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

by: Ryan Scott • August 19, 2024 • no comments

This analysis applies to both 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 would theoretically encompass 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 is two-fold. One, it is beyond the scope of what the statute intended, which is that one of the purposes 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. The second is a OEC 403 argument, that constant repetition 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.

The arguments have much greater force when applied to GJ testimony and/or prior trial testimony.

But what if we're wrong. Is there a way to avoid locking the appellate attorney into a losing argument? Let's focus just on the scope of 803 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. But at the same time, I think trial courts will be more sympathetic to the argument that the legislature didn't intend the statute to apply to GJ testimony or prior trial testimony. 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, or 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 at that point.)

I think this is a distinction that relies on common sense. There must be a limiting principal. If not, the state could admit a hundred statements made before the child turned 18. At some point, the legislature must have intended some rational limit. Statements to law enforcement/authority figures that does not serve an investigatory purpose a perfectly reasonable way to distinguish GJ testimony and the forensic interview. At the very least, making this argument will help indirectly on the OEC 403 argument you'd also be making.