State v. Campbell

August reassigned Argued reversed and remanded March and submitted 20, 1985 August OREGON, OF STATE Review, Respondent CAMPBELL, ROBIN KEITH Petitioner on Review. S30758) 10-81-02892; A26455; CA SC

(CC 10-81-02891, P2d 694

634-a argued Deputy Groom, Defender, E. Public Salem David petitioner petition for him on the the cause on review. With Gary Babcock, Defender, D. Salem. was Public Virginia Salem, Linder, General, Assistant Solicitor respondent argued on review. With her on the cause Frohnmayer, Attorney General, E. and James brief was Dave Jr., Mountain, General, Solicitor Salem. Blackman, Portland, filed curiae on D. a brief amicus

Marc Oregon, Inc. him on behalf of ACLU Foundation With Ransom, Simson, & Portland. brief Blackman Sullivan, Schrunk, Madras, C. D. Port- Michael Michael Middle, Salem, a brief curiae land, and Dianne L. filed amicus Oregon Attorneys on Association. behalf District Stephen Deputy Defender, Salem, Williams, filed J. Public Criminal brief amicus curiae behalf Lawyers Defense Association.

JONES, J. dissenting opinion joined by

Campbell, J., Lent filed Linde, JJ.

634-b

JONES, J. This is a of a criminal review conviction. The issue is hearsay testimony by three-year-old whether the mother a alleged declarant who is the victim of sexual abuse is admissi- part ble in evidence. We hold that under the facts of this case testimony part was admissible and not if the defen- rights dant’s confrontation are satisfied. non-jury

Defendant was convicted after a trial of two Sodomy Degree1 upon counts of confession of the defendant and the of the victim later in the same in the First based a written of the mother

relating to the court the child’s statements made

day allegedly that the abuse occurred. babysit- The mother testified that defendant was the ter for her children on March 1981. Defendant and the (the mother’s) daughter witness’s until noon. were alone from 8:30 a.m. time,

At that the witness’s son returned from school. Defendant and the two children were alone until 4:10 p.m., at which time mother returned home from work. At approximately p.m., left, after defendant had mother and daughter had a conversation which mother related to the court: [my ‘Well, “A. I daughter] asked you today?’ what did do * * * - you today’ ‘Did have fun type prequestion. or said,

And she ‘Robin my first takes clothes [defendant’s name] every day.’ off “Q. right. All

“A. got my said, ‘Well, And I when I silly breath that’s a provides: ORS 163.405 “(1) person engages A person who in deviate sexual intercourse with another engage or causes another to in deviate sexual intercourse commits the crime of sodomy degree in the first if:

[*****] * * *

(b) years age; The victim is under 12 ^[*****]

“(2) Sodomy degree felony.” in the first is a Class A 163.305(1) provides: ORS “ persons ‘Deviate sexual intercourse’ means sexual conduct between consist-

ing organs person of contact between the sex of one and the mouth or anus of another.” - says says, ‘Why he

thing to do.’ And I does do that?’ And she oh, says, swings She me stuff.’ I no. No. ‘He around and And said, ‘Oh!’ dropped head and ‘He “And then she her a little bit licks ”2

my tee-tee.’ 803(24), admitted under This OEC residual rule, over objection defendant. taped previously defendant’s confession had been The portions of the defendant’s confession received. relevant are as follows: you voluntary Okay, will make a state-

“[Police Officer]: regarding ment the incidents? Yes.

“[Defendant]:

U* * * * ^[*] Okay. you Would tell me where this “[Police Officer]: occurred at. In recliner chair in front room.

“[Defendant]: you Okay, Of do know the address? “[Police Officer]: house? 650 River Road.

“[Defendant]: your Okay, you can me own and tell “[Police Officer]: your the time? capacity words what house was at ((* * * * * Babysitting.

“[Defendant]:

u* * * * * you your Okay. Can tell me own “[Police Officer]: 2nd, Monday, approx- what and at words on March occurred imately what time. a.m., Bethany my got on Well about 11:00 “[Defendant]: and, uh, it says, she ‘I a tee-tee’ refers to

lap have as she said, I pulled pants said then ‘Let she down her ‘see’and then, uh, pants .... pulled her her and me see’ and off of <<$ * * ^{[*] [*]} I, uh, proceeded lick her tee- And then

“[Defendant]: tee. taught during training daughter use the word “tee-tee” for had toilet been

vagina vaginal area. or Which, Okay. okay you now are refer- “[Police Officer]: ring vaginal to her area? As she calls it. “[Defendant]:

* * * * Okay, explain you to me how did that. “[Police Officer]: Well, my I had hands around her waist “[Defendant]: pulled up my I her face. Okay. Okay, approximately how “[Police Officer]: long you did do that to her? Approximately two or three minutes. “[Defendant]: Okay. Monday, Then to March the “[Police Officer]: 9th, you explain would that me? Well, all, the same as the other time and “[Defendant]: happened all of them at eleven morning o’clock and we watching was TV at the time.

U* * :f: * * And I grabbed by then her the waist and

“[Defendant]: pulled up my her face. Okay you and what did “[Police do at that Officer]:

point? vaginal Licked her area. “[Defendant]: Okay, approximately for long? how “[Police Officer]: For two to three minutes. “[Defendant]: Okay. Referring Monday, March “[Police Officer]: 16th, you explain will please? that one to me Okay. got my uh, lap again, She onto and “[Defendant]: uh, thing before, she said the same as she did got ‘I’ve a tee- tee, you haven’t’, how come pulled pants and she down her said, ‘See, and Iwhat have’ and I said ‘let me see’ and then I pulled pants panties her pulled off of her and her and her to my proceeded face and to lick her tee-tee. approximately long? For how

“[Police Officer]: Two to three minutes. “[Defendant]: Okay, Okay, Friday, 20th, March the “[Police Officer]: you explain would that one me? for Okay, was, uh, uh, it thing. the same She “[Defendant]:

got up my said, lap again tee-tee, got and she ‘I’ve how you one’, come got pulled pants haven’t she down her real quick pulls up says, them pulled back ‘See’ and I it by says, grabbed ‘Let me see’ and her the waist and

down and vaginal area.” proceeded to lick her opinion. Appeals The Court of affirmed without testimony hearsay in this case was The mother’s statement, by “a other than one made because it was hearing, the trial or offered in testifying declarant while asserted.” OEC prove the truth of the matter evidence pot 801(3). testimony admissible unless it Thus exceptions rule set forth qualified as one of the 803 or 804. OEC under OEC judge The trial admitted 803(24), provides: which 802], even following

“The are not excluded [OEC though the is available as a witness: declarant

(24) (a) by any specifically covered A statement not equivalent foregoing exceptions having but circumstantial trustworthiness, if that: guarantees the court determines relevant; (A) The is statement (B) probative point on the The statement more any propo- it is than other evidence which offered efforts; procure through nent can reasonable (C) general purposes Evidence Code justice will be served admission of and the interests of best the statement into evidence.

