State v. Martin

578

Submitted July 16, 2020, affirmed July 28, petition for review allowed

November 24, 2021 (368 Or 787)

See later issue Oregon Reports

STATE OF OREGON,

Plaintiff-Respondent,

v.

DEANGELO FRANKLIN MARTIN,

Defendant-Appellant.

Multnomah County Circuit Court

18CR25299, 18CR31500;

A169801 (Control), A169803

496 P3d 1077

Defendant appeals from a judgment that he violated the conditions of his

probation. On appeal, he argues that the trial court violated his due process

right to confront the witnesses against him by admitting the victim’s out-of-court

statements made during a 9-1-1 call without good cause for why the victim was

not called as a witness during the hearing. In response, the state argues that,

regardless of whether there was good cause for not calling the victim during the

hearing, her statements were admissible because they were excited utterances,

a firmly rooted exception to the hearsay rule. Held: The trial court did not err in

admitting the victim’s statements. When a statement qualifies for a firmly rooted

hearsay exception, its admission does not violate the due process clause because

adversarial testing is not expected to add to its reliability. Accordingly, requiring

good cause for a witness’s unavailability will not meaningfully contribute to the

goal of ensuring reliability.

Affirmed.

Shelley D. Russell, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Stacy M. Du Clos, Deputy Public Defender,

Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Daniel Norris, Assistant Attorney

General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and James, Judge, and

Kamins, Judge.

KAMINS, J.

Affirmed.

James, J., dissenting.

Cite as 313 Or App 578 (2021) 579

KAMINS, J.

Defendant appeals from a judgment that he vio-

lated the conditions of his probation. On appeal, he chal-

lenges the trial court’s admission and consideration of out-

of-court statements of the victim, who did not testify at the

hearing. Because the statements were admissible pursuant

to a “firmly rooted” hearsay exception, we affirm.

Defendant was previously convicted of several

domestic violence crimes committed against his girlfriend,

MK. Part of his sentence for those crimes included 36 months

of supervised probation, which included a condition that he

does not contact MK. Despite this condition, defendant went

to MK’s house and chased her down the street as she tried

to evade him. During the chase, MK managed to call 9-1-1

and described what was occurring to the dispatcher.

The trial court held a hearing to determine whether

defendant violated the conditions of his probation, includ-

ing the condition that he does not contact MK.1 During that

hearing, the state submitted a recording of the 9-1-1 call

as proof of the violation. The state informed the court that

it was unable to locate MK in time for the hearing, so she

did not testify. Defendant objected to the admission of the

9-1-1 recording, arguing that it violated his right to confront

witnesses under the Due Process Clause of the Fourteenth

Amendment to the United States Constitution. The trial

court concluded that the admission of the recording complied

with the requirements to admit an out-of-court statement in

a probation revocation hearing. Defendant challenges that

decision on appeal.

We review whether the admission of evidence at a

probation revocation hearing violates a defendant’s right to

confront adverse witnesses for errors of law. State v. Harris,

260 Or App 154, 157, 316 P3d 405 (2013).

A defendant is not entitled to “the full panoply of

rights” during a probation revocation hearing that he would

be due during a criminal prosecution. Morrissey v. Brewer,

1

Defendant was also charged with a probation violation for failing to report

to his probation officer, which he conceded to the trial court.

580 State v. Martin

408 US 471, 480, 92 S Ct 2593, 33 L Ed 2d 484 (1972).2

Rather, the probation revocation process is “flexible enough

to consider evidence * * * that would not be admissible in

an adversary criminal trial.” Id. Because a defendant in

a probation revocation proceeding has already been con-

victed of a crime, his freedom is not a matter of right, but

rather extended to him as a matter of discretion. Barker v.

Ireland, 238 Or 1, 4, 392 P2d 769 (1964). As a result, a defen-

dant during a probation revocation hearing has no Sixth

Amendment right to confront witnesses. State v. Gonzalez,

212 Or App 1, 5, 157 P3d 266 (2007). Instead, that defendant

has a more limited right under the Due Process Clause “to

confront and cross-examine adverse witnesses (unless the

hearing officer specifically finds good cause for not allowing

confrontation).” Morrissey, 408 US at 489.

