Rule 803. Hearsay exceptions
- availability of declarant immaterial
Source:
Section 40.460 — Rule 803. Hearsay exceptions; availability of declarant immaterial, https://www.oregonlegislature.gov/bills_laws/ors/ors040.html.
See also annotations under ORS 41.670, 41.680, 41.690, 41.840, 41.870 and 41.900 in permanent edition.
Notes of Decisions
Under former similar statutes
Records of regularly conducted activity (ORS 41.690)
This section vests considerable discretion in trial judge concerning admissibility. Stanfield v. Laccoarce, 284 Or 651, 588 P2d 1271 (1978)
Whether routinely prepared record is made within regular course of business depends on whether circumstances under which record is made furnish sufficient checks against misstatement to invest record with some badge of truthfulness. Lepire v. Motor Vehicles Div., 47 Or App 67, 613 P2d 1084 (1980)
Excited utterance (ORS 41.870)
Declarations of rape victim identifying her attacker that were made more than hour after attack were admissible under “spontaneous exclamation” exception to hearsay rule. State v. Wilson, 20 Or App 553, 532 P2d 825 (1975)
Victim’s initial communication with police, consisting of five-minute telephone conversation, was “spontaneous exclamation” within exception to hearsay rule. State v. Jones, 27 Or App 767, 557 P2d 264 (1976), Sup Ct review denied
Under Evidence Code
In general
This Rule permits officer who testifies in criminal trial to read relevant parts of his report into record when he has insufficient present recollection to testify fully and accurately. State v. Scally, 92 Or App 149, 758 P2d 365 (1988)
Hearsay statement may not be admitted over Confrontation Clause objection unless prosecution produces declarant or demonstrates unavailability of declarant. State v. Wilcox, 180 Or App 557, 43 P3d 1182 (2002), Sup Ct review denied
Hearsay statement does not violate confrontation right where declarant is unavailable or is available, actually present and ready to testify. State v. Crain, 182 Or App 446, 50 P3d 1206 (2002)
If victim’s statements relate victim’s memory of past intention and present conclusions about past event, and conclusions are based on reflection of past, statements are inadmissible as statements of memory and belief. State v. Richardson, 253 Or App 75, 288 P3d 995 (2012), Sup Ct review denied
Excited utterance
Out-of-court statements made by four-year old child describing sexual assaults that might have occurred as much as 30 days earlier were not properly admissible as “excited utterance” exception to hearsay rule. State v. Hollywood, 67 Or App 546, 680 P2d 655 (1984), Sup Ct review denied
Statements made by four-year old victim to her mother about alleged sexual attack were made within short period of time with no intervening opportunity for outside influence and therefore it was not error to admit them as excited utterances. State v. Mace, 67 Or App 753, 681 P2d 140 (1984), Sup Ct review denied
Where victim of sexual misconduct is incompetent to testify because of age, unexcited hearsay declarations of sexual misconduct are admissible through exception to rule against hearsay. State v. Harris, 78 Or App 490, 712 P2d 242 (1986)
Statements to 911 dispatcher and statements made to responding police officer qualified as excited utterances. State v. Wolfs, 119 Or App 262, 850 P2d 1139 (1993), Sup Ct review denied
Statement is related to startling event if subject of statement would likely be evoked by event. State v. Stonaker, 149 Or App 728, 945 P2d 573 (1997), Sup Ct review denied; State v. Yong, 206 Or App 522, 138 P3d 37 (2006), Sup Ct review denied
Admission of hearsay statement consisting of excited utterance is not exempt from state constitutional requirement that declarant be unavailable. State v. Moore, 159 Or App 144, 978 P2d 395 (1999), aff’d 334 Or 328, 49 P3d 785 (2002)
Hearsay statement is admissible based on declarant unavailability only if state is unable to produce declarant as witness. State v. Jackson, 187 Or App 679, 69 P3d 722 (2003)
Appellate review of trial court’s findings regarding circumstances of statement is for supporting evidence in record, but appellate review of trial court’s legal conclusion that statement is or is not excited utterance uses error of law standard. State v. Cunningham, 337 Or 528, 99 P3d 271 (2004)
