Why Isn't This Challenged More Often?
by: Ryan • November 13, 2013 • no comments
As lawyers know, but many lay people are surprised to learn, hearsay can be admitted into evidence at trial. Out-of-court statements that are often admitted are those that fall under the domestic violence hearsay exception.
Hearsay is an out-of-court statement offered to prove the truth of thematter asserted and is inadmissible unless an exception to the rule against hearsay applies. OEC 801(3); OEC 802. OEC 803(26) provides an exception for hearsay regarding a victim’s report of domestic violence. For that exception to apply, the proponent of the evidence must establish that the hearsay statement: (1) describes an incident of domestic violence as defined in ORS 135.230(3)-(4); (2) was made by the victim within 24 hours of the incident; (3) was recorded or made to a peace officer; and (4) “[h]as sufficient indicia of reliability.” OEC 803(26); State v. Wilcox, 180 Or App 557, 560-61, 43 P3d 1182, rev den , 334 Or 557 (2002). See also State v. Hasson, 153 Or App 527, 530, 958 P2d 183 (1998) (proponent of evidence must establish by a preponderance of the evidence that an exception to the hearsay rule applies).
The issue is often moot if the complainant fails to show up for trial, but when the complainant does show up, very few attorneys, as far as I can tell, actually challenge the reliability of the hearsay via a 104 hearing, outside the presence of the jury. It can be raised pre-trial, because, as noted above, a DV hearsay statement which lacks indicia of reliability is inadmissible.
OEC 803(26) lists factors for determining reliability, including whether the victim speaks from personal knowledge, whether the victim’s statements are corroborated by other evidence, whether the statement is made close-in-time to the incident, whether the statement was elicited by leading questions, and whether the victim subsequently recanted. OEC 803(26)(b)(A)-(E). Recantation alone, absent other indicia of unreliability, is expressly insufficient to deny admission under OEC 803(26). OEC 803(26)(b)(E).
Given the nature of such statements, that they are made during times of stress and anger, that often the declarant has been drinking, and the frequency of recantation, the challenge should be made frequently to the reliability. Even if the defense attorney loses the argument, they've still had the collateral benefit of questioning the state's primary witness before the jury is seated.
I base my conclusion that attorneys aren't challenging this as often as they should in part because of the infrequency of appellate cases on the topic. When was the last time the COA wrote an opinion on "indicia of reliability?" It's not common. That's not the only reason I draw the inference that I do, but it's a big part of it.
I bring this up in part because I believe that tomorrow the COA will issue an opinion on this issue. [Updated: AWOP'd.]