Here, the state contends that there is good cause for

admitting MK’s testimony without confrontation because

it would have been admissible at trial as an excited utter-

ance under OEC 803(2)—a “firmly rooted” exception to the

hearsay rule. See State v. Moen, 309 Or 45, 65, 786 P2d

111 (1990) (“The excited utterance exception is a firmly

rooted traditional hearsay exception.”). In the state’s view,

the inherent reliability of a statement admissible pursuant

to a firmly rooted exception is sufficient to satisfy the due

process concerns that would otherwise require confronta-

tion. To evaluate that argument, we must examine both the

requirements of due process and the theory of firmly rooted

hearsay exceptions.

The fundamental requirement of the Due Process

Clause “is the opportunity to be heard at a meaningful time

and in a meaningful manner.” Mathews v. Eldridge, 424 US

319, 333, 96 S Ct 893, 47 L Ed 2d 18 (1976) (internal quota-

tion marks omitted). In the context of defendant’s right to

confront witnesses, this means a meaningful opportunity

to test the veracity of the evidence via cross examination to

ensure that any revocation of probation is based on “verified

2

Although Morrissey was concerned with parole revocation proceedings, the

Supreme Court recognized that the same protections apply to probation revoca-

tion proceedings in Gagnon v. Scarpelli, 411 US 778, 782, 93 S Ct 1756, 36 L Ed

2d 656 (1973).

Cite as 313 Or App 578 (2021) 581

facts.” See Morrissey, 408 US at 484. However, due process

is flexible; the protections it affords are responsive to the

needs of the situation. Jennings v. Rodriguez, 583 US ___,

___, 138 S Ct 830, 852, 200 L Ed 2d 122 (2018). “It requires

minimum procedural safeguards, depending on the nature

of the interests involved and a weighing of costs and ben-

efits in terms of the risks of erroneous decisionmaking in

the generality of cases.” Trujillo v. Pacific Safety Supply,

181 Or App 302, 309-10, 45 P3d 1017 (2002), aff’d, 336 Or

349, 84 P3d 119 (2004). In situations where further proce-

dural safeguards would be expected to add little, if any-

thing, to the reliability of the factfinding process, due pro-

cess does not require that courts impose them. Id. at 309.

Notably, because due process protections are flexible and

circumstance-dependent, the Supreme Court has explained

that they are not meant to equate to the protections that a

criminal defendant is entitled to under the Sixth Amendment

at trial. Morrissey, 408 US at 489.

Consistent with those principles, we outlined a

four-factor balancing test for determining whether “good

cause” exists for denying confrontation during a probation

revocation hearing in State v. Johnson, 221 Or App 394,

401, 190 P3d 455 (2008): “(1) the importance of the evidence

to the court’s finding; (2) the probationer’s opportunity to

refute the evidence; (3) the difficulty and expense of obtain-

ing witnesses; and (4) traditional indicia of reliability borne

by the evidence.” The first two factors assess the strength

of a defendant’s interest in confrontation, which is then

weighed against the state’s good cause for not producing the

declarant, as measured by the second two factors. Harris,

260 Or App at 158. “If, on balance, the state’s good cause

outweighs the defendant’s interest in confrontation, then

confrontation is not constitutionally required.” Id. Applying

the balancing test in Johnson, we concluded that a proba-

tion officer’s sworn affidavit averring that defendant had

failed to comply with the officer’s directives was admissi-

ble without confrontation. 221 Or App at 406. Although two

factors weighed in defendant’s favor—that the evidence was

important and there was only a “perfunctory showing” as to

why the probation officer was not called as a witness—the

evidence bore substantial earmarks of reliability, concerned

582 State v. Martin

only relatively simple matters, and defendant did not mean-

ingfully contest it. Id. at 405.

