State v. Benson

• Court: Oregon Court of Appeals
• Area(s) of Law: Criminal Procedure
• Date Filed: 10-26-2010
• Case #: A141929
• Judge(s)/Court Below: Armstrong, J. for the Court; Haselton, P.J.; & Brewer, C.J.

It is plain error when the court, in the presence of the jury, asks whether a defendant understands his right to silence, because OEC 513(2) requires that proceedings, where practical, be kept outside the knowledge of the jury.

Defendant was convicted of harassment under ORS 166.065 and now appeals, asserting that the trial court erred when it inquired in the presence of the jury whether he understood his constitutional right to silence in choosing not to invoke it. Held, the terms used by the court constituted plain error in violation of OEC 513(2), which requires proceedings be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury. Reversed and remanded.

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