The opinion
WARREN, S. J.,
dissenting.
The majority reaches its result by simply following in the footsteps of State v. Campbell, 299 Or 633 , 705 P2d 694 (1985). I believe, however, that Campbell was decided under a mistaken reading of federal law. Although the Supreme Court has adopted that mistake as Oregon law, subsequent federal case law convinces me that we should not feel bound to follow it.
The court in Campbell considered whether the introduction of hearsay under OEC SOSllSa) 1 violated the defendant’s right to confrontation under both the Oregon and federal constitutions. 2 First analyzing the state constitutional challenge, 3 the court held that the defendant’s right “to meet the witness face to face” had been violated. The court stated that it adopted
“the reasoning of the Supreme Court of the United States [in Ohio v. Roberts, 448 US 56 , 100 S Ct 2531 , 65 L Ed 2d 597 (1980)] in determining what constitutes unavailability of a hearsay declarant and what constitutes adequate indicia of reliability of hearsay declarations to satisfy our state *152 constitutional confrontation clause.” Id. at 648 (emphasis added).
The court cited Roberts and understood it to establish “a two-part test for determining whether admission of out-of-court statements of a witness who does not testify at trial satisfies the defendant’s right to confrontation.” Campbell, 299 Or at 648 . Without any analysis or reasoning, the court simply applied the Roberts two-part test as Oregon law. 4
The issue in Roberts was whether the introduction at trial of an unavailable witness’s preliminary hearing testimony violated the federal confrontation clause. In Justice Blackmun’s majority opinion, the Court acknowledged that the federal confrontation clause reflects a preference for face-to-face confrontation at trial and that one of its primary interests is the right of cross-examination. In reaching its decision, the Court did not attempt “to map out a theory of the Confrontation Clause that would determine the validity of all * * * hearsay exceptions.” Id. at 64-65 (quoting California v. Green, 399 US 149, 162 , 90 S Ct 1930 , 26 L Ed 2d 489 (1970)) (internal quotation marks omitted). The Court created a two-step approach, stating, “In the usual case * * * the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” Roberts, 448 US at 65 . Once a witness is shown to be unavailable, the Court then requires adequate “indicia of reliability,” only admitting hearsay that falls within a firmly rooted hearsay exception or that has particularized guarantees of trustworthiness. The Court noted, however, that a demonstration of unavailability is not always required. Id. n 7 (citing Dutton v. Evans, 400 US 74 , 91 S Ct 210 , 27 L Ed 2d 213 (1970)).
In 1986, after the Oregon Supreme Court had decided Campbell , the United States Supreme Court once again reviewed a federal confrontation clause challenge to hearsay testimony. United States v. Inadi, 475 US 387 , 106 S Ct 1121 , 89 L Ed 2d 390 (1986). The statements at issue in Inadi were those of a coconspirator who did not testify. The *153 Court reversed the decision of the Court of Appeals for the Third Circuit that had based its decision on its understanding that Roberts required unavailability to be shown as a condition to the admission of all hearsay. The Court of Appeals viewed the requirement of unavailability set forth in Roberts as setting forth a “clear constitutional rule.” Inadi , 748 F2d 812, 818 (3rd Cir 1984). The Supreme Court, however, disagreed with that interpretation of Roberts , stating:
“Roberts should not be read as an abstract answer to questions not presented in that case, but rather as a resolution of the issue the Court said it was examining: ‘the constitutional propriety of the introduction in evidence of the preliminary hearing testimony of a witness not produced at the defendant’s subsequent state criminal trial.’ ” Inadi, 475 US at 392 -93 (quoting Roberts, 448 US at 58 ).
Having clarified the scope of Roberts , 5 the Court then looked at the question before it: whether the federal confrontation clause requires the proponent to show that a non-testifying coconspirator is unavailable to testify, as a condition for admission of that coconspirator’s out-of-court statements. In its analysis, the Court differentiated both coconspirators’ statements and unspecified exceptions to the hearsay rule from situations where former testimony is only a weaker substitute for live testimony. According to the Court, coconspirator statements are distinguishable from the prior testimony statements in Roberts (and all of the cases cited in Roberts) for the following reasons: they provide evidence that cannot be replicated with in-court testimony; they derive their significance from the circumstances in which they were made; the co-conspirators were likely to speak differently when talking to each other about their illegal goals; and the relative positions of the parties will have changed since the time the statements were made. “[C]o-conspirator statements derive much of their value from the fact that they are made in a context very different from trial, and therefore are usually irreplaceable as substantive evidence.” Inadi, 475 US at 395-96 . These are all points that may also be made about excited utterances.
*154 In 1992, the United States Supreme Court reviewed the issue again, but this time the statements were admitted under the excited utterance and medical diagnosis exceptions to the hearsay rule. White v. Illinois, 502 US 346 , 112 S Ct 736 , 116 L Ed 2d 848 (1992). The Court began with a discussion of Roberts and then repeated the analysis it set forth in Inadi , applying its observations of the coconspirator statements to the excited utterance and medical diagnosis statements. The Court first noted that the rationale for permitting these two types of hearsay testimony is that they are both made in contexts that provide substantial guarantees of their trustworthiness. Additionally, the factors that make these statements so reliable, “cannot be recaptured even by later in-court testimony.” Id. at 356. The Court then stated:
“A statement that has been offered in a moment of excitement — without the opportunity to reflect on the consequences of one’s exclamation — may justifiably carry more weight with a trier of fact than a similar statement offered in the relative calm of the courtroom.” Id.