In Johnson, however, we also left open the ques-

tion of whether evidence that satisfies a “well-established

exception to the hearsay rule, might, standing alone, satisfy

due-process-based confrontation demands” without a need

for balancing. Id. at 403-04. The concept of firmly rooted

exceptions traces its roots back to the now-defunct frame-

work for evaluating confrontation challenges under the

Sixth Amendment in Ohio v. Roberts, 448 US 56, 66, 100

S Ct 2531, 65 L Ed 2d 597 (1980), abrogated by Crawford

v. Washington, 541 US 36, 124 S Ct 1354, 158 L Ed 2d 177

(2004). Under Roberts, the theory went that there are cer-

tain firmly rooted hearsay exceptions that by their nature

are so inherently reliable “that admission of virtually any

evidence within them comports with the substance of the

[Confrontation Clause].” Id. The exception contemplated

by Johnson would thus allow the admission of statements

under the Due Process Clause that, by their nature, are

so inherently reliable that they would satisfy the Sixth

Amendment’s Confrontation Clause at trial.

Such an exception makes sense. A statement qual-

ifying for a firmly rooted hearsay exception is already con-

sidered “so trustworthy that adversarial testing can be

expected to add little to its reliability.” White v. Illinois, 502

US 346, 357, 112 S Ct 736, 116 L Ed 2d 848 (1992). And,

even among firmly rooted exceptions, excited utterances are

a “special breed.” People v. Stanphill, 170 Cal App 4th 61,

81, 87 Cal Rptr 3d 643, 657 (2009). The rationale behind the

excited utterance exception—that statements made under

the stress of an exciting event while the speaker lacks the

presence of mind to act in his or her own self-interest are

especially reliable—has proven so strong that the exception

has existed for over two centuries. White, 502 US at 355

n 8 (the excited utterance exception is “at least two centu-

ries old” but “may date to the late 17th century” and, as of

1992, “is currently recognized * * * in nearly four-fifths of

the States”). In fact, Wigmore explains, such statements are

likely even better than live testimony because it is not pos-

sible to reproduce the same conditions in the courtroom that

Cite as 313 Or App 578 (2021) 583

give rise to their reliability under the exception. John Henry

Wigmore, 6 Evidence § 1748 (Chadbourn rev 1976) (a state-

ment made under the stress of an exciting event is “better

than is likely to be obtained from the same person upon the

stand”).

Under these circumstances, the due process concerns

which ordinarily favor confrontation—and thus Johnson

balancing—are not present. If cross examination does not

increase the reliability of a statement admitted pursuant to

a firmly rooted hearsay exception, then, by definition, allow-

ing confrontation would not provide defendant a meaningful

opportunity to test the veracity of the evidence for purposes

of due process. See Morrissey, 408 US at 484 (due process

requires a meaningful opportunity “to assure that the find-

ing of a parole violation will be based on verified facts”).

Instead, the inimitable circumstances which give rise to the

reliability of the statement in the first place provide defen-

dant the assurances of veracity necessary to satisfy due

process concerns. Moreover, even if some value were still to

be gained by allowing cross examination, the fact remains

that “the Due Process Clause simply does not require the

best method for discovering the truth.” Trujillo, 181 Or App

at 309 (internal quotation marks omitted). It requires only

“minimum procedural safeguards, adapted to the particular

characteristics of [the situation].” Goldberg v. Kelly, 397 US

254, 267, 90 S Ct 1011, 25 L Ed 2d 287 (1970). Accordingly,

we conclude that, when a statement is admitted pursuant

to a hearsay exception with firmly rooted reliability, the

requirements of due process are satisfied.

