Beware of slippery jury instructions

The prosecutor will do many things to hurt defendants in criminal cases.  Sometimes, they will even attempt to get the court to issue unconstitutional jury instructions.

In the recent Oregon Supreme Court case Oregon v. Schwab (9/16/2010), Justice Kistler’s concurring opinion pointed out that prosecutors in some Oregon counties are increasingly confronted defendants with an unconstitutional jury instruction that requires the jury to find that an attempted transfer of drugs had occurred solely because the amount of drugs was consistent with the amounts in instances of drug trafficking.

This type of jury instruction, which converts a permissible inference into a mandatory finding, violates the due process clause of the U.S. Constitution, and defendants should not stand for it!