Brown test in Oregon

2025Cite as 345 Or App 415 (2025) 423 The third and fourth Brown factors are the “[c]ollat- eral consequences” and the “punitive significance” of the pro- ceeding, including whether the judgment “carries stigmatiz- ing or condemnatory significance.” Brown, 280 Or at 105-06 .

2025Cite as 345 Or App 415 (2025) 423 The third and fourth Brown factors are the “[c]ollateral consequences” and the “punitive significance” of the pro- ceeding, including whether the judgment “carries stigmatiz- ing or condemnatory significance.” Brown, 280 Or at 105-06 .

2025Cite as 345 Or App 415 (2025) 423 The third and fourth Brown factors are the “[c]ollat- eral consequences” and the “punitive significance” of the pro- ceeding, including whether the judgment “carries stigmatiz- ing or condemnatory significance.” Brown, 280 Or at 105-06 .

2025Cite as 345 Or App 415 (2025) 423 The third and fourth Brown factors are the “[c]ollateral consequences” and the “punitive significance” of the pro- ceeding, including whether the judgment “carries stigmatiz- ing or condemnatory significance.” Brown, 280 Or at 105-06 .

2015State v. Brown, 297 Or 404, 417 , 687 P2d 751 (1984), sets out seven factors “to be considered as guidelines” in evaluating the probative value and reliability of proffered scientific evidence under OEC 401, OEC 403, and OEC 702: “(1) The technique’s general acceptance in the field; (2) The expert’s qualifications and stature; (3) The use which has been made of the technique; (4) The potential rate of error; (5) The existence of specialized literature; (6) The novelty of the invention; and (7) The extent to which the technique relies on the subjective interpretation of the expert.” State v. O’

2015State v. Brown, 297 Or 404, 417 , 687 P2d 751 (1984), sets out seven factors “to be considered as guidelines” in evaluating the probative value and reliability of proffered scientific evidence under OEC 401, OEC 403, and OEC 702: “(1) The technique’s general acceptance in the field; (2) The expert’s qualifications and stature; (3) The use which has been made of the technique; (4) The potential rate of error; (5) The existence of specialized literature; (6) The novelty of the invention; and (7) The extent to which the technique relies on the subjective interpretation of the expert.” State v. O’

2014That authority notwithstanding, the state asserts that the Supreme Court’s decision in Hudson v. Michigan, 547 US 586 , 126 S Ct 2159 , 165 L Ed 2d 56 (2006), marked a significant departure from the Brown framework for *499 analyzing attenuation and that Hudson , instead, governs the analysis in this case.

2014That authority notwithstanding, the state asserts that the Supreme Court’s decision in Hudson v. Michigan, 547 US 586 , 126 S Ct 2159 , 165 L Ed 2d 56 (2006), marked a significant departure from the Brown framework for *499 analyzing attenuation and that Hudson , instead, governs the analysis in this case.

2014Brown, 422 US at 603 .

2014Brown, 422 US at 603 .

2014By excluding evidence in such circumstances, some deterrence value is attained, even if it is not as great as where obtaining the evidence was a particular objective of the unlawful detention, because applying the rule admonishes the police to operate within the bounds of the law. 13 We note that, in State v. Unger, 356 Or 59 , 333 P3d 1009 (2014), this court applied factors similar to the Brown factors in conducting an attenuation analysis under Article I, section 9, of the Oregon Constitution, in the context of a consent search that was preceded by unlawful police conduct.

2014By excluding evidence in such circumstances, some deterrence value is attained, even if it is not as great as where obtaining the evidence was a particular objective of the unlawful detention, because applying the rule admonishes the police to operate within the bounds of the law. 13 We note that, in State v. Unger, 356 Or 59 , 333 P3d 1009 (2014), this court applied factors similar to the Brown factors in conducting an attenuation analysis under Article I, section 9, of the Oregon Constitution, in the context of a consent search that was preceded by unlawful police conduct.

1999However, the criteria relevant to the Brown analysis are offense-specific, 280 Or at 102-08 , and do not apply to the present challenge.” Reynolds, 317 Or at 565 -66 n 3 (emphasis in original).

1999However, the criteria relevant to the Brown analysis are offense-specific, 280 Or at 102-08 , and do not apply to the present challenge.” Reynolds, 317 Or at 565 -66 n 3 (emphasis in original).

1998Hilaire, 97 Or.App. 108 , 775 P.2d 876 (1989) (applying the Brown test to "sex abuse syndrome"), we should not compound that error here. [2] The Brown test should be used only where the relevancy *60 question is based on novel methods of gathering evidence, not simply on novel evidence.

1998Hilaire, 97 Or.App. 108 , 775 P.2d 876 (1989) (applying the Brown test to "sex abuse syndrome"), we should not compound that error here. [2] The Brown test should be used only where the relevancy *60 question is based on novel methods of gathering evidence, not simply on novel evidence.