Notably, we are far from alone in that conclusion. A

number of other courts have held that the requirements of

due process are automatically satisfied when the statement

at issue is admissible pursuant to a firmly rooted hearsay

exception. United States v. Jones, 299 F3d 103, 113-14 (2d

Cir 2002); State v. Giovanni P., 155 Conn App 322, 335-36,

110 A3d 442, 452-53 (2015); State v. James, 797 A2d 732,

736-37 (Me 2002); Bailey v. State, 327 Md 689, 698-99, 612

A2d 288, 292 (1992); Commonwealth v. Durling, 407 Mass

108, 117-18, 551 NE2d 1193, 1198-99 (1990); State v. Nez, 130

Idaho 950, 955, 950 P2d 1289, 1294 (Ct App 1997); Hampton

584 State v. Martin

v. State, 203 P3d 179, 186 (Okla Crim App 2009); see also

State ex rel. Simpson v. Schwarz, 250 Wis 2d 214, 229, 640

NW2d 527, 535 (Ct App 2001) (holding that a statement

admitted pursuant to any of the hearsay exceptions in the

state’s rules of evidence is sufficiently reliable to satisfy the

defendant’s confrontation rights); Stanphill, 170 Cal App 4th

at 81 (statements qualifying for “spontaneous declaration”

exception to hearsay rule are admissible without balancing

because of their inherent reliability).

Our home circuit is the only federal court of appeals

to have expressly rejected such an exception.3 Valdivia v.

Schwarzenegger, 599 F3d 984, 990 (9th Cir 2010). In Valdivia,

the Ninth Circuit explained that a statement falling within

a firmly rooted hearsay exception is not necessarily admis-

sible because reliability is but one factor to be considered

under the balancing test. Id. at 990. The dissent pointed

out that requiring the state to demonstrate good cause for

admitting such evidence without confrontation elevates

a defendant’s rights in a probation revocation proceeding

beyond those of a defendant during a criminal prosecution

where a showing of good cause has never been necessary.

Id. at 997. The majority responded that a defendant in a full

criminal prosecution still retains a number of other rights

that a probation revocation defendant does not, “including

a jury trial, proof beyond a reasonable doubt, application of

the applicable rules of evidence, and Sixth Amendment con-

frontation rights.” Id. at 990.

We reject the Valdivia majority’s reasoning. Although

the reliability of a statement might appear to be just a sin-

gle factor in the balancing test, it is the primary focus of a

defendant’s due process confrontation right and the nexus

between all of the factors in the analysis. See Morrissey, 408

US at 484 (Due process requires “an informal hearing struc-

tured to assure that the finding of a parole violation will

be based on verified facts”); Heller v. Doe, 509 US 312, 332,

3

“[W]e are not bound by decisions of the Ninth Circuit—or any other federal

circuit—even on questions of federal law.” State v. Ward, 367 Or 188, 197, 475 P3d

420 (2020). Although we consider decisions by all lower federal courts, including

the Ninth Circuit, for their persuasive effect, we employ an independent analysis

to reach our own conclusions. Wolfe v. Brown, 294 Or App 800, 813, 432 P3d 1121

(2018).

Cite as 313 Or App 578 (2021) 585

113 S Ct 2637, 125 L Ed 2d 257 (1993) (“[T]he Due Process

Clause [protects] the interest of a person subject to gov-

ernmental action * * * in the accurate determination of the

matters before the court.”). Indeed, “the purpose of applying

due process protections to probation revocation hearings in

the first place is to vindicate and protect a criminal defen-

dant’s cognizable interest in not having [probation] revoked

because of erroneous information.” People v. Gray, 63 Cal

App 5th 947, 954, 278 Cal Rptr 3d 291, 298 (2021) (recogniz-

ing that “[d]ue process is about reliability; the Confrontation

Clause, confrontation”).

Accordingly, when the unique circumstances sur-

rounding the making of a statement admissible pursuant

to a firmly rooted hearsay exception provide assurances

of reliability in other ways, it does not meaningfully serve

the concerns of due process to subject that statement to

confrontation. Doing so does not provide a defendant with

any more meaningful of an opportunity to test its reliabil-

ity. See Roberts, 448 US at 65 (statements admitted pursu-

ant to a firmly rooted hearsay exception are “marked with

such trustworthiness that ‘there is no material departure

from the reason of the general rule.’ ” (quoting Snyder v.

