417 P.3d 571
Or. Ct. App.2018Background
- Defendant was arrested after a 2005 traffic stop and booked; police later found a Schedule I controlled substance and charged him with misdemeanor possession.
- Defendant absconded and failed to appear for many years; trial occurred in 2016 when arresting officers had little or no independent recollection of the stationhouse interactions that led to discovery of the narcotics.
- Officers had contemporaneous written police reports describing those stationhouse events.
- At trial the court allowed officers to read portions of their reports despite their memory loss; defense objected on hearsay and Confrontation Clause grounds.
- Defendant appealed, arguing admission violated OEC 803(8), the Sixth and Fourteenth Amendments, and the Oregon Constitution; the state relied on State v. Scally.
- The court concluded state-law issues were governed by Scally but analyzed the federal Confrontation Clause under Crawford and affirmed the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of officers' report excerpts given officers' lack of memory | State: Scally controls; reports admissible through officers who testified | Defendant: Reading report excerpts is hearsay and violates confrontation because officers lacked recollection, so cross-examination was illusory | Court: Confrontation Clause satisfied because officers testified and were subject to cross-examination despite memory loss; admission affirmed |
| Applicability of Crawford when declarant testifies but has no memory | State: Crawford does not bar use of prior statements when declarant appears for cross-examination | Defendant: Crawford requires reliability protections; memoryless testimony is not a full substitute for in-court testimony | Court: Crawford recognizes that when declarant appears for cross-examination, prior testimonial statements may be used; memory loss does not negate the right to effective cross-examination |
| Effect of OEC 803(8) and Oregon constitutional claims | State: Scally disposes of those state-law arguments | Defendant: Seeks to revisit Scally and exclude the report excerpts under state evidence rule and state constitution | Court: Declined to revisit Scally; state-law challenges disposed by existing precedent |
| Whether cross-examination was an "effective" opportunity | State: Presence and cross-examination opportunity satisfied confrontation rights | Defendant: Formal availability was insufficient because officers could not remember events to be tested | Court: Confrontation Clause requires only a full and fair opportunity to cross-examine, not guaranteed effectiveness; opportunity existed and rights were not violated |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (recast confrontation analysis by focusing on "testimonial" hearsay and presence for cross-examination)
- Ohio v. Roberts, 448 U.S. 56 (1980) (prior framework for admitting hearsay now superseded by Crawford)
- Davis v. Alaska, 415 U.S. 308 (1974) (cross-examination’s role in testing perception, memory, and credibility)
- Kentucky v. Stincer, 482 U.S. 730 (1987) (Confrontation Clause guarantees opportunity for effective cross-examination, not guaranteed results)
- United States v. Owens, 484 U.S. 554 (1988) (full and fair opportunity to probe witness’s memory can satisfy confrontation)
- United States v. Inadi, 475 U.S. 387 (1986) (reliability of out-of-court statements not decisive when declarant testifies and is cross-examined)
- Delaware v. Fensterer, 474 U.S. 15 (1985) (Confrontation Clause centered on opportunity for cross-examination)