(b) may admitted under this subsec- A statement not be proponent to the adverse unless the of it makes known tion particulars party the intention to offer the statement and declarant, it, including the name and address sufficiently hearing, or as soon as in advance of the trial or apparent that such statement is practicable after it becomes hand, provide party the adverse probative of the issues at prepare opportunity to to meet it.” with a fair 803(24) Commentary clar to OEC Legislative The hearsay exception of the residual purpose scope ifies the County in Dallas v. Com approves holding It Oregon. in Co., 1961), Assurance (5th mercial Union Cir 286 F2d years newspaper published over 50 copy of a local admitting a fire in the describing an article containing unsigned earlier under construction. while it was County Dallas Courthouse inconceivable trustworthy because it was The article was a small a fire in journalist report town would the local if none in had The commentary courthouse fact occurred. Timber Access Ind. v. U.S. disapproves in holding Plywood, 503 P2d 482 admitting state- ment of the purchasing agent deceased of defendant it agent’s purchase was the intention logs unconditionally Access, In Timber plaintiff. from this court deemed the state- trustworthy ment because position the declarant was in a know ordinarily the facts and would not make a statement against his interest unless it was truthful. 263 Or at 519-20. 803(24) Legislative Commentary to OEC states: County may cases like Dallas exceptional

“Because arise future, in Legislative Assembly adopted this residual hearsay exception in Rule 803 and a in similar one Rule 804 [(3)(f)].[3] provisions It very rarely, intends that these be used only in application hearsay situations where rule exceptions and its other injustice. would result in These rules grant are not a broad authority judges to trial to admit hearsay statements.” The passage above reserved the legislature authority to fashion exceptions new to the hearsay rule and expressly authority circumscribed the of the judicial system to create categories hearsay which will be admissible under the residual exception. The authority of trial courts is limited to admitting hearsay very rarely exceptional cases where the particular circumstances of the declarant and the out-of-court statement demonstrably are trustworthy.3 804(3)(f) substantively 803(24) exceptions: OEC identical to OEC with two first, applicable only witness,” 804(3); it is “if the declarant is unavailable as a see OEC 804(1); and, second, OEC the statement must be “offered as evidence of a material fact,” 804(3)(f)(A), required OEC rather than be “relevant” as is in OEC 803(24) (a)(A). 803(24) commentary 804(3)(f). applies Legislative to OEC to OEC Commentary 804(3) (f). to OEC purposes analogy, 803(24) 804(b)(5) For we note that FRE and FRE are equivalent 803(24) 804(3)(f), respectively. to OEC and OEC The Senate committee approved legislation this federal stated: hearsay exception very rarely “It is intended that the residual will be used

only exceptional circumstances. The committee does not intend to establish a judges hearsay broad license for trial to admit statements that do not fall within exceptions 804(b). one of the other contained rules 803 and The residual exceptions rule, major judicial are not nieant to authorize revisions of the including present exceptions. major accomplished by its Such revisions are best legislative any sought action. It is intended that case in which evidence is to be subsections, care, judge admitted under these the trial will exercise no less 640 amici parties the cite

Although substantial authority type testimony to allow or disallow this of in child code, under the sections sex abuse cases residual counsel testimony miss the main reason this cannot be admissible hearsay exception. the residual That reason is that the under made a conscious decision restrict unexcited legislature to hearsay by enacting declarations of OEC sexual misconduct 803(18a), reads as which follows: Hearsay exception: availability “Rule of declarant 803. following

immaterial. The are not excluded Rule even though the as a witness: declarant available

(18a) Complaint of A sexual misconduct. after prosecuting sexual made the witness the misconduct alleged must offense. Such evidence be commission of made.” confined the fact that the hearsay specifically restricted evi- legislature Because misconduct, judge admitting trial erred dence of sexual hearsay testimony exception, the “catch-all” OEC under 803(24). inquiry does end our ruling erroneous not was, declaration as matter of part of the out-of-court

because law, 803(18a). OEC We now exam- evidence admissible under background. that rule its historical ine “Hearsay OEC with the words: 803 commences immaterial.” com- exception; availability declarant specific “is a of 23 mentary explains that list OEC hearsay rule, exceptions general exception and one establishing did under the law reflection and caution than courts common hearsay now-recognized exceptions rule.” Notes of Committee on 93-1277, reprinted Judiciary, Paragraph Report No. Note Senate (1984). § Note USCA Historical 1977), Mathis, (5th F2d 294 Cir which cites a like effect is States To United preference explained legal portion quote. live The Court the historical of the above testimony hearsay regard- opportunity for over with an cross-examination reliability ing of evidence. The court to better assess an out-of-court statement 803(24)] “tight does not must be held to insure that that reins [FRE concluded evidentiary body underlying developed our well and the notions emasculate our law Mathis, evidentiary well-respected A on matters 559 F2d at 299. commentator rules.” clearly 803(24) Congress FRE “was one has written the attitude generally resorting exception, have and the courts toward conservatism (3rd 1984). respect position.” § on Evidence 324.1 ed for that McCormick announced Assembly Oregon. Legislative be the attitude The same could said of is available as a the declarant apply whether or not theory that a upon the witness,” proceeds and that “Rule guaran- such circumstantial may possess statement pro- declarant need be ties of trustworthiness may be available.” the declarant though trial even duced at the 803(18a) complaint by “pros- refers to a However, OEC offense.” alleged of the after the commission ecuting witness added.) (Emphasis 803(18a) and the text of to OEC 803 preamble