Massachusetts, 291 US 97, 54 S Ct 330, 78 L Ed 674 (1934),

overruled on other grounds, Malloy v. Hogan, 378 US 1, 84

S Ct 1489, 12 L Ed 2d 653 (1964))).

That conclusion is consistent with the Supreme

Court’s admonition that the rights afforded to a defendant

in a probation revocation proceeding under the Due Process

Clause are not equivalent to those of a defendant in a crim-

inal prosecution “in any sense.” Morrissey, 408 US at 489.

Applying Johnson balancing to statements that qualify for

a firmly rooted hearsay exception would require the state

to demonstrate good cause in every case for the admission

of the statements—something it has never been required to

show under any of the Sixth Amendment’s more rigorous

standards at trial. See Roberts, 448 US at 66 (statements

admissible without confrontation if offered pursuant to a

firmly rooted hearsay exception); Crawford, 541 US at 68

(statements admissible without confrontation if nontesti-

monial); see also Davis v. Washington, 547 US 813, 827-28

126 S Ct 2266, 165 L Ed 2d 224 (2006) (9-1-1 call seeking

586 State v. Martin

aid during an ongoing emergency was nontestimonial and

therefore admissible without confrontation).4

Against that backdrop, we turn to the case at hand.

Here, the state argues, and defendant does not dispute, that

MK’s statements would be admissible at trial as excited

utterances under OEC 803(2). Because the excited utterance

exception is firmly rooted—and therefore it would not serve

the interests of due process to subject MK’s statements to

confrontation—we conclude that the statements are admis-

sible regardless of the outcome of the balancing test. The

trial court did not err in admitting MK’s statements.

Affirmed.

JAMES, J., dissenting.

In Morrissey v. Brewer, the United States Supreme

Court announced that persons on parole have a Fourteenth

Amendment due process right “to confront and cross-

examine adverse witnesses (unless the hearing officer spe-

cifically finds good cause for not allowing confrontation).”

408 US 471, 489, 92 S Ct 2593, 33 L Ed 2d 484 (1972). That

right was extended to probation in Gagnon v. Scarpelli, 411

US 778, 783, 93 S Ct 1756, 36 L Ed 2d 656 (1973). Subsequent

to Morrissey and Gagnon, a plethora of courts have held that

due process confrontation involves “balancing the [releasee’s]

right to confrontation against the Government’s good cause

for denying it.” United States v. Martin, 984 F2d 308, 310

(9th Cir 1993) (brackets in original); see also United States v.

Kindred, 918 F2d 485, 486-87 (5th Cir 1990) (“[C]ourts con-

sidering the admissibility of hearsay in revocation proceed-

ings have adopted an approach which balances the parolee’s

interest in confronting a particular witness against the gov-

ernment’s good cause for denying it.”); United States v. Bell,

785 F2d 640, 642 (8th Cir 1986) (“These decisions indicate

that the trial court in a probation-revocation proceeding

must balance the probationer’s right to confront a witness

against the grounds asserted by the government for not

requiring confrontation.”); United States v. Penn, 721 F2d

4

In contrast to the result in Johnson, under the current Sixth Amendment

confrontation framework, a probation officer’s affidavit averring that defendant

had failed to comply with the officer’s directives would be a testimonial statement

inadmissible without confrontation.

Cite as 313 Or App 578 (2021) 587

762, 764 (11th Cir 1983) (Admission of hearsay must “bal-

ance the probationer’s right to confront and cross-examine

witnesses against any good cause asserted by the govern-

ment for not allowing confrontation”).

In United States v. Walker, the Ninth Circuit elab-

orated on factors to consider in conducting the balancing

between a probationer’s right to confront, and the good cause

asserted by the government for not allowing confrontation.

“The defendant’s right to confrontation is weighed under

the specific circumstances presented. * * * In conducting

the balancing test, the trial court may consider the impor-

tance of the evidence to the court’s finding, the releasee’s

opportunity to refute the evidence, and the consequences

of the court’s finding. * * * The trial court might also con-

sider the ‘ “difficulty and expense of procuring witnesses,” ’

Martin, 984 F2d at 312 (quoting Gagnon, 411 US at 783

n 5), and the ‘ “traditional indicia of reliability” borne by the

evidence[.]’ Martin, 984 F2d at 312 (quoting United States v.

