Oregon Supreme Court - Feb. 13, 2014

by: Abassos and Alex Collins • February 13, 2014 • no comments

Forfeiture by wrongdoing (OEC 803(3)(g)) - Intent to Block Declarant Need Not be Primary (or only) Intent

Under the “forfeiture by wrongdoing” exception, hearsay is admissible if a preponderance of the evidence supports that the defendant engaged in wrongful conduct with the intent of preventing the declarant from providing information to the state. The court defines “witness” as “one who gives evidence regarding matters of fact under inquiry.” Accordingly, the defendant need not act in contemplation of trial for the exception to apply. Here, the defendant was on trial for killing his wife. The trial court admitted statements and notes made by his wife to get a restraining order against him. It held the exception to apply because one reason the defendant killed his wife was to keep her from reporting his restraining order violation.

Also, OEC 804 (3) (g) does not require an independent guarantee of reliability. Here, the court holds that no additional inquiry into reliability necessary under OEC 804 (3) (g) because evidence will only be admitted if it: (1) is relevant under OEC 401; (2) is more probative than prejudicial under OEC 403; and (3) does not violate Due Process under the Fourteenth Amendment. Accordingly, there is no need to require as part of OEC 804 (3) (g) that any hearsay statements admitted pursuant to that exception contain independent guarantees of reliability.