware of the help a lawyer might be to me,” was insufficient to establish that the defendant was aware of the risks of self-representation); State v. Reed, 247 Or App 155, 161-62 , 268 P3d 756 (2011) (evidence that defendant had appeared at prior probation violation hearings, both with and without counsel, was insufficient to show a knowing waiver of counsel); State v. Massey, 160 Or App 197, 199 , 981 P2d 352 (1999) (evidence that defendant had worked as a paral

2014See, e.g., State v. Erb, 256 Or App 416, 423 , 300 P3d 270 (2013) (defendant’s written waiver of counsel, which stated that she was “aware of the help a lawyer might be to me,” was insufficient to establish that the defendant was aware of the risks of self-representation); State v. Reed, 247 Or App 155, 161-62 , 268 P3d 756 (2011) (evidence that defendant had appeared at prior probation violation hearings, both with and without counsel, was insufficient to show a knowing waiver of counsel); State v. Massey, 160 Or App 197, 199 , 981 P2d 352 (1999) (evidence that defendant had worked as a paral

2014See, e.g., State v. Erb, 256 Or App 416, 423 , 300 P3d 270 (2013) (defendant’s written waiver of counsel, which stated that she was “aware of the help a lawyer might be to me,” was insufficient to establish that the defendant was aware of the risks of self-representation); State v. Reed, 247 Or App 155, 161-62 , 268 P3d 756 (2011) (evidence that defendant had appeared at prior probation violation hearings, both with and without counsel, was insufficient to show a knowing waiver of counsel); State v. Massey, 160 Or App 197, 199 , 981 P2d 352 (1999) (evidence that defendant had worked as a paral

2014See, e.g., State v. Erb, 256 Or App 416, 423 , 300 P3d 270 (2013) (defendant’s written waiver of counsel, which stated that she was “aware of the help a lawyer might be to me,” was insufficient to establish that the defendant was aware of the risks of self-representation); State v. Reed, 247 Or App 155, 161-62 , 268 P3d 756 (2011) (evidence that defendant had appeared at prior probation violation hearings, both with and without counsel, was insufficient to show a knowing waiver of counsel); State v. Massey, 160 Or App 197, 199 , 981 P2d 352 (1999) (evidence that defendant had worked as a paral

2014Rodriguez also involved a warrantless search, 317 Or at 29 , but one conducted when the defendant spontaneously volunteered consent to a search of his apartment after he was arrested, had received Miranda warnings, and was asked whether he had any guns or drugs in his apartment, id. at 30 .

2014Rodriguez also involved a warrantless search, 317 Or at 29 , but one conducted when the defendant spontaneously volunteered consent to a search of his apartment after he was arrested, had received Miranda warnings, and was asked whether he had any guns or drugs in his apartment, id. at 30 .

2014See, e.g., State v. Erb, 256 Or App 416, 423 , 300 P3d 270 (2013) (defendant’s written waiver of counsel, which stated that she was “aware of the help a lawyer might be to me,” was insufficient to establish that the defendant was aware of the risks of self-representation); State v. Reed, 247 Or App 155, 161-62 , 268 P3d 756 (2011) (evidence that defendant had appeared at prior probation violation hearings, both with and without counsel, was insufficient to show a knowing waiver of counsel); State v. Massey, 160 Or App 197, 199 , 981 P2d 352 (1999) (evidence that defendant had worked as a paral

2014See, e.g., State v. Erb, 256 Or App 416, 423 , 300 P3d 270 (2013) (defendant’s written waiver of counsel, which stated that she was “aware of the help a lawyer might be to me,” was insufficient to establish that the defendant was aware of the risks of self-representation); State v. Reed, 247 Or App 155, 161-62 , 268 P3d 756 (2011) (evidence that defendant had appeared at prior probation violation hearings, both with and without counsel, was insufficient to show a knowing waiver of counsel); State v. Massey, 160 Or App 197, 199 , 981 P2d 352 (1999) (evidence that defendant had worked as a paral

2014As we recently observed in State v. Marshall, 254 Or App 419 , 428 n 10, 295 P3d 128 (2013), although a case involving a waiver of constitutional rights in the search and seizure context under Article I, section 9, can have some commonality with a case involving a waiver of rights against self-incrimination in the Article I, section 12, context, it is important to remember a significant difference between the two: “valid waiver of an accused’s right against self-incrimination under Article I, section 12, of the Oregon Constitution must be both knowing and voluntary, whereas valid consent to se

2014As we recently observed in State v. Marshall, 254 Or App 419 , 428 n 10, 295 P3d 128 (2013), although a case involving a waiver of constitutional rights in the search and seizure context under Article I, section 9, can have some commonality with a case involving a waiver of rights against self-incrimination in the Article I, section 12, context, it is important to remember a significant difference between the two: “valid waiver of an accused’s right against self-incrimination under Article I, section 12, of the Oregon Constitution must be both knowing and voluntary, whereas valid consent to se

2005Probst, 192 Or App at 351 .