Where defendant assaulted and threatened victim then held victim captive after assault, and victim made statements to third party upon victim’s escape 24 hours after assault, victim’s statements were “excited utterance” as used in this section because victim was under continuous emotional shock or unabated fright when victim made statements. State v. Underwood, 266 Or App 274, 337 P3d 969 (2014), Sup Ct review denied
Statements of state of mind
Statements by murder victim to friends that indicated that victim did not like defendant were admissible to show that victim did not voluntarily have sexual intercourse with defendant even though statement suggested something about conduct of defendant. State v. Engweiler, 118 Or App 132, 846 P2d 1163 (1993), Sup Ct review denied
Statement regarding intent of declarant to engage in action is not evidence of likely action by another person. Holmes v. Morgan, 135 Or App 617, 899 P2d 738 (1995), Sup Ct review denied
Statement that merely reflects or that reasonably supports inference regarding declarant’s state of mind constitutes assertion of declarant’s state of mind. State v. Clegg, 332 Or 432, 31 P3d 408 (2001)
Statements made for purposes of medical diagnosis or treatment
When it is shown that physician reasonably relied on child-victim’s identification of her abuser as member of her family in diagnosing and treating victim, physician’s testimony about victim’s identification of her abuser is admissible. State v. Vosika, 83 Or App 298, 731 P2d 449 (1987)
Testimony of two physicians, including victim’s identification of defendant as person who had sexually abused her, was admissible as statement for medical diagnosis or treatment because physician would reasonably rely on statements and record supports finding that victim understood she was being interviewed and examined for diagnosis and treatment. State v. Newby, 97 Or App 598, 777 P2d 994 (1989), Sup Ct review denied
Where patient’s statements to physician about defendant’s presence in her home, his abusive conduct, and her resulting fears communicated to physician ongoing cause of patient’s situational depression and were used to diagnose and treat patient’s illness, statements were admissible under this section. State v. Moen, 309 Or 45, 786 P2d 111 (1990)
Statements made by child victim to physician and to physician’s assistant about sexual abuse by defendant were admissible as statements made for purposes of medical diagnosis or treatment, even though reason victim was taken to physician was for possible diagnosis of sexual abuse. State v. Logan, 105 Or App 556, 806 P2d 137 (1991); State v. Barkley, 108 Or App 756, 817 P2d 1328 (1991), aff’d 315 Or 420, 846 P2d 390 (1993); State ex rel Juv. Dept. v. Jackson, 122 Or App 389, 858 P2d 158 (1993), Sup Ct review denied
Videotaped interview of child victim of sexual abuse was admissible because interview was for purpose of diagnosing child’s condition and prescribing treatment. State v. Verley, 106 Or App 751, 809 P2d 723 (1991), Sup Ct review denied; State v. Barkley, 108 Or App 756, 817 P2d 1328 (1991), aff’d 315 Or 420, 846 P2d 390 (1993); State ex rel Juv. Dept. v. Cornett, 121 Or App 264, 855 P2d 171 (1993)
Admissibility of videotape depends on admissibility of statements contained in it. State v. Verley, 106 Or App 751, 809 P2d 723 (1991), Sup Ct review denied; State v. Barkley, 108 Or App 756, 817 P2d 1328 (1991), aff’d 315 Or 420, 846 P2d 390 (1993)
Identification statement made by five-year old child to physician during medical examination is admissible in prosecution for sexual abuse of child. State v. Alvarez, 110 Or App 230, 822 P2d 1207 (1991), Sup Ct review denied
Testimony by nurse who questioned child about cause of child’s severe burns was admissible as statement for medical diagnosis or treatment because child made statements for purpose of medical diagnosis by nurse. State v. Jensen, 313 Or 587, 837 P2d 525 (1992)
Statements made by medical expert concerning medical diagnosis or treatment of child abuse, although supporting child’s testimony, are admissible and are not direct comment on child’s credibility. State v. Wilson, 121 Or App 460, 855 P2d 657 (1993), Sup Ct review denied