1998Moreover, the Brown factors focus on whether scientific evidence has a level of reliability sufficient for it to have probative value and are not to be used to determine whether `the evidence reflects or rests on a certain or indisputably correct scientific proposition.' Boger v. Norris & Stevens, Inc., 109 Or.

1998Moreover, the Brown factors focus on whether scientific evidence has a level of reliability sufficient for it to have probative value and are not to be used to determine whether `the evidence reflects or rests on a certain or indisputably correct scientific proposition.' Boger v. Norris & Stevens, Inc., 109 Or.

1975It was further noted that in State v. Huennekens, 245 Or 150, 152 , 420 P2d 384 (1966), we held that under ORS 132.560(2), “to be joined the charges must relate *564 to conduct or acts that are concatenated in time, place and circumstances and that the evidence of one charge would be relevant and admissible with the evidence of other charges.” This test of joinable charges, based upon relevance and admissibility, was rejected as being too broad in State v. Fitzgerald, 267 Or 266, 273 , 516 P2d 1280 (1973), and a new definition of joinability was fashioned as follows: “We hold that the two char

1975It was further noted that in State v. Huennekens, 245 Or 150, 152 , 420 P2d 384 (1966), we held that under ORS 132.560(2), “to be joined the charges must relate *564 to conduct or acts that are concatenated in time, place and circumstances and that the evidence of one charge would be relevant and admissible with the evidence of other charges.” This test of joinable charges, based upon relevance and admissibility, was rejected as being too broad in State v. Fitzgerald, 267 Or 266, 273 , 516 P2d 1280 (1973), and a new definition of joinability was fashioned as follows: “We hold that the two char

1975Finding no guidelines in our opinions, the Court of Appeals, in State v. Sanchez, 14 Or App 234, 237 , 511 P2d 1231 (1973), Supreme Court rev. den., ventured the hypothesis that “the Supreme Court intended that what constitutes a criminal transaction for purposes of ORS 132.560(2) ③ also constitutes a criminal transaction for purposes of the Brown rule.” This conclusion was reached principally upon the ground that in Brown the court noted that the two offenses involved in that case could have been joined under ORS 132.560(2), the permissive joinder statute.

1975Finding no guidelines in our opinions, the Court of Appeals, in State v. Sanchez, 14 Or App 234, 237 , 511 P2d 1231 (1973), Supreme Court rev. den., ventured the hypothesis that “the Supreme Court intended that what constitutes a criminal transaction for purposes of ORS 132.560(2) ③ also constitutes a criminal transaction for purposes of the Brown rule.” This conclusion was reached principally upon the ground that in Brown the court noted that the two offenses involved in that case could have been joined under ORS 132.560(2), the permissive joinder statute.

1975It was further noted that in State v. Huennekens, 245 Or 150, 152 , 420 P2d 384 (1966), we held that under ORS 132.560(2), “to be joined the charges must relate *564 to conduct or acts that are concatenated in time, place and circumstances and that the evidence of one charge would be relevant and admissible with the evidence of other charges.” This test of joinable charges, based upon relevance and admissibility, was rejected as being too broad in State v. Fitzgerald, 267 Or 266, 273 , 516 P2d 1280 (1973), and a new definition of joinability was fashioned as follows: “We hold that the two char

1975It was further noted that in State v. Huennekens, 245 Or 150, 152 , 420 P2d 384 (1966), we held that under ORS 132.560(2), “to be joined the charges must relate *564 to conduct or acts that are concatenated in time, place and circumstances and that the evidence of one charge would be relevant and admissible with the evidence of other charges.” This test of joinable charges, based upon relevance and admissibility, was rejected as being too broad in State v. Fitzgerald, 267 Or 266, 273 , 516 P2d 1280 (1973), and a new definition of joinability was fashioned as follows: “We hold that the two char

1974The Chief Justice specially-concurred, indicating that he felt that the Brown principle would have applied in the Fair case except for the lack of retroactivity, and calling for legislation to allow amendments to indictments, saying: «*= * « jf this step is not taken, we perpetuate in Oregon rules of criminal procedure under which an accused is permitted to go free because of a legal error in the course of the proceedings even though his guilt or innocence has not been passed upon by the jury.” 263 Or at 391-92 .

1973State v. Brown, 262 Or 442 , 497 P2d 1191 (1972), the Oregon Supreme Court held the Brown rule not retroactive in State v. Fair, 263 Or 383 , 502 P2d 1150 (1972) Under pre-Brown decisions, petitioner’s double jeopardy contentions have no merit.

