statements that the complainant made to police officer regarding the defendant’s assault were not admissible under the catchall exception of OEC 804, where the complainant had talked to her mother twice and to another officer once between the incident and her statements to the officer who testified, and where the complainant testified that she could not remember defendant assaulting her
How later courts described this case
- statements that the complainant made to police officer regarding the defendant’s assault were not admissible under the catchall exception of OEC 804, where the complainant had talked to her mother twice and to another officer once between the incident and her statements to the officer who testified, and where the complainant testified that she could not remember defendant assaulting her
- out-of-court statements made by assault victim to police officer were found non-reliable because there was evidence the victim had been angry with the defendant because the defendant had been seeing defendant’s ex-wife; held inadmissible
Written by the judges who cited it.
The opinion
ROSSMAN, J.,
dissenting.
I agree with the majority that the police officer’s testimony concerning statements the victim made to him was not admissible under any of the specific exceptions to the hearsay rule. However, in my opinion, the circumstances under which the statements were made clearly guarantee their trustworthiness and, therefore, the trial judge’s decision to admit them under the residual exception as provided in OEC 804(3)(f) was well within the realm of sound judicial discretion. Accordingly, I respectfully dissent.
OEC 804(3) provides, in part:
“The following are not excluded by [OEC 802] if the declarant is unavailable as a witness:
<<* * * * *
“(f) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is *434 offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of the Oregon Evidence Code and the interests of justice will best be served by admission of the statement into evidence.”
A witness is unavailable if she testifies to “a lack of memory of the subject matter of a statement.” OEC 804(l)(c). Here, defendant does not contend that the victim is not unavailable. Her statements to the police officer are material and more probative of the assault that defendant is accused of committing than any other procurable evidence. Clearly, their admission is necessary to the state’s prosecution of the case and serves the interests of justice. Accordingly, the only issue is whether the circumstances under which the victim made the statements guarantee their trustworthiness.
I believe that the circumstances under which the statements were made do guarantee their trustworthiness. The victim made them shortly after the alleged assault occurred. She had no apparent reason to fabricate a story. In fact, she had a very good reason not to lie: ORS 162.375 makes it a crime to give a false report to a law enforcement agency. It is also significant that she has never recanted her story. Moreover, the police officer observed scratches and bruises that were consistent with her allegations. Surely, the majority would not suggest that she purposely inflicted the injuries on herself in order to make her story more believable. In short, this victim was in a position to know what happened to her and to relate the events to the police.
The majority’s expressed fear that the hearsay rule would be effectively abolished if we affirm the trial court is unfounded. This is exactly the type of situation which the residual exception to the hearsay rule is meant to cover. The victim’s statements very nearly fit into the excited utterance exception to the hearsay rule. OEC 803(2). Their timeliness is compensated for by their consistency with the victim’s injuries. Apparently, however, the majority believes that if an out-of-court statement somewhat resembles one of the specific exceptions but does not exactly meet the requirements of that exception, the residual exception necessarily does not apply. Unfortunately, that approach will inevitably lead to the abolition of the residual exception.
*435 Determining the trustworthiness of any evidence, as it pertains to admissibility, involves an exercise of discretion. Thus, the real issue is whether the ruling is within the permissible range of the trial judge’s discretion. Our duty is not to mandate how the trial judge must rule unless the circumstances surrounding the making of the statements render them trustworthy or untrustworthy as a matter of law.
I am satisfied that the trial judge’s decision was well within the permissible range of judicial discretion. Whether the victim’s accusations are, in fact, true is for the jury to determine. Accordingly, I would affirm.