Videotape of child’s interview with personnel at hospital-based child abuse evaluation center was admissible because child’s statements to interviewer met all three requirements of hearsay exception for statements made for purposes of medical diagnosis or treatment. State v. Wilson, 121 Or App 460, 855 P2d 657 (1993), Sup Ct review denied
Whether child is old enough to understand that questions are part of medical exam is based on circumstances, not chronological age of child. State v. Booth, 124 Or App 282, 862 P2d 518 (1993), Sup Ct review denied
Where statement meets requirements of exception, statement may originate with person other than declarant or person being diagnosed or treated. State ex rel Juvenile Dept. v. Pfaff, 164 Or App 470, 994 P2d 147 (1999), Sup Ct review denied
Public records
Certificates of breathalyzer inspections are admissible under public records exception to hearsay rule. State v. Smith, 66 Or App 703, 675 P2d 510 (1984)
Admissibility of Intoxilyzer certifications as public records exception to hearsay rule does not violate constitutional right to confrontation of witnesses. State v. Conway, 70 Or App 721, 690 P2d 1128 (1984), Sup Ct review denied; State v. William, 199 Or App 191, 110 P3d 1114 (2005), Sup Ct review denied
Public records exception for certified copy of document does not apply to original document newly created by data retrieval from Law Enforcement Data System and attested to by person performing retrieval. State v. Barber, 209 Or App 604, 149 P3d 260 (2006), Sup Ct review denied
Warrants are admissible under public records exception to hearsay rule. State v. Carter, 238 Or App 417, 241 P3d 1205 (2010), Sup Ct review denied
Investigative reports
“Factual findings” resulting from investigation pursuant to law are limited to reports based upon personal knowledge of investigator or upon verifiable fact rather than opinion. Sleigh v. Jenny Craig Weight Loss Centres, Inc., 161 Or App 262, 984 P2d 891 (1999), modified 163 Or App 20, 988 P2d 916 (1999)
Under subsection (8) of this section, where sheriff’s office made transcript of victim’s interview during course of criminal investigation, transcript was produced “pursuant to duty imposed by law,” which is not limited to only common-law and statutory duties, but includes those observations made in course of carrying out duty. State v. Edmonds, 364 Or 410, 435 P3d 752 (2019)
Subsection (8) of this section, not subsection (6), controls admission of law enforcement records in criminal cases. State v. Edmonds, 364 Or 410, 435 P3d 752 (2019)
Complaint of sexual misconduct
Testimony of mother recounting statement made by three-year-old victim to mother about sexual attacks by defendant were admissible as exception to hearsay rule allowing complaint of sexual misconduct by prosecuting witnesses; it is unnecessary for child victim to testify as precondition for admission of child’s complaint of sexual misconduct. State v. Campbell, 299 Or 633, 705 P2d 694 (1985)
Out of court statement by unavailable child concerning abuse of another child was not within scope of exception. State v. Hill, 129 Or App 180, 877 P2d 1230 (1994)
For purposes of requirement that proponent make intention to offer hearsay statement known to adverse party no later than 15 days before trial, trial begins on scheduled trial date unless postponement has been granted. State v. Iverson, 185 Or App 9, 57 P3d 953 (2002), Sup Ct review denied
Statements “concerning” abuse include victim’s whole expression of abuse and how victim related that expression to others. State v. Hobbs, 218 Or App 298, 179 P3d 682 (2008), Sup Ct review denied
To offer particulars of statement, state must identify specifically which hearsay statements it will offer as evidence. State v. Chase, 240 Or App 541, 248 P3d 432 (2011)
Statement made by special victim of abuse or sexual conduct
Intention of legislature under this rule is that defendant not be convicted on hearsay alone. State v. Renly, 111 Or App 453, 827 P2d 1345 (1992)
