by Mark Wilson

The Oregon Court of Appeals reversed a lower court’s dismissal of a criminal proceeding when the victim refused to comply with a subpoena to appear for trial.

Alex David Murray Lorenzo was charged with attempted third-degree assault, constituting domestic violence, for attempting to physically injure his stepfather. The case proceeded to trial, and the prosecution subpoenaed the victim as a witness against Lorenzo.

As trial began, however, the prosecutor revealed that the victim had called about 20 minutes earlier, claiming that he could not attend trial. Lorenzo moved to dismiss the charges, arguing that the victim was under subpoena and needed to appear. “If he is actually out of state or is on his way out of state and calls in and gives a false reason, he’s clearly manipulating the system not wanting to be here,” Lorenzo said.

Oregon Rule of Civil Procedure (ORCP) 55G applies to criminal proceedings pursuant to ORS 136.600 and provides, in part, that “if the witness is a party and disobeys a subpoena ... such party’s complaint, answer, or reply may be stricken.”

Lorenzo acknowledged that although victims are not “technically a party” to an Oregon criminal proceeding, “all victims are ‘de facto parties’ based on the ‘Victims’ Rights Act,’” which enshrines numerous victims’ rights in Article I, §§ 42 and 43, of the Oregon Constitution.

The trial court agreed with Lorenzo. “A continuance in this context would penalize the defendant, not the victim,” the court observed. “It would effectively condone the victim’s choice not to appear.”

The trial court dismissed the charges pursuant to ORCP 55G. “In the criminal context in which this applies under ORS 136.600, although the victim is not technically a party to the case,” the court found that “the victim’s elevated constitutional status and inextricable connection to the State’s decision to file charges, makes them the equivalent of a party in a criminal case context.”

The Oregon Court of Appeals reversed, concluding that victims are not parties to Oregon criminal proceedings, and therefore, ORCP 55G does not authorize dismissal of the state’s charging instrument when the victim disobeys a subpoena.

The court first observed that under ORS 131.025 there are only two parties to a criminal proceeding: “the State of Oregon is the plaintiff and the person prosecuted is the defendant.”

The court found “no support for” the trial court’s conclusion that “the victim’s elevated constitutional status and inextricable connection to the State’s decision to file criminal charges, makes them the equivalent of a party in a criminal case context.”

“The court is correct that, in Oregon, a crime victim has rights protected by the constitution,” the Court acknowledged. “None of those constitutional rights, however, purport to make the victim a party to the criminal action.” See: State v. Lorenzo, 301 Or App 713, _ P3d _ (Or App 2020).

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