When the State Wants to Offer the GJ Testimony Under the Child Abuse Hearsay Exception

Latest revision as of 15:18, August 21, 2024

This analysis applies to GJ testimony offered under OEC 803(18a)(b) but also prior trial testimony if the case is back from appeal or post-conviction.

I don't know how widespread the practice is. I know it is fairly routine in Washington County child sex cases for the DA's office to offer at trial the child's testimony from GJ. (If you haven't looked closely at the notice they've filed out there, you might want to do so.) I know it has been done in Multnomah County and at least once in Clackamas County. If the practice hasn't gotten around to the rest of the state yet, it will.

For those of you on the OCDLA listserve, you have probably seen the motion I've been sending around that challenges the admission of anything but the "disclosure," that is, the initial statement or two by the child. That argument would theoretically exclude the forensic interview of the child, especially when nothing new is learned or gained in the interview and it's the fourth or fifth time the child has talked about it.

The argument for exclusion is two-fold. One, it is beyond the scope of what the statute intended. The primary purpose of the statute is to help the jury evaluate the circumstances under which the child revealed the abuse and their demeanor when they did so. That would not apply, in theory, to situations where the child repeats the allegations. The second argument for exclusion is OEC 403, specifically, that repetition of essentially the same testimony is highly prejudicial because people will believe things not from any persuasive logic but because they've heard it repeated multiple times. E-mail me if you need those motions.

Both of those arguments have much greater force when applied to a child's GJ testimony and/or prior trial testimony.

But what if we're wrong? Is there an alternative argument to be made that perhaps wouldn't accomplish as much but still increase the fairness of the trial? Let's focus just on the scope of 803(18a)(b) argument. I think we will always be the underdog with regard to the argument that the child abuse hearsay exception does not apply to forensic interviews. It is just too familiar, too much a part of the legal landscape, and there is a belief -- which I increasingly find without merit -- that these interviews have evidentiary value. At the same time, I think trial courts will be more sympathetic to the argument that the legislature didn't intend the hearsay exception to GJ testimony or prior trial testimony, which is a relatively new addition to prosecutorial strategy and any evidentiary value is even less, well, evident.

So assume we lose the argument with regard to the forensic interview. Is there are limiting principal that would exclude the GJ testimony as a matter of law (and not just under OEC 403)?

I think there is. I think a reasonable line can be drawn between initial statements to family, friends, and law enforcement made for the purpose of investigation (and I'm including the forensic interviews in the latter group), and statements made to authority figures that aren't for any investigatory purpose. (And to be clear, the GJ is not being used an investigative body in these cases. The investigation has been completed by then.)

I like this distinction because it relies on common sense. First, it makes sense that there is a limiting principal of some sort. If not, the state could admit a hundred statements made before the child turned 18. It is reasonable to assume the legislature intended some rational limit. If the legislature did intend a limit, limiting statements to law enforcement that are made for an investigatory purpose is an entirely reasonable limit. And even if the trial court is not entirely convinced, at the very least, making this argument will help indirectly on the OEC 403 argument you'd also be making.