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The Scope of OEC 803(18)(a)(b)

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by: Ryan Scott • November 4, 2023 • no comments

An increasingly common situation is arising in child sex cases that are reversed by the appellate or in PCR. The state seeks to offer the prior trial testimony of the complaining witness under a hearsay exception of OEC 803(18)(a)(b).

There are a couple of arguments worth making in response. The first is the purpose of OEC 803(a)(b) is so that the jury can evaluate the nature of the "disclosure." This is what State v. Hobbs, 218 Or App 298, 305, 179 P3d 682 (2008) stated. The statute is written quite broadly, but the scope of a statute can be narrowed by legislative intent. (State v. Gaines.) If legislative intent is simply to help the jury understand how and under what circumstances the disclosure was made, the next question becomes, "what is a disclosure?" Is it any discussion of the alleged crimes? Or is it when the child reveals something new and different? And is trial testimony -- at which point the child has told multiple people, from family, to CARES NW, to the police, to the DA, to the Grand Jury -- really a disclosure? If not, then the prior testimony shouldn't be admitted.

If the hearsay exception allows it, then there is a question whether it is admissible under OEC 403. The argument here is that the cumulative nature of the testimony is inherently prejudicial because people are more likely to believe false things when they are repeated.

The mechanism for how repetition impacts credibility was explained in How Liars Create the Illusion of Truth by Tom Stafford.

“Repeat a lie often enough and it becomes the truth”, is a law of propaganda often attributed to the Nazi Joseph Goebbels. Among psychologists something like this known as the "illusion of truth" effect. Here's how a typical experiment on the effect works: participants rate how true trivia items are, things like "A prune is a dried plum". Sometimes these items are true (like that one), but sometimes participants see a parallel version which isn't true (something like "A date is a dried plum"). After a break – of minutes or even weeks – the participants do the procedure again, but this time some :of the items they rate are new, and some they saw before in the first phase. The key finding is that people tend to rate items they've seen before as more likely to be true, regardless of whether they are true or not, and seemingly for the sole reason that they are more familiar.

Id. [Bold added.]

If the judge overrules the objection to the admission of the trial testimony, how much of the prior testimony should come in? The state will usually argue it all is admissible, and it will cite Hobbs, 218 Or App 298, 305, 179 P3d 682 (2008) as authority. But Hobbs does not go nearly as far as the state will likely claim. At issue in Hobbs was the victim's diary. The Hobbs court described it as follows:

[T]he entire document is about the events leading up to the abuse, the abuse itself, and the victim's feelings during and after that time. The journal paints the picture of a developing sexual relationship between defendant and the victim, beginning with his questions about kissing and culminating in the charged acts of abuse, and includes an account of the victim's emotional reaction to the changing relationship.

Hobbs, 218 Or at 307.

The appellate court noted that the type of disclosure at issue was within the scope of what the legislature intended. However, the Court also noted the full scope of the hearsay exception is unknown. The Court noted that "the outer limits of a statement 'concerning an act of abuse' may not be clear. . ." Id. at 305. The Court specifically said it did not need to decide those limits in that case. Id. It found the portions of the diary fell within the scope of the exception "regardless of any textual ambiguities regarding the scope of a statement 'concerning an act of abuse. . . .'" Id. at 306.

I suspect large portions of the original trial testimony will blow past the reasonable limits of the hearsay exception. I recommend making a specific objection to individual statements in the testimony (again, assuming it is not kept out as a whole.)

And you may want to apply those limits to the CARES NW, Liberty House or Children's Center interviews. As the COA state, we don't yet know the limits of OEC 803(18)(a)(b). Which means it's all the more likely a well-preserved objection will result in an appellate decision that will provide clarity (and maybe get the convictions overturned.)