The availability of preamble says The to in conflict. appear be immaterial, yet prosecuting the rule refers to a declarant is not defined in the “prosecuting The term witness” witness. prosecution In this case the and the defendant evidence code. of sexual three-year-old alleged victim stipulated elimi testify. stipulation to Did this incompetent abuse was witness? We think not. We prosecuting nate her status as the of a sexual referring the statute to be to the victim interpret testify, according preamble availability assault whose to to any event, In we conclude that to OEC is immaterial. prosecu defendant satisfy rights the confrontation of the judge for the trial to produce tion must the child in court will and in that sense the child competency hearing conduct a she even presented “prosecuting be as a witness” whether tually is allowed to or not. “pros- the term history reveals that legislative 803(18a) suggested first was

ecuting witness” as used in OEC a recom- Legislative making of Counsel in staff member meeting Evidence Commission at its Oregon mendation to recommended that January 1977. That staff member be pertaining complaints rape law to existing Oregon should complaints enacted. There was no mention that such in the trial. actually restricted to witnesses who testified be “prosecuting term witness” origin We have traced the of the under law. We believe rape in and sexual assault cases early outgrowth witness” is an language “prosecuting referred to the victim and sexual assault cases which rape cases We address these “prosecutrix.” sexual assault as the chronological order. Tom, 8 Or Oregon v. with the case of State Starting to evi- objections with (1879), the court was concerned victim, a child who of the

dence of the declarations years a child five prosecutrix, court as “the referred The court stated: 8 Or at 178. age.” prosecutrix the declarations of the “It is a rule that immediately rape, after the commission case made her crime, may to corroborate given be evidence trial, may proved made also be she and it on the complaint can not particulars of the made complaint, but the * * *” her statement. as to the truth of be admitted evidence court continued: * * “* an rape have been committed on charged If the be not now be infant, circumstances can her declarations of the * * *” complaint. 8 Or at made proved further than that she 180. in Tom admission of grounds two for specified The court — (2) testimony, (1) victim’s corroborate — of corroboration independent made prove she the rule. any rationale did not state

but Sargent, 110, 112-13, 49 P 889 In State eight- on an a sexual assault which involved a case the recent the admission of court stated that year-old girl, this demonstrate justified is to charged of a sex act complaint “* * * complaint upon the recent prosecutrix made that the outraged female to instinct of an ground it is the natural that or a near relative disclosure thereof to make immediate friend; and, do so her failure to inasmuch as confidential witness, prosecution is the discredit her as would tend to proof that affirmative anticipate such a claim permitted to she the fact that it that evidence of complaint was made. So is appearance her manner and complaint, as well as made such testimony of her made, as corroborative is admitted when * * charged touching the crime Ogden, (1901), the v. 195, 204, In State P 449 65 39 Or of sexual complaint of a recent the admission justified court was a circumstance complaint stating that assault “[t]he testimony.” adult corroborate tending to victim’s] [the “prosecutrix” to as the rape is referred of the alleged victim opinion. throughout Whitman, 415, of State v. Or 1914, in the case

In age of under victim was where the P 1121 consent, complaint rape is admissi- court stated person committing rape. ble but not the name of the court reiterated the rationale for the rule follows: as

“* * * girl When a a woman is ravished or assaulted with or her, rape an upon intent to commit the trial him, party appears against accused as it is thereof she witness prove, consent, age legal if material to she is above the complaint she outrage made of the within time a reasonable receiving testimony persons after it. The to whom evidence, was is original made admissible as any prosecutrix order to to corroborate rebut * *” * outrage. inference that she consented to the 72 Or at 416 (citations omitted). The court continued:

“* * * Where, however, bar, girl as the case at legal age yield under assaulted is to degrada- consent to her tion, arise, no such inference can and her failure make (citation omitted). is immaterial. Or at 417 The court nevertheless concluded that the admission of the “prosecutrix” evidence that the stated that the culprit her father was harmless error. The court referred to the seven- year-old as victim both the “prosecuting “pros- witness” and dissent, ecutrix.” In Justice Burnett stated that where “the prosecutrix consent, younger age is than the the reason of fails, the rule and with it the admissibility perishes.” 72 Or at 420.5

The last word from Oregon Supreme Court “complaint of sexual misconduct” Haworth, appears

rule in State v. 143 Or 21 P2d 1091 (1933). This court departed prior Haworth from the widely canard, Justice Burnett then off launched into now discarded see Bashaw, (1984): State 672 P2d 48 wisely very question “Someone has said in substance of the crime that it easy prove, charge, against. hard still harder to defend matter It is a knowledge ordinarily compose juries common that men who will not think or act dispassionately By frequently charge on a this case of sort. far too does the mere mob, cry ‘Crucify Crucify this, Taking advantage raise the easy the of him! him!’ it of is having feeling against up involving for ill one accused the to work a case a girl indignation everyone little and arouse the natural in the of who breast has a possibly designing heart above a beast. The of a mother a influence over such child great tending story legal rights ought is so to a fabricated the of that the defendant * * *” Whitman, strictly guarded. 415,421,143 (1914). be

to State v. P 1121 Whitman, supra, State v. to declara- expressed rationale in as by age referring under the of consent. After to tions victims 10-year-old victim as both the witness” and “prosecuting the the in “prosecutrix,” the court Haworth stated: consent, prosecutrix age is under it is not

“When the the necessary testimony by showing to corroborate her that she * * * case, rape the complaint. made In a under hearsay, admissible, testimony is the rule of complaint being such such expession outraged

the an female.” natural 143 Or at 497. approved following quotation: then the court

“ applying ‘In rule it has held the this been that while particulars permitted tell the witness should be complaint, may given enough be in evidence to show the still complaint, though even it involves to some nature of the thereof, rule particulars extent the and that the is not violated complaint by showing place evidence the time where the made, made, was under which it was the circumstances [and] * * making complaint when the the condition of victim added). (emphasis 1214.” R.C.L. 143 Or at 497-98 Haworth, in In the court allowed evidence act at the defendant’s “an of intercourse occurred [which] night May, 1931.” 143 Or at 496. The court home apparently recognized revealing fact of com- necessary descrip- it some extent to include some plaint tion of the acts. early from the cases above that

We conclude of sexual assault as court decisions referred victims “prosecutrix” irre either the witness” or “prosecuting by this Further, original expressed rationale spective age. rule, testimony for of adult court to corroborate consent, abandoned negate witnesses or to an inference of felt Oregon court Haworth in child victim cases. The age not rebut children of consent need though even under by any consent, outrage child inference of any resort other rationale for admission without justified as natural court felt that it would be Apparently the rule. adult, complain sexual as an even for a child to assault negate Although need to consent. though the child does not rule as this court would expressed one of the reasons testify to have her the adult victim to order logically require such complaint, her out-of-court corroborated

645 applicable rationale is not in case of a child victim. decision, forth our court setting any Without rationale for its in expression simply its last on the held that in the subject child, negate, case of a even there is no consent to though the normal course of events the victim abuse will tell of sexual unnecessary someone about the assault. It follows that it is for testify a child victim for predicate precondition as a or admission of the child’s complaint of sexual misconduct6 because there is no need for This conclusion is corroboration. by buttressed the fact that OEC legislature, placing 803(18a) as an OEC 803 must have decided that the exception, availability, testimony declarant, and therefore the of the was immaterial.