2022In State v. Leverich, we held that for purposes of the Brown analysis, the proper time to test prosecutorial knowl- edge was when the first charge goes to trial, not when the first charge is initiated. 14 Or App 222, 230 , 511 P2d 1265 (1973), aff’d, 269 Or 45 , 522 P2d 1390 (1974); see also State v. Allen, 16 Or App 456, 460 , 518 P2d 1332 , rev den (1974) (deciding prosecutorial knowledge at the time defendant pleaded guilty to the driving with a suspended operator’s license charge).

2022In State v. Leverich, we held that for purposes of the Brown analysis, the proper time to test prosecutorial knowl- edge was when the first charge goes to trial, not when the first charge is initiated. 14 Or App 222, 230 , 511 P2d 1265 (1973), aff’d, 269 Or 45 , 522 P2d 1390 (1974); see also State v. Allen, 16 Or App 456, 460 , 518 P2d 1332 , rev den (1974) (deciding prosecutorial knowledge at the time defendant pleaded guilty to the driving with a suspended operator’s license charge).

2022In State v. Leverich, we held that for purposes of the Brown analysis, the proper time to test prosecutorial knowl- edge was when the first charge goes to trial, not when the first charge is initiated. 14 Or App 222, 230 , 511 P2d 1265 (1973), aff’d, 269 Or 45 , 522 P2d 1390 (1974); see also State v. Allen, 16 Or App 456, 460 , 518 P2d 1332 , rev den (1974) (deciding prosecutorial knowledge at the time defendant pleaded guilty to the driving with a suspended operator’s license charge).

2022In State v. Leverich, we held that for purposes of the Brown analysis, the proper time to test prosecutorial knowl- edge was when the first charge goes to trial, not when the first charge is initiated. 14 Or App 222, 230 , 511 P2d 1265 (1973), aff’d, 269 Or 45 , 522 P2d 1390 (1974); see also State v. Allen, 16 Or App 456, 460 , 518 P2d 1332 , rev den (1974) (deciding prosecutorial knowledge at the time defendant pleaded guilty to the driving with a suspended operator’s license charge).

2022Subsequently, in State v. Matischeck, citing Leverich, we held that “the proper time to test prosecutorial knowledge was the time when the first charge goes to trial or a guilty plea is entered.” 20 Or App 332, 336 , 531 P2d 737 , modified on recons, 21 Or App 300 , 535 P2d 102 (1975) (emphasis added).

2022Subsequently, in State v. Matischeck, citing Leverich, we held that “the proper time to test prosecutorial knowledge was the time when the first charge goes to trial or a guilty plea is entered.” 20 Or App 332, 336 , 531 P2d 737 , modified on recons, 21 Or App 300 , 535 P2d 102 (1975) (emphasis added).

2022Subsequently, in State v. Matischeck, citing Leverich, we held that “the proper time to test prosecutorial knowledge was the time when the first charge goes to trial or a guilty plea is entered.” 20 Or App 332, 336 , 531 P2d 737 , modified on recons, 21 Or App 300 , 535 P2d 102 (1975) (emphasis added).

2022Subsequently, in State v. Matischeck, citing Leverich, we held that “the proper time to test prosecutorial knowledge was the time when the first charge goes to trial or a guilty plea is entered.” 20 Or App 332, 336 , 531 P2d 737 , modified on recons, 21 Or App 300 , 535 P2d 102 (1975) (emphasis added).

2021Id. at 245 .

2021The court noted that the officer had seen the van being driven shortly before he searched it, that the officer “had not impounded the van,” and that “there was no physical or mechanical impediment to the van’s being driven away once [the officer] relinquished control over it.” Meharry II, 342 Or at 180 .

2021The court noted that the officer had seen the van being driven shortly before he searched it, that the officer “had not impounded the van,” and that “there was no physical or mechanical impediment to the van’s being driven away once [the officer] relinquished control over it.” Meharry II, 342 Or at 180 .

2019The state does not argue that defendant's objection was overly broad in the sense that this court has discussed in cases such as State v. Brown , 310 Or. 347 , 358-59, 800 P.2d 259 (1990), in which we stated that when "objection is made to the evidence as a whole and is overruled, the trial court will ordinarily not be reversed on appeal if any portion of the offered evidence was properly admissible, despite the fact that other portions would not have been admissible had proper objections been made to such portions of the offered evidence." In any event, we conclude that the Brown rule is not

2019The state does not argue that defendant's objection was overly broad in the sense that this court has discussed in cases such as State v. Brown , 310 Or. 347 , 358-59, 800 P.2d 259 (1990), in which we stated that when "objection is made to the evidence as a whole and is overruled, the trial court will ordinarily not be reversed on appeal if any portion of the offered evidence was properly admissible, despite the fact that other portions would not have been admissible had proper objections been made to such portions of the offered evidence." In any event, we conclude that the Brown rule is not