Distinguishing the statements at issue in Roberts from excited utterances and statements for medical diagnosis, the Court noted that they were materially different in that there was no threat of lost evidentiary value if the pretrial hearing statements were replaced with live testimony. As shown above, this is not the case with excited utterances. According to the Court:
“To exclude such probative statements under the strictures of the Confrontation Clause would be the height of wrongheadedness, given that the Confrontation Clause has as a basic purpose the promotion of the ‘integrity of the fact-finding process.’ ” Id. at 356-57 (quoting Kentucky v. Stincer, 482 US 730, 736 , 107 S Ct 2658 , 96 L Ed 2d 631 (1987)).
In Oregon, since Campbell , the courts have uniformly applied the two-part Roberts test to every type of hearsay exception they have reviewed. No Oregon court has ever sought to explain why this test should be applied to any type of hearsay admitted over a confrontation clause challenge.
Oregon courts have had the opportunity to address this issue with respect to excited utterances twice since Campbell was decided. First in 1990, in State v. Moen, 309 Or *155 45 , 786 P2d 111 (1990), the Oregon Supreme Court determined that out-of-court statements were admissible under both the excited utterance and statement for purposes of medical diagnosis exceptions to the hearsay rule. The court applied the Roberts test to both federal and state confrontation clause challenges to the admission of the statements. In Moen , there was no question about the unavailability of the declarant as she was one of the murder victims that the defendant was convicted of killing.
The following year, in State v. Jensen, 107 Or App 35 , 810 P2d 865 (1991), we concluded that the victim’s statements were admissible as excited utterances. After reaching that conclusion, we then went on to apply the Roberts test to both state and federal confrontation clause challenges and found that the declarant was not shown to be unavailable. On review by the Oregon Supreme Court, after finding that the trial court did not err in holding that the statements were admissible under the medical diagnosis exception, 6 the court concluded that it should not even reach the confrontation argument, as the defendant made no state or federal confrontation objections at either of his trials, and it vacated that portion of our opinion. State v. Jensen, 313 Or 587 , 837 P2d 525 (1992). The Supreme Court further noted:
“[I]n White v. Illinois * * * the Supreme Court of the United States held that the Confrontation Clause of the Sixth Amendment does not require that the prosecution must either produce the declarant at trial or the trial court must find that the declarant is unavailable before a trial court admits testimony under the ‘spontaneous declaration’ and ‘medical examination’ exceptions to the hearsay rule.” Id. at 598 n 8.
What is most interesting about this footnote is what the court did not say. The court did not mention that the courts in Oregon have required a finding of unavailability in every case that has reviewed a state confrontational clause challenge since Campbell was decided in 1985. The court did not mention that unavailability was required in Moen , when both state and federal confrontation clause challenges were *156 brought against the same two exceptions to the hearsay rule. Perhaps the court did not do so because it recognized that requiring unavailability for these hearsay exceptions should not be continued under the Oregon confrontation clause either.
The theoretical basis for the “excited utterance” exception to the hearsay rule is that there was a condition of excitement that temporarily stilled the capacity for reflection and produced'an utterance free of conscious fabrication. Wig-more, 6 Evidence § 1747, 135 (3d ed 1940). According to the United States Supreme Court, “such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabulation, and that therefore the circumstances surrounding the making of the statement provide sufficient assurance that the statement is trustworthy and the cross-examination would be superfluous.” Idaho v. Wright, 497 US 805, 820 , 110 S Ct 3139 , 111 L Ed 2d 638 (1990). The rationale underlying the excited utterance exception is that
“[t]he utterance is really an effusion. Being spontaneous in nature, the declaration is free from the elements of design, contrivance and self-service which at times color testimony given from the witness stand. The crediblity of a declaration of that kind is not dependent solely upon the veracity of the declarant. The pain, excitement or horror of the event had stilled the powers of reflection and had enabled the event itself to speak through the tongue of the declarant. It is the startling event rather than the will of the declarant that propelled his tongue. If one who sought the truth were required to make a choice between the spontaneous declaration and the testimony under oath of the declarant he possibly would choose the former. The circumstances under which the spontaneous declaration was made commend it as a reliable index to the truth.” State v. Hutchison, 222 Or 533, 537 , 353 P2d 1047 (1960).
The United States Supreme Court in White has made it clear that Campbell was decided under a mistaken interpretation of Ohio v. Roberts. White clarified that the admission of hearsay evidence was not always dependent on unavailability. Specifically it held that that precondition did not apply to excited utterances. I do not, therefore, feel that *157 we should be bound to follow the pronouncements of Campbell or its progeny. I believe that the requirements of both the state and federal confrontation clauses are the same, therefore, following the reasoning in White , unavailability is not required to meet the terms of the Oregon confrontation clause. The statement in this case should not be subject to exclusion based on the argument made by defendant.
I dissent.
Edmonds, J., joins in this dissent.
OEC 803 provides, in part:
“The following Us] not excluded by fOEC 8021, even though the declarant is available as a witness:
“(18a) Complaint of sexual misconduct. A complaint of sexual misconduct made by the prosecuting witness after the commission of the alleged offense. Such evidence must be confined to the fact that the complaint was made.”
The Sixth Amendment to the United States Constitution provides that, “In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.”
It should be noted that the two confrontation clauses are different, but no court has ever shown that they have a different effect. In Campbell , the court did not address the federal constitutional challenge.
I assume that the court intended to adopt the Roberts two-part test as Oregon law, although it never expressly did so.
Interestingly, Justice Blackmun, who wrote the majority opinion in Roberts , joined in the Inadi majority, which clearly limited the application of Roberts .
The court did not disturb the finding of the Court of Appeals that the same statements were admissible under the excited utterance exception.