If the authors of the Evidence Code felt that declarant must at the precondition trial as a for admissibility statement, they out-of-court would have placed “complaints of sexual misconduct” under OEC 801(4) (a) specifically prior by refers to statements 801(4) (a) available witnesses. OEC reads: “(4) hearsay. Statements A which are not statement is hearsay if: (a) Prior statement witness. The declarant testifies at the trial hearing subject or and is to cross-examination statement, concerning the and the statement (A) testimony Inconsistent with the of the witness and given subject penalty perjury under oath at a trial, hearing proceeding, deposition; or other inor 6 Wigmore agrees: Professor his classic treatise on evidence witness, prosecutrix young “Where the is a child too to be a the statements receivable;4 because, although general should nevertheless be witness, qualifications ordinary yet peculiar declarant must not lack the of an present exception principle substantially inapplicable nature of the renders this children; furthermore, the orthodox common-law limitations as to children’s capacity inherently impractical testimonial are unsound and and should not be by analogy. extended Case, East, [Citing] (1779)], “4 Brazier’s Pleas of the Crown 443 so [1 Parke, B., (1840); Guttridge, People understood in R. v. 9 Car. & P. 471 v. Marrs, 376, (1900); States, 672, 125 Mich. 84 N.W. 284 Croomes v. 40 Tex. Crim. (1899), s.c., (1899); State, (Tex. Kenney 51 S.W. 924 S.W. 79 S.W. 817 1904); State, (1888).” Wigmore, Crim. Hannon v. 70 Wis. 36 N.W. 1 (Chadbourne 1976) omitted). (parentheticals § Evidence rev (B) Consistent with the of the witness and is express offered to rebut an inconsistent statement or an or implied charge against the witness of recent fabrication or motive; improper influence or or (C) person perceiv- One of identification of a made after added.) person.” (Emphasis ing the If legislature intended that the declarant must be available cross-examination, placed “complaints it would have 801(4)(a)(D) category sexual misconduct” in a fourth as OEC specifically instead of an under placing it as OEC availability 803 where as a witness is immaterial.7 803(18a) The commentary to OEC concludes: “The Legislative Assembly present intends to retain in full the present Oregon law to this The relating exception.” expressed law as in the last State v. covering subject, case Haworth, 497-98, hearsay enough 143 Or at allows in complaint, though declaration the nature of the “to show even particulars it involves thereof.” In this to some extent case, 20, 1981, the mother could that “on March at 5 recliner chair in the front p.m. my home while seated my three-year-old room her tee- person told me that licked explain tee.” The mother could the child’s normal use of the expression hearsay “tee-tee” rule. violating without

We now turn to the defendant’s contention that there As we was insufficient evidence to corroborate his confession. Lerch, recently 377, 398, P2d held in State v. proposed exactly Professor Michael H. Graham has such an amendment suggested wording Federal Rules of Evidence. His reads as follows: 801(d)(1) “Rule Hearsay Which Are Not

Statements by Prior Statement Witness following apply “The definitions under this article:

(d) Hearsay. hearsay A if— Statements Which Are Not statement (1) by hearing The declarant testifies at the trial or Prior Statement Witness. statement, subject concerning the and the and is to cross-examination (D) the declarant’s and is one statement is . . . consistent with ” against the will the declarant. initial sexual abuse Graham, Cry Rape: Prompt Complaint and the Federal Rules The The Doctrine Evidence, (1983) emphasized). (proposed language L 19 Willamette Rev 136.425(1)8 requires all that ORS is “some other proof,” may which means “evidence from which the jury draw an inference that prove tends to establish or that a crime has been committed.” As we previously quoted, the defendant 29,1981, admitted on March that the child “* * * got up my lap said, again got and she ‘I’ve a tee- tee, you one’, got pulled pants how come haven’t she downher quick pulls real up says pulled them back I ‘See’and it says, down and ‘Let grabbed me see’and her the waist and proceeded vaginal to lick her area.” three-year-old from a person that a “licked her certainly tee-tee” is “some other evidence” sufficient to cor- roborate the confession of the defendant. finally defendant contends that even though the

statement the child may qualify under a and be sufficient confession, corroborate his the introduc- tion of such testimony violated his right to confrontation under I, Article section Oregon Constitution, which provides that a defendant in a prosecution criminal has the right “to meet the face,” witnesses face to and under the Sixth Amendment to the United Constitution, States pro- vides that all prosecutions, criminal the accused shall “[i]n * * * enjoy the right to be confronted with the witnesses against him.”

We must decide state constitutional claims before federal constitutional issues are addressed. This court has repeatedly questions stated that “all of state law be considered disposed of before reaching a claim that this state’s law falls short of a imposed by standard the federal constitution on all states.” Kennedy, 260, State v. 262, 666 295 Or P2d 1316 (1983); Caraher, State 741, (1982); 293 Or 653 P2d 942 v. Sterling v. Cupp, 611, 614, (1981); 625 P2d 123 see also Linde, “First Things First”: Rediscovering the States’ Bill of Rights, 9 U Balt L (1980); Carson, Rev 379 Things “Last Last”: A Methodological Courts, Approach Legal Argument in State

8 136.425(1) provides: ORS defendant, “A judicial confession or admission of a whether in the course of otherwise, proceedings given against or cannot be in evidence him when it was threats; produced by only made under the influence of fear nor a confession proof to warrant his conviction without some other that the crime has sufficient (Emphasis added.) been committed.” 648 (1983). case, this we find that

19 L Rev 641 In Willamette Constitution, I, 11, Oregon under Article section of the face to face” has been right defendant’s “to meet the witnesses violated. independent separate result on reaching

In this I, 11, Oregon state under Article section grounds Constitution, nevertheless adopt reasoning we what Supreme determining Court of United States hearsay a unavailability of declarant and what constitutes hearsay reliability declara- adequate constitutes indicia confrontation clause. satisfy tions to our state constitutional Supreme are no Court cases There United States where children’s state dealing with confrontation a against ments have introduced criminal defendant. been However, relationship between the confrontation clause exceptions against hearsay to the rule was addressed Roberts, States in Ohio v. Supreme Court of the United 56, 2531, (1980). 2d After Ct 65 L Ed US 100 S commenting that a literal of the federal confrontation reading of any would the exclusion out-of- require, objection, clause trial, not at court statement made a declarant available have held hearsay statements been admissi court noted that spite ble evidence in of the confrontation clause since 243, 15 States, 337, L Ed v. 156 US S Ct Mattox United approved admission of evidence Roberts, supra, In Ohio v. the United States dying declaration. determining Supreme two-part Court established a test for statements of a witness whether admission out-of-court right at satisfies the defendant’s who does trial and, First, must confrontation. the declarant be unavailable must have second, the declarant’s out-of-court statements stated with reliability.” indicia of Justice Blackman “adequate can apparent “[reliability concurrence of the entire court that falls in a case the evidence be inferred without more where hearsay exception.” He added that firmly within a rooted excluded, at least evidence “must be absent other cases the particularized guarantees of trustworthiness.” showing of Roberts, 448 at 66. Ohio v. US mis “complaint of sexual hearsay exception pro since first to 1879 in this state

conduct” dates back Tom, in which supra, Or nounced State of 149, Evidence, p vol quoted Phillipps court from this published in traces the Phillipps which was 1868. Osborne, Regina v. case Car & M 624 English

the of hearsay exception in turn the to Baron Parke attributes Regina Gutteridge, v. (1840).9 writing 9 Car & P 471 reports H. in an entitled Professor Michael Graham article the Cry Rape: Prompt Complaint The Doctrine and of Evidence, Federal Rules L 19 Willamette Rev 491-92 of (1983):