Statement by unavailable declarant is not admissible unless additional evidence corroborates statement. State v. Renly, 111 Or App 453, 827 P2d 1345 (1992)
Victim recantation of prior statements does not render otherwise competent victim unable to communicate or testify in court. State v. Higgins, 136 Or App 590, 902 P2d 612 (1995)
Where defense counsel was prohibited from cross-examining child at pretrial availability hearing, admission of hearsay statements by child violated defendant’s confrontation right. State v. Kitzman, 323 Or 589, 920 P2d 134 (1996)
Where victim testifies and is available for cross-examination, “child” means unmarried person under 18 years of age. State v. Lamb, 161 Or App 66, 983 P2d 1058 (1999)
As prerequisite to admitting hearsay statement by unavailable declarant, court must: 1) determine that statement is circumstantially reliable; 2) determine whether independent admissible or nonadmissible corroborating evidence supports admission of statement; and 3) make explicit findings as to evidence relied upon for corroboration. State v. Reed, 173 Or App 185, 21 P3d 137 (2001), Sup Ct review denied
Where there are multiple hearsay statements by declarant, corroborative evidence need not bear directly or distinctly on particular statement. State v. Reed, 173 Or App 185, 21 P3d 137 (2001), Sup Ct review denied
“Good cause” for failure to give timely notice of intent to use statement refers to circumstances that cause prosecution to be unable to comply with notice requirement. State v. McKinzie, 186 Or App 384, 63 P3d 1214 (2003), Sup Ct review denied
Inclusion of statement in discovery provided to defendant does not satisfy requirement that prosecution provide timely notice of intent to present statement at trial. State v. McKinzie, 186 Or App 384, 63 P3d 1214 (2003), Sup Ct review denied
As used in this section, “child declarant” means person who was child at time of making declaration, and hearsay exception still applies if declarant is adult at time of proceeding during which party seeks to introduce statement. State v. Juarez-Hernandez, 316 Or App 741, 503 P3d 487 (2022)
Domestic violence
Other evidence presented at trial that corroborates truth of hearsay statement cannot be used to show statement itself has particularized guarantees of trustworthiness. State v. Wilcox, 180 Or App 557, 43 P3d 1182 (2002), Sup Ct review denied
To “explain” incident of domestic violence for purposes of domestic violence hearsay exception, statement must state or suggest cause or reason for particular incident at issue, rather than give general background about accused or nature of parties’ relationship. State v. Curiel, 316 Or App 215, 504 P3d 629 (2021)
Residual exceptions
Spontaneous statements made by four-year-old child while she was still suffering pain from sexual assault were made under circumstances guaranteeing trustworthiness and were, therefore, admissible under this exception to hearsay rule. State v. Hollywood, 67 Or App 546, 680 P2d 655 (1984), Sup Ct review denied
Exception embodied in this section is to be used rarely and only in situations where interest of justice requires. Star Rentals v. Seeberg Constr., 83 Or App 44, 730 P2d 573 (1986)
Exception for document retrieved from Law Enforcement Data System and attested to by person performing retrieval applies only to document newly created by retrieval, not to certified copies. State v. Barber, 209 Or App 604, 149 P3d 260 (2006), Sup Ct review denied
Residual exception as basis for admission of hearsay ordinarily may not be asserted for first time on appeal. State v. Rodriguez-Castillo, 345 Or 39, 188 P3d 268 (2008)
When determining trustworthiness of hearsay statement not specifically covered by statute, trial courts should not consider credibility of witness who provides corroborating testimony. State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491, 256 P3d 104 (2011)
COMPLETED CITATIONS (for ORS 41.900 in permanent edition): State v. O’Brien, 6 Or App 34, 485 P2d 434, 486 P2d 592 (1971), aff’d262 Or 30, 496 P2d 191 (1972)
Law Review Citations
Under Evidence Code
22 WLR 421 (1986); 26 WLR 402, 406, 423 (1990); 37 WLR 299 (2001); 82 OLR 1125 (2003)
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