Simmons, 812 F2d 561, 564 (9th Cir 1987)).”

117 F3d 417, 420 (9th Cir), cert den, 522 US 961 (1997) (cita-

tion omitted).

We first applied the Ninth Circuit’s formulation in

State v. Johnson, noting,

“In the absence of a more clearly useful standard and

because the parties have framed their arguments consis-

tently with it, we apply the Ninth Circuit’s balancing test

to the record in this case to determine whether the admis-

sion of the challenged evidence violated defendant’s due

process right to confrontation. That test has the advantage

of serving administrative flexibility, one of the primary

goals of the revocation proceedings jurisprudence; it rec-

ognizes that well-established hearsay exceptions play an

important role by increasing reliability and reducing the

weight of the probationer’s interest in the balance, and it

helps ensure that revocation decisions are based on verified

facts, while at the same time emphasizing the pragmatic

factor of whether the challenged evidence was seriously

controverted.”

221 Or App 394, 404, 190 P3d 455, rev den, 345 Or 418

(2008).

588 State v. Martin

Ultimately, we used the following four-factor test

derived from Walker:

“Relevant factors in the balancing process include (1) the

importance of the evidence to the court’s finding; (2) the

probationer’s opportunity to refute the evidence; (3) the dif-

ficulty and expense of obtaining witnesses; and (4) tradi-

tional indicia of reliability borne by the evidence.”

Johnson, 221 Or App at 401.

Two years later, in State v. Wibbens, we formally

adopted those four factors, and the balancing test, as

Oregon’s construction of due process confrontation:

“In order to determine whether admission of hearsay

evidence at a probation revocation proceeding violates a

probationer’s right to confrontation, we have adopted the

Ninth Circuit’s balancing approach, which weighs the pro-

bationer’s interest in confrontation against the govern-

ment’s good cause for denying it. * * * The relevant factors

in that analysis include ‘(1) the importance of the evidence

to the court’s finding; (2) the probationer’s opportunity to

refute the evidence; (3) the difficulty and expense of obtain-

ing witnesses; and (4) traditional indicia of reliability borne

by the evidence.’ ”

238 Or App 737, 741-42, 243 P3d 790 (2010) (citation omitted).

In this case, the trial court applied the Johnson and

Wibbens four-factor balancing test. Defendant appealed,

and, understandably, argues the four-factor balancing test.

The state, in response, also argues the four-factor balancing

test, but simultaneously invites us to announce that, when

the evidence involved is a firmly rooted hearsay exception,

no balancing is required at all. By my reading, the state

invites us to effectively overrule Johnson and Wibbens, and

the majority accepts the invitation. For the majority, the

four-factor test is really only one factor—traditional indi-

cia of reliability; nothing else matters, and axiomatically,

there is no balancing. Because firmly rooted hearsay excep-

tions are traditionally reliable, there is no need to consider

the difficulty or expense of obtaining the witness, or the

importance of the evidence, or how admitting the hearsay

will hamstring any meaningful opportunity to refute the

evidence.

Cite as 313 Or App 578 (2021) 589

In so ruling, the majority places Oregon out of step

with the Ninth Circuit on an interpretation of a federal con-

stitutional right. While we certainly can, and sometimes do,

differ from the Ninth Circuit, when the issue is a federal

constitutional right, it should at least give us pause when we

differ from the federal courts. As the Ninth Circuit noted in

rejecting the invitation the majority accepts here:

“Reliability does not result in automatic admissibility:

‘Simply because hearsay evidence bears some indicia of

reliability does not render it admissible.’ United States v.

Hall, 419 F3d 980, 988 (9th Cir 2005). Therefore, evidence

falling under a hearsay exception does not circumvent the

Comito balancing test.1 It remains a part of it as an ‘indicia

of reliability,’ and subject to good cause analysis.”