“Early English required showing common law a that the cry general alarming victim raised the hue and of the —a neighborhood including cases of violent crimes sex —in complaints part offenses. Such were viewed as of the essential cry corroboration of the case. Because hue the and doctrine prior development against hearsay, existed of rule the testimony by the sexual regarding prompt abuse victim complaint identity unobjectiona- and the the of assailant was victim, any ble. In the person addition to who heard the complaint could as to what the victim said. later, showing

“Centuries courts of removed the burden cry the hue and crimes violence. Admission of the complaint offense, victim’s and including details the identi- assailant, however, of the fication continued as a matter of development tradition. With the against hearsay, of the rule English began courts complaint to hold that the details of the were inadmissible because the witness was under oath before subject the trier of fact to cross-examination when the (Footnotes complaint omitted.) was made.” Henry Professor Wigmore John wrote earlier that England, “In the evidential use of those outcries and explanations down us in came the 1700s as a traditional cases, cry. only relic of the old of hue law Not but such violence, charges show, in all the must accuser to sustain his charge, cry, alarming neighborhood that he made hue and year Regina Walker, Moody That same Baron Parke declared the earlier 212, 212 (1839): & Robinson is, instance, thing should, certainly jury “The of the sense that the first prosecutrix,

know nature made all that then she But, understand, usage said. I for reasons which never could has obtained prosecutrix’s only inquire, generally, should counsel whether a prosecutrix her, prisoner’s leaving made conduct towards the counsel bring particulars complaint by jury of the latter to before cross- examination.” freshly application principle of this after occurrence. following rape passage: seen in cases is (ca. 1250): Bracton, Legibus Angliae, f. 147

‘H. De De virgin been and over- When therefore has so deflowered powered, against peace king, the lord the forthwith cry to ought repair to with hue and while the act fresh she display to men the neighboring hills and there honest her, blood, her with injury to the blood and dress stained done dress; ought go tearing of her she to to and the so king provost sergeant of lord the of the hundred to the appeal her to the coroners and the viscount and make ” county Wigmore, 1760 court.’ 1 Evidence § at the first (Chadbourne 1972). rev clearly an ancient and

The declaration falls within been hearsay Although much has firmly exception.10 rooted by children written about whether out-of-court statements 11 reliable, inherently are we concerning sexual misconduct 10 rape, Wigmore of a woman’s comments that use of evidence of statements, simple her on the either as a fact or its detailed to corroborate supposed complain, her has been treated to rebut the inference from failure stand or merely non-hearsay, being admitted as the corroboration of some courts as He notes: witnesses. “* * * However, utterances, including some courts have believed that such statement, footing genuine hearsay of their details of could be received on assertions, practical present exception. apparently The difference would under the necessary using merely in the limitations such evidence testimonial be that apply, freely and the evidence could be more received. It corroboration would not remains, therefore, as a how far such a is receivable direct ascertain receivable, proper place hearsay If it its would seem to to the rule. is so supra hearsay exception].” present Wigmore, a 6 n at 240. under the head be [as 11 Testimony See, e.g., Note, The Child Victims Sex Abuse Prosecutions: of (1985); McNeil, Admissibility Innovations, Legislative 806 Two 98 Harv L Rev of (1984); Hearsay Perspective, L A 23 265 Child Victim in Kansas: Washburn J Defense Hearsay Casenote, Exception Resting Rule: The Final the “Tender Years” of Skoler, Hearsay Kreiner, (1984); Exceptions People 117 New 1 Det C L Rev for Abuse, (1984); Note, A 18 L 1 Tender Years Statement Sexual J Mar Rev Child’s of Sexually Way to Abused Courts: An Protect Doctrine Juvenile Effective Child, (1984); Comment, Confronting Child Victims Sex Abuse: The Urb L 249 61J Hearsay Exception, Puget Unconstitutionality L Rev U Sound Sexual Abuse 7 Hearsay (1984); Note, Exception: Sexually A Constitutional Abused 387 Infant Note, Hearsay (1984); Approach Analysis, Comprehensive to Child A 8 J Juv L 59 Cases, (1983); Liberalization in the L Rev Statements in Sex Abuse 83 Colum Cases, Admissibilty 7 J Juv Law in Child Abuse and Child Molestation Evidence Regarding (1983); Pierron, (dd): the New Kansas Law K.S.A. 60-460 (1983); Statements, Hearsay Admissibility J Bar Assn 88 52 Kan Child-Victim Hearsay Washington’s Exception, Comment, New Abuse Sexual Children — Witness, (1962). (1983); Stafford, L as a Rev 303 The Child Wash Wash L Rev 813 need not address that issue because the historical back ground of this exception. test,

As to the unavailability prosecution in the present stipulated case with defense counsel that the three- year-old child was incompetent testify and, aas witness therefore, the defendant conceded that the declarant was unavailable. The defendant argues stipulation this totally separate from any by the ruling court that the child was unavailable to at the trial. Defense counsel claims to have stipulated that the three-year-old witness was not com- petent because it was to defendant’s advantage that she not testify and that lawyer defense would turn down deal “[w]hat whereby complainant will not abe witness for the state.” Defendant contends stipulation from viewpoint his was nothing more than registering his objection to the compe- tency witness, that the state conceded incompetency by agreeing to stipulate and, finally, that defendant waived nothing.

