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It usually takes awhile before issues of first impression start winning. This is the exception.

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by: Ryan Scott • November 15, 2023 • no comments

Everyone knows my favorite legal issues involve arguments that aren't the law . . . yet. I have a personal list of arguments that I promoted that initially met with great resistance from the courts, prosecutors and other defense lawyers. Not all defense lawyers, but a lot. The most common argument I hear is that a number of defense lawyers are concerned that if they argue an issue that isn't firmly rooted in case law, they lose credibility with the judge. I disagree, for any number of reasons, but I've heard the argument enough that I know it's a real thing.

But one issue I came up with last year won the first time it was argued and it hasn't stopped. Unfortunately, it's something that -- in many cases -- the state can fix, and they've started doing so. But there are exceptions and often those exceptions arise in cases back from the appeal or PCR, and if properly raised, the issue can substantially undermine the state's case.

ORS 136.583(7) allows a party to offer business records without the live testimony of the custodian if certain conditions are met. The primary requirement is that the custodian provides either an affidavit or a declaration with language that satisfies the business record exception (OEC 803(6)) to the hearsay rule.

The statute also provides a definition of a declaration:

(c) “Declaration” means a declaration under penalty of perjury under ORCP 1 E or an unsworn declaration under ORS 194.800 to 194.835, if the declarant is physically outside the boundaries of the United States. ORS 136.583(11)(c).

In turn, ORCP 1E states in relevant part:

Use of declaration under penalty of perjury in lieu of affidavit.

E(1) Definition. As used in these rules, “declaration” means a declaration under penalty of perjury. A declaration may be used in lieu of any affidavit required or allowed by these rules. A declaration may be made without notice to adverse parties.

E(2) Declaration made within the United States. A declaration made within the United States must be signed by the declarant and must include the following sentence in prominent letters immediately above the signature of the declarant: “I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury. [Bold added.]

As far as I can tell, that bolded language "I understand it is made for use as evidence in court" is a uniquely Oregon requirement. Thus, when Google or Facebook or T-Mobile attached their standard declaration -- which was written to comply with the federal rule of evidence and probably every state other than Oregon -- it often doesn't have that bolded language.

The first time I objected to a declaration on this basis, it won. And to my knowledge, if the declaration is missing that language, no judge has failed to sustain an objection. But it is something that can often be remedied. Prosecutors started getting new declarations -- which might be a problem if the new declaration wasn't written by the person who compiled the information in the first place -- or have started getting the original declaration with the Oregon-required language.

But where this is a live issue is in cases that have gotten old, for whatever reason. T-Mobile, Google and Facebook don't keep their records forever (unless the state has sent them a preservation letter, which itself might be unconstitutional.) It may not be possible for the state to comply with the hearsay exception when the records no longer exist and the only evidence they did exist is a legally flawed declaration.

The state may eventually get the evidence in, but an objection that takes you five minutes to draft may require the state to spend hours fixing, and if the prospect of which doesn't get you a better deal, it might get you an issue for appeal.