State v. Wilcher

A defendant’s right to be heard “by himself” is fully exercised by testifying under oath as a witness, and does not include the right to make an unsworn statement to the jury during the case-in-chief.

Defendant appealed his convictions for murder, assault in the second degree, unlawful possession of methamphetamine, robbery in the first degree and robbery in the second degree. Defendant argued that the trial court violated his right “to be heard by himself” guaranteed under Article I, Section 11 of the Oregon Constitution because it declined to allow Defendant to make an unsworn statement to the jury during trial. Defendant argued that the framers of the Oregon Constitution intended to allow defendant's the right to make an unsworn statement during their case in chief because at the time of drafting defendant's were not allowed to testify on their own behalf. Defendant argued that State v. Rogers, 330 Or. 282 (2000) held that a defendant’s right to be heard “by himself” by making an unsworn statement was guaranteed throughout the entirety of the trial. The Court in the instant case held that Rogers was narrowly applicable to unsworn testimony during the penalty phase, and Defendant’s right to be heard was fully exercised by giving sworn testimony under oath as a witness. Affirmed.