We believe that question of unavailability of a hearsay declarant supposedly due to incompetency should not be left to the advocates in a criminal trial. The prosecution would be relieved from calling the witness and the defense relieved from having appear witness for trial. If the court is going to hearsay admit against statements a defendant to satisfy the confrontation rights accused, of an the court must ensure the declarant is in fact unavailable. The prosecution has the produce burden to the potential witness for the competency hearing. The defendant has no burden prove unavailability. recently As stated the Washington Supreme Court in Ryan, State v. 165, 171, 691 Wash 2d 197, 203 P2d (1984):

“Stipulated incompetency based on an erroneous under- standing find statutory of incompetency is too uncertain a basis to unavailability. production To excuse of a witness whose testimony against is offered a criminal through defendant hearsay repetition, a more showing required. certain [Ohio recognized Roberts good v.] that the faith effort incumbent on produce the State to require witness does not a futile act. if ‘But there possibility, remote, is a albeit that affirmative might produce declarant, measures obligation good of may Roberts, faith 74, demand their effectuation.’ 448U.S. at [original S.Ct. at 2543 emphasis]. unexplained failure exemplifies of produce the fears the children of the State allows RCW 9A.44.120 commentator that one evidence [which sexually of abused declarations children] child witness. Com- may disincentive to call the serve as a ment, Abuse: The Uncon- Confronting Victims Sex Child of Hearsay Exception, 7 U. stitutionality Sexual Abuse (1984). State Because the Puget L. Rev. at 398 Sound or to excuse apparent produce the children made no effort to pro- requirements, Roberts production, the first of the their unavailability, met.” is not duction or demonstrated are found many three-year-olds We are aware conducting by judges close evaluation incompetent after to be hand, years of tender make many children trials. On the other prosecution or for either the remarkably credible witnesses is so much criminal trial. Because there defense in a children, only judge the trial can we believe among variance hold, therefore, that before ruling competency. on We make living witness any available12 any declaration out-of-court trial, the defendant in a criminal against offered may be incompetent by the and declared produced must be witness I, Article section satisfy either court to the United States Constitution, Amendment or the Sixth not undertaken competency ruling This Constitution. reversed and and, therefore, the case must be in this case If the such a determination. to the trial court for remanded declaration competent, her out-of-court child is found to be may be admitted misconduct complaint of sexual present her as the testimony as well by her own evidence as to repeat the child’s words heard and can mother who 804(1) “Unavailability provides as follows: as a witness” the definition of OEC unavailability. ‘Unavailability includes situations as a witness’ “Definition the declarant: privilege (a) ground exempted by ruling from of the court on the Is statement; testifying concerning subject matter of a subject (b) refusing testify concerning matter of a statement Persists so; despite an order of the court to do statement; (c) memory subject of a of the matter Testifies to a lack of hearing (d) present or then because of death or to at the Is unable to be infirmity; physical existing or or mental illness or proponent (e) hearing statement of the declarant’s and the Is absent from (or procure in the case of an attendance the declarant’s has been unable to section, (3) (b), (c) (d) paragraph of this or of subsection under testimony) by process reasonable means.” or other attendance or declarant’s If the child is found be complaint. incompetent, her out-of- complaint court of sexual misconduct under admissible (18a) OEC 803 and is relevant corroboration of the confession of the defendant. of Appeals decision Court is reversed and proceedings

the case remanded to the trial court for opinion. inconsistent with this

CAMPBELL, J., dissenting. Just over year ago, Justice opened O’Connell his Krogness, 135, 152, dissent in State v. Or 388 P2d 120 * “* * the observation, court, with again finding this quite obviously defendant, guilty fashions the search law of to fit seizure his conviction.”

Today majority in this case has found another quite obviously guilty and has defendant fashioned the law of evidence to hasten his conviction. To reach its result majority meaning 803(18a) has distorted the of OEC and has completely ignored legislative the “official comment” to that rule. A complete copy of that comment is attached this dissent marked “Appendix A.” portions

The relevant question rule in are as follows: following by

“Rule 803. The are not excluded Rule even though the declarant is as available a witness:

“(18a) A sexual misconduct made prosecuting alleged witness after the commission of the offense. Such evidence must be confined fact that was made.”

Before discussing legislative what official com- includes, ment it is interesting to note what it does not majority opinion case, include. The in this holding that the hearsay testimony mother is admissible under OEC 803(18a), opens up question of whether the defendant has a right to confront I, the child as a witness under Article section 11 of Constitution Sixth Amendment the United Surely, States Constitution. if had legislature type intended to allow testimony, this official comment would have discussed the problem. confrontation It did not. legislative

The official comment two acknowledges 803(18a): recognizes subsection chief sources for OEC “This Waites, 137, App v. Or holdings the in State 470 P2d 188 (1971) jurisdictions” quoting and the trend all in other from on McCormick Evidence. Waites, v. is of supra,

Because State one the sources it It important in to examine it. is question, of the rule majority opinion. in the mentioned Waites, the defendant was con- supra, In State in the year-old daughter. his 14 She testified raping victed of 30,1969, place August on and that the rape trial that the took place on her the defendant had taken sexual assaults Bryan, a two-year period. regularly previous over the Mrs. counselor, that juvenile testified for the State. She testified approx- witness prosecuting she had a conversation with and imately alleged rape after the in that conversa- two weeks “(1) Bryan: told she had prosecuting witness Mrs. tion 1969; (2) 30, similar August assaulted on sexually been two-year period frequently had taken over a place assaults (3) date; place in the prior to that and all such assaults took victim’s home.” assigned the admission appealed

The defendant in Bryan’s testimony Appeals, error. The Court of Mrs. was Schwab, opinion by Chief reversed conviction Judge an page and said at 140: exception applicable prosecu- There is another

“3. early Oregon in recognized sexual offenses that was tions for 110, (1879). Sargent, 59 P It jurisprudence. State v. 32 Or person complaint of miscon- provides to whom a sexual that testify prosecuting witness can that a duct is made complaint made, but cannot as to the details of was consistently complaint. This rule been followed has Oregon, apparently adopted majority in a has also been See, Thus, 512, Rape 53. exact jurisdictions. CJS § other question presented Bryan, testifying as to

is whether Mrs. prosecuting witness the substance of the that her, scope of the limited exceeded the made recognized type. of this exception that has been cases guidance in the to determine “4. is little cases There a com- exactly permissible what constitutes impermissible testi- plaint distinguished made from was as clearly mony complaint, other than the as to the details identity rule that the witness cannot state established e.g., Whitman, assailant. See State v. alleged However, (1914). reviewing prior P 143 1121 after subject, recently cases this we stated: “* * * Hearsay permissible evidence is for the limited noth- made but purpose establishing was ing more. State v. (Emphasis supplied.) [Citations omitted.] Emery, supra, App Or n.l. Emery, but-nothing-more “Under the standards stated Bryan’s hearsay testimony Mrs. we conclude that as to the prior location of the assaults as to the assaults over a two- year period beyond scope here (Footnotes omitted.) discussed.” (18a)

The other chief source OEC is following 803 the quote commentary the official from McCormick on Evi- dence.1

“ cases, rape ‘In increasingly in cases of sex offenses generally, is evidence admissible that the victim made a complaint. only requirement The time made is that complaint delay been have made without a which is unex- plained offense, or is inconsistent with the occurrence of the general demanding aspect a much less time than with the typical origin, theory excited utterance In situation. its admissibility repel any was to inference that because the complain victim outrage transpired. did not no had fact Accordingly, testify, if the victim did not of com- evidence ” plaint was not admissible. McCormick section 709.’ 297 at (Footnotes omitted.)

