496 P.3d 1077
Or. Ct. App.2021Background:
- Defendant (Martin) was on 36 months supervised probation with a no-contact condition after domestic-violence convictions involving his girlfriend, MK.
- Defendant chased MK; MK called 9‑1‑1 and described the incident on the recording used at the revocation hearing.
- At the probation-revocation hearing the state could not locate MK to testify and offered the 9‑1‑1 recording; Martin objected under the Due Process Confrontation right.
- The trial court admitted the recording as an excited utterance (a hearsay exception); Martin was found to have violated probation and appealed.
- The Oregon Court of Appeals (majority) held that statements admissible under a "firmly rooted" hearsay exception (here, excited utterance) satisfy due process such that confrontation and a Johnson balancing showing of good cause are not required.
- A dissent argued Johnson/Wibbens balancing should still apply because confrontation serves broader due-process interests (exposing omissions and context), and the majority departs from Ninth Circuit precedent.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admitting MK’s out-of-court 9‑1‑1 statements without live testimony violated Martin’s due-process right to confront adverse witnesses | The statements are admissible as excited utterances, a firmly rooted hearsay exception whose inherent reliability satisfies due process | Admission without live testimony denied meaningful opportunity to test veracity and therefore violated due process | Court held no violation: firmly rooted exception (excited utterance) provides sufficient reliability; confrontation/good-cause showing not required |
| Whether Johnson/Wibbens balancing is required when hearsay falls within a firmly rooted exception | The state urges no balancing is required because firmly rooted exceptions render confrontation unnecessary | Martin argues the four-factor balancing should still apply to protect broader due-process interests | Court rejected mandatory balancing here, treating firmly rooted reliability as dispositive; dissent would retain balancing test |
Key Cases Cited
- Morrissey v. Brewer, 408 U.S. 471 (established due-process confrontation right in parole revocation hearings)
- Gagnon v. Scarpelli, 411 U.S. 778 (extended Morrissey protections to probation revocations)
- Mathews v. Eldridge, 424 U.S. 319 (due process is flexible; requires balancing interests)
- White v. Illinois, 502 U.S. 346 (firmly rooted hearsay exceptions are so reliable that adversarial testing adds little)
- Ohio v. Roberts, 448 U.S. 56 (firmly rooted hearsay exception theory for Confrontation Clause under prior Sixth Amendment framework)
- Crawford v. Washington, 541 U.S. 36 (reframed Sixth Amendment confrontation analysis)
- Davis v. Washington, 547 U.S. 813 (9‑1‑1 calls made during ongoing emergency are nontestimonial)
- State v. Johnson, 221 Or. App. 394 (Oregon adoption of a four-factor balancing test for denying confrontation in revocation hearings)
- Valdivia v. Schwarzenegger, 599 F.3d 984 (9th Cir. decision rejecting automatic admissibility for firmly rooted hearsay exceptions)
- State v. Moen, 309 Or. 45 (recognizing excited utterance as a firmly rooted hearsay exception)