Exclusion of Child Witness Interviews
by: Bronson D. James • March 13, 2011 • no comments
Southard and Lupoli both helped curb the excesses witnessed in complex sex crime prosecutions, but there is still work to be done to level the playing field. I've just filed the briefing in another case which may further develop the CARES jurisprudence. I've taken one of the arguments raised in that case and reworked it into a motion format for your use.
As you know if you try sex crime cases, the video of the CARES interview is incredibly damaging. And, it is perhaps the single best piece of evidence the state has. Why? Because it is functionally testimony, but the only testimony in the case that goes back to the jury room during deliberations and gets repeated, ad infinitum, at the expense of any other version of events. The tape, constructed by the state, for the state, becomes the echo chamber reinforcing the state's version of events, and drowning out all other sound.
I've seen many folks try to fight admission of the tape in cases, but no coherent argument ever developed. Most important, the arguments that did develop lacked a grounding in Oregon law, and lacked critical support in the area of harmless error. Most relied on the last grasp of the desperate - fairness.
Well, it turns out after a lot of research, that we do have a basis in Oregon law for excluding this video, and it also turns out that many, many, other jurisdictions prohibit these videos from going to the jury. For state grounding, we look to ORS 136.530, which states that testimony in criminal trials shall only be orally, and in-court. We then further look to ORCP 50C (one of the few ORCPs made applicable to criminal trials) which prohibits the jury from taking depositions with them to the jury room. Finally, we look to OEC403 and use the multi-jurisdictional analysis to show prejudice.
This argument works best when facing a trial where both the victim, and the CARES doctor will be called to testify. This makes the video less probative, which naturally lends strength to the OEC403 argument. However, it can be applied even where the victim doesn't testify, under a purely ORS and ORCP argument.
The motion is contained in the resources section of my firm's website. There are a few other motions there, and we will continue to publish motions in that location and share them. As new ones develop I will let people know. Hopefully they are marginally useful.