The legislative comment after the hold- recognizing Waites, ing in State v. supra, jurisdic- the trend in other tions quote with the above from Evidence, McCormick states: provides person that a to whom a Oregon

“The rule sexual prosecuting misconduct is made witness can testify made, that a was but cannot details added.) complaint.” (Emphasis

The language underlined in the above quote taken Waites, from State v. supra, word App for word. 7 Or at 140. question There is no but legislature zeroed in so, 1 Although say quote legislative does comment is from Second (1972). (1984) The Third Edition Edition of McCormick on Evidence contains the quoted language same word for word. 656 expressing supra, law the Waites, as State of

on State v. legislature Oregon. concerned with whether the was not Oregon’s looking highest It court. for a clear was case expression rule. It found it in State u. and workable majority ignored supra, Waites, has the case. they case in the same fashion as considered the lawmakers County Ltd., Assurance Co. Commercial Union treated Dallas (5th 1961) (under 803(24)) they when 2d Cir rule 286 F 388 rejected Supreme cases, Access Court Timber one our Paper, Plywood-Champion Inc., 263 Or Co. v. Industries U.S. (1972). legislature This around the 509, 482 time 503 P2d Appeals Oregon instead of the 5th looked to the Court Circuit.

Immediately announcing Oregon after rule following support legislative it: cites cases to comment ten * * "* Waites, supra, 140; State v. State of App 7 Or Tom, Sargent, v. 110, 49 State (1879); v. P Or 889 8 177 32.Or Ogden, v. State v. State (1897); 195, (1901); P 65 449 39 Or Matson, Whitman, State v. 415, 143 (1914); P 1121 120 72 Or Haworth, State v. 495, 666, (1927); 21 P Or 427 143 Or Yielding, 419, State v. (1933); 238 Or P2d 395 P2d] [1091 Emery, v. State (1964); n 1. App 4 Or 527 at 530 480 P2d 445 Wilson, (1975).” State v. (1971); App P2d cases, the lead of State

In to the above case addition supra, Birchard, Waites, Or 59 P 468 State v. cites support the rule. cases have examination will show that all eleven

An many things in In each case the victim testified in common. year-old ages the 5 of the victims ran from the trial court. girl supra, Tom, to the adult woman State in State v. give supra. Matson, for what the two reasons cases (1) “Oregon legislative calls the Rule”: comment now credibility prosecuting wit- or corroborate the bolster (2) negate happen, ages event did and nesses all that the prosecuting cases of adult the inference of consent in the witnesses. Oregon concept underlying the to the entire

Basic requirement the of the sexual miscon- is the that victim rule testify is no what label at trial. It makes difference duct the personal put person as sexual the makes the who person long the This is demonstrated as that testifies. above from quote McCormick on Evidence which refers to Waites, as a person “victim” who testifies and State v. supra, uses the term If “prosecuting witnesses.” the person who has suffered the sexual misconduct does not testify, the evaporated. then reason for the rule has In that event, testimony there is no which needs to be corroborated as the fact that the event or as negated occurred to the inferred consent of adult victims.

It seems evident person a female who suffers misconduct, an instigates from act sexual who prosecu- the victim, tion and testifies at trial prosecutrix, the is a a and a person prosecuting testify witness. A does who not can be both However, victim a prosecutrix. a and a person who neither testifies the instigates prosecution only nor is a victim. It would seem that legislature for the above reasons the adopted the term “prosecuting along witness” with balance Waites, rule from State v. A supra. prosecuting witness is a person a who testifies at trial.

There is no case which “prosecuting defines witness,”2 (1951) but Law Dictionary, Black’s Fourth Edition page at 1385 defines the term: private person upon

“The whose or a information criminal testimony mainly accusation is founded and whose trial; relied on to secure a conviction at in more a particular sense, person injured, chiefly person who was property, by (as or constituting crime, alleged act assault, robbery, cases of negligence, bastardy, criminal like), instigates prosecution gives who evi- dence.” case,

In this none of the mother’s as to daughter what the her told is admissible an as 803(18a) rule under OEC did daughter because trial. The daughter prosecuting was not witness. The rule does not apply. surprising dictionary “prosecutrix” 2 It is not that the same “A law defines as prosecutor.”

female as used in “Prosecutor” the context of this case is defined: prosecution instigates upon “One who accused or which an is arrested prefers against suspects guilty.” party who an accusation whom he to be Dictionary, (1952) page Black’s Law Fourth Edition 1385. 803(18a) contends that OEC Not even State applies In a in this court the State said: to this case. brief testify, in “When a does the sexual child not must inapplicable is and the statement be excluded is

unless some basis of admission identified.” other (Respondent’s page of Law at filed March Memorandum 5, 1985.) legislative ends

The official comment with follow- Assembly Legislative ing: in intends to retain full “The present Oregon relating exception.” to How law this could they plainer? adopted legislature have said it It is obvious that supra. “Oregon Waites, as Rule” set out State is, is It is what the law this case about? about What upon interpret law to a not what the should be. We are called simple unambiguous is It was enacted in 1981and and statute. accompanied by legislative are clear comment. We a official upon judge-made rule tinker some ancient not called to with history. legislative has no parts majority opinion are Two of the inaccurate: (1) preamble It 803 and the states: “The OEC (18a) says appear preamble The test of 803 to be conflict. availability yet immaterial, rule the declarant is of 641) (299 prosecuting witness.” Or at refers a preamble part a law the of is not of State passed by Oregon. the 1981 Evidence Code chapter pro- legislature chapter as Section 100 of that 892. vides: headings captions

“The article section or included this only captions in this are Act are used included Act used provisions only explaining locating for convenience or part statutory a law this Act and are not intended be Oregon.” State preamble, “The follow- OEC 803 reads: Without though ing is 802, even the declarant are not excluded Rule necessarily is a This inconsistent available as witness:” (18a). type appears a of statement It to be neutral with (18a). they or If should be found neither adds detracts from (18a) provides: inconsistent then controls. ORS 174.020 be legisla- “In statute the intention the construction a pursued possible; general if ture to be when particular provision inconsistent, paramount are the later is particular general to the former. So a intent shall control one that is inconsistent with it.” (2) opinion 644, majority page The at states that in “* Haworth,

State 143 v. Or at 496: the court allowed *.* evidence the ‘an of complaint of act intercourse [which] ” the night occurred at defendant’s home May, on 1931.’

