Oregon Defense Investigator under No Duty to Reveal Identity to Victim

The Oregon Court of Appeals reversed the revocation of a private investigator's license for failing to tell a crime victim that he worked for a criminal defense attorney.

Throughout the 1990s, Oregon crime victim groups succeeded in enshrining many "victims' rights" in the Oregon Constitution and statutes. Among those is a constitutional "right to refuse an interview ... requested by the criminal defendant or other person acting on behalf of the criminal defendant." Additionally, ORS 135.970(2) mandates that "if contacted by the defense, the victim must be clearly informed by the defendant's attorney ... of the identity and capacity of the person contacting the victim, that the victim does not have to talk to the defendant's attorney, or other agents of the defendant, or provide other discovery ... and that the victim may have a district attorney present during any interview."

In October 2007, Lance Johnson was granted a private investigator license by the Oregon Department of Public Safety Standards and Training (DPSST). He then worked for private defense attorneys who represent indigent criminal defendants.

In August 2009, DPSST initiated action to revoke Johnson's license, alleging that he had contact with four separate victims in violation of ORS 135.970(2), the Oregon Constitution and DPSST's ethical rules.

At a May 3, 2010 hearing, Detective Mott, a City of Dallas police officer, testified about his involvement in State v. Benkle, a sex abuse case that Johnson worked on as a defense investigator.

Mott testified that victims told him that an investigator misrepresented himself as a police officer. Mott claimed to have determined that the investigator was Johnson. Mott also testified that he personally observed Johnson misrepresent himself to a victim as working for the City of Dallas and the State of Oregon.

The hearings officer found that Johnson violated ORS 135.970(2) and the Oregon Constitution and had acted unethically by giving "an impression that (he was) connected ... with law enforcement or other governmental agency." The hearings officer concluded that revocation of Johnson's license and the imposition of a $1,000 civil penalty and $12,438 in costs were appropriate sanctions for his misconduct.

On September 27, 2010, Johnson moved to reopen the hearing and reconsider, based on new evidence which exonerated him of the charged misconduct. Specifically, he offered new statements from the Benkle victims that they had never met Johnson. He also offered a witness statement discrediting the complaining victim in State v. Young, one of the other cases.

On December 16, 2010, DPSST denied Johnson's motion, concluding that he had "not shown good cause why the new evidence ... could not have been presented at the hearing."

The Oregon Court of Appeals reversed, agreeing with Johnson that neither the Oregon Constitution nor ORS 135.970(2) imposes a duty upon him to inform victims that he works for the defense.

"A crime victim's [Constitutional] right to refuse an interview request does not incorporate or imply that a person requesting the interview has a duty to inform the victim of that right, any more than a person's right to be free from unreasonable searches means that a police officer has a duty to inform a person of that right when requesting consent to search," the court held.

Likewise, the plain language of ORS 135.970(2) imposes the duty on "the defendant's attorney," the court noted, "not 'the defense' or 'other agents of the defendant.'" As such, the appellate court concluded "that the voters did not intend to impose an obligation on anyone other than 'the defendant's attorney.'" Therefore, Johnson did not violate either the Oregon Constitution or ORS 135.970(2). See: Johnson v. DPSST, 293 P.3d 228 (Or. Ct. App. 2012).

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