Valdivia v. Schwarzenegger, 599 F3d 984, 990 (9th Cir 2010),

cert den, 562 US 1271 (2011).

I agree with the reasoning of Valdivia and would

take the same course for Oregon. The consequence of the

majority is that Johnson and Wibbens balancing is no bal-

ancing at all. When a hearsay exception could apply, no mat-

ter how critical to the state’s case, and even when the wit-

ness is just down the hall in the prosecutor’s office, none of

that will be considered, because no balancing is to be done.

This is, in my view, too narrow a formulation of due process.

Valdivia recognizes that Due Process confronta-

tion, coming in the context of a probation hearing—where

the prophylactic protections of the Sixth Amendment are

not directly applicable—serves a purpose beyond the simple

search for reliability. The Sixth Amendment’s Confrontation

Clause appears in the context of a criminal defendant’s cor-

responding right “to have compulsory process for obtaining

witnesses in his favor,” among other rights. Due Process

confrontation is a part of a broader inquiry, and the admis-

sion of hearsay is evaluated through a wider lens that com-

bines notions of confrontation with a probationer’s ability to

obtain and present opposing evidence. See Johnson, 221 Or

App at 401 (considering “the probationer’s opportunity to

1

United States v. Comito, 177 F3d 1166, 1170-71 (9th Cir 1999).

590 State v. Martin

refute the evidence”). As the United States Supreme Court

has noted,

“The phrase [due process of law] formulates a concept less

rigid and more fluid than those envisaged in other specific

and particular provisions of the Bill of Rights. Its applica-

tion is less a matter of rule. Asserted denial is to be tested

by an appraisal of the totality of facts in a given case. That

which may, in one setting, constitute a denial of fundamen-

tal fairness, shocking to the universal sense of justice, may,

in other circumstances, and in the light of other consider-

ations, fall short of such denial.”

Cty. of Sacramento v. Lewis, 523 US 833, 850, 118 S Ct 1708,

140 L Ed 2d 1043 (1998) (quoting Betts v. Brady, 316 US 455,

462, 62 S Ct 1252, 86 L Ed 1595 (1942)) (brackets in Lewis).

The majority eschews a totality consideration, replac-

ing it with a uniform rule that, by its nature, can never

ensure the case-by-case fairness to which Due Process

aspires. Consider the following hypothetical: a defendant is

on probation, and a condition of her probation is no contact

with her ex-husband. Defendant’s probation officer alleges

a probation violation based on defendant coming to the

ex-husband’s house one evening. To support that allegation,

the state offers the husband’s statement on the night of the

incident, offered to police, and qualifying as an excited utter-

ance under OEC 803(2) that the wife “had come to the house

and they had a fight.” Yet, if husband were to be examined

by opposing counsel, husband would have admitted that

wife came to the house because husband called her and told

her he was going to hurt the children.

Under the majority, that information would never

come to light, despite the fact that it is critical information

to any court considering a discretionary choice of whether to

revoke probation. The state would offer husband’s singular

hearsay statement and likely obtain a probation revocation

with no balancing of the other factors that might consider

whether cross-examination of husband is required for Due

Process. And this is the crux of why Due Process is more than

just the narrow concern for reliability. Confrontation and

cross-examination are certainly a vehicle to test reliability,

Cite as 313 Or App 578 (2021) 591

but they also serve to ferret out omission. Sometimes even

when what a witness affirmatively says is reliable, what that

witness has not said alters the context and tells the true

story. Only defendant has the motive to expose the omission.

It is confrontation, not evidentiary reliability, that, in some

instances, provides the “substantial protection against ill-

considered revocation” that Due Process demands. Gagnon,

411 US at 786. Accordingly, denying the defendant the

opportunity to do that cannot comport with principles of Due

Process fairness without at least balancing the factors at

play and considering, under a totality of the circumstances,

whether confrontation is necessary under the facts of the

specific case.

I respectfully dissent.