There are some interesting things about State v. Haworth which at page 496 states: assignment

“The first upon of error is based the admission of testimony prosecuting of the mother of the witness. 10- [A year-old girl who testified at the by the State. She This witness was called trial]. objection testified without she that was the Eleanor, witness; prosecuting mother of the that Eleanor complained to of an her act of intercourse with defendant and that it night May, occurred at the defendant’s home on a (Emphasis supplied.) 1931.”

The that the majority quotes was admitted objection, without but later the was mother allowed to over objection that Eleanor told her act the occurred “two or three weeks before school was out.” confusing.3 Haworth case is goes say: It on to

“No motion was made to strike the answer. It will be observed that the witness did not mention the name the of defendant Haworth, majority State v. (1933), 3 The refers 143 Or 495 21 1091 P2d as the Oregon Supreme ‘complaint “last word from the Court on the sexual of misconduct’ * * so, very Oregon to the rule Even it is obvious that the legislature Appeals, v. focused its attention on a 1971 case from the Court State of Waites, 137, App 7 P2d Or 470 188 instead a 1933 from case the Supreme Court. Although problem case, potential I would not reach the in this there ais conflict v. State Haworth and State v. majority between Waites is demonstrated Haworth, opinion. v. State 143 Or at 497 states: applying “In it this rule has been held that while the witness should not be

permitted particulars complaint, enough may given to tell the still be complaint, though evidence to show the nature of the even it involves some * * particulars thereof, extent the 22 R.C.L. 1214. Waites, hand, 141, App quotes approval State v. State On the other Or with from “* * * Emery, App 527, (1971): v. Hearsay 530 n P2d evidence is permissible purpose establishing limited that a was made but nothing suggests quoted portion of State more.” This dissent that the above Haworth, supra, legislative 803(18a) is dicta and that the comment to OEC in effect Emery, supra. approved State v. the statement from act.” 143 Or at 497. The conviction any particulars nor affirmed. opinion is the My majority chief about the “prosecuting of the term witness” expansion of definition testify. to include the victim of sexual conduct who does majority page majority opinion At 641 of the judge trial “child in court for the producing states that hearing” satisfy “prosecuting competency conduct will 803(18a) whether the child requirement witness” of OEC page eventually majority or continues testifies not. “language ‘prosecuting witness’ proposition with the sexual assault cases which outgrowth early rape an ‘pros- assault as the of the sexual referred to victim ” states: “We conclude page majority ecutrix.’ On early court decision referred from the cases above or ‘prosecuting either the witness’ victims of sexual assault as irrespective age. ‘prosecutrix’ are not red majority The above statements They nothing are contain that herrings, they purple sardines. is by majority. There no basis supports the result reached definition of expand recognized or fact to the well law a sexual conduct who witness to include victim of prosecuting Oregon as The rule is testify and a witness. appear does Waites, supra, v. word for word on the case of State based testified and referred year-old girl which the 14 victim expand had wanted to Oregon Legislature as If the a witness. it would have said so witness” “prosecuting definition comment. legislative official determines evi present that our legislature If the presented inadequate problems to deal with dence code is young are too against victims who sexual assaults committed hearsay trial, to consider a new may it wish with the defen problem to deal with the consistent be done This should right dant’s of confrontation. present exception twist a legislature rather than torture and Skoler, New which it was not intended. a result for serve Sexual Abuse. 18 Child’s Statement Hearsay Exceptions L. (1984); Comment 3 Colum. Rev J. L. Rev. 1 Mar. are on (1983). Washington and the states of Kansas Maybe Myatt, 237 Kan v. 697 P2d track. State right (1984). Ryan, 691 P2d 197 State (1985); 103 Wn2d 13.425(1) investigate and see if legislature might ORS requires the confession of a defendant to be corroborated is Lerch, law. In State v. necessary part still as a 377, 397, (1984), Or 677 P2d we commented that apparently require not all states the corroboration a confes- sion. 803(24) my

It is that understanding OEC limits the authority admitting very of trial courts to rare hearsay to County Dallas v. Commercial Union exceptional like cases Co., Assurance supra, where the particular circumstances declarant out-of-court statement are demonstra- bly trustworthy. This case fit exception. does not within the It legislature should also be noted that in its comment 803(24) specifically OEC stated it did not want the courts by themselves to create new “classes” of exceptions.

I would reverse the defendant’s conviction. Justice Lent and Justice Linde in this join dissent.

APPENDIX A (18a) Although “Subsection the Federal Rules of Evidence do not exception, Legislative Assembly mention this exempted a sexual misconduct from rule. This State v. recognizes subsection holding Waites, 137, 470 App P2d 188 and the trend in all jurisdictions: other

“ cases, ‘In rape increasingly in cases of sex offenses generally, evidence is admissible that the victim made complaint. only requirement time com- plaint delay have been made without which is unex- plained or inconsistent with the occurrence of the general, offense —in demanding aspect much less time (cid:127) typical than with the utterance In excited situation. its origin, theory admissibility repel any was to complain, inference that because the victim did not no outrage transpired. Accordingly, in fact if the victim did * * *’ testify, complaint evidence of was not admissible McCormick section 297 at 709.” Oregon provides

“The person rule whom a of sexual prosecuting misconduct is made testify made, witness can that a but cannot Waites, State v. complaint. as to the details of the Tom, supra, 140; State v. App 7 Or 8 Or 177 Sargent, (1879); 110, State v. (1897); State v. P 32 Or 49 889 662 Whitman, 195, (1901); Ogden, 39 State P 72 Or 449 Or Matson, (1914); 666, 253 State v.

415, 143 P 527 P 1121 120 Or Haworth, (1933); (1927); 495, 21 State v. 143 Or P2d [1091 Yielding, State v. (1964); State v. 238 Or 395 P2d] Emery, (1971; State v. App P2d 445 527 at n Or Wilson, 553, 532 (1975). App Accordingly it has P2d 825 testimony prior as to the been held that as to assaults and Waites, supra, State v. question, location of the assault Wilson, assailant, State v. identity as to supra, scope beyond and inadmissible.’ Assembly in full the Legislative

“The intends retain exception. relating present Oregon law to this

Case Details

Case Name: State v. Campbell

Court Name: Oregon Supreme Court

Date Published: Aug 20, 1985

Citation: 705 P.2d 694

Docket Number: CC 10-81-02891, 10-81-02892; CA A26455; SC S30758

Court Abbreviation: Or.