hearsay rule in Oregon

2026“We review ‘the trial court’s ultimate legal con- clusion, as to whether the hearsay statement is admissible under an exception to the hearsay rule, to determine if the trial court made an error of law.’ ” State v. Blaylock, 267 Or App 455, 460 , 341 P3d 758 (2014), rev den, 357 Or 299 (2015) (quoting State v. Cook, 340 Or 530, 537 , 135 P3d 260 (2006)).

2026“We review ‘the trial court’s ultimate legal con- clusion, as to whether the hearsay statement is admissible under an exception to the hearsay rule, to determine if the trial court made an error of law.’ ” State v. Blaylock, 267 Or App 455, 460 , 341 P3d 758 (2014), rev den, 357 Or 299 (2015) (quoting State v. Cook, 340 Or 530, 537 , 135 P3d 260 (2006)).

2011This court rejected that conclusion, although a majority held that the evidence nevertheless might be admissible under a different hearsay exception. *512 In analyzing the residual hearsay exception, this court observed that the commentary to that rule “clarifies the purpose and scope of the residual hearsay exception in Oregon.” Id. at 638 .

2007See State v. Campbell, 299 Or. 633, 639 , 705 P.2d 694 (1985) ("[The Legislative Commentary to OEC 803(28)] reserved to the legislature the authority to fashion new exceptions to the hearsay rule and expressly circumscribed the authority of the judicial system to create categories of hearsay which will be admissible under the residual exception.").

2018Turning to the merits of defendant's second assignment of error, the hearsay exception at issue, OEC 803(4), provides an exception for out-of-court "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or *279 present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." Historically, Oregon courts have admitted hearsay statements "made to a person for the purpose of diagnosis or treatment in view of the declarant's strong motivat

2018Turning to the merits of defendant's second assignment of error, the hearsay exception at issue, OEC 803(4), provides an exception for out-of-court "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or *279 present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." Historically, Oregon courts have admitted hearsay statements "made to a person for the purpose of diagnosis or treatment in view of the declarant's strong motivat

2011See, e.g., State v. George, 146 Or App 449 , 453 n 2, 934 P2d 474 (1997) (“ ‘Unavailability under OEC 804 is not necessarily the same as under the confrontation clauses of Article I, section 11, of the Oregon Constitution, or the Sixth Amendment to the United States Constitution.”); State v. Nielsen, 316 Or 611, 623 , 853 P2d 256 (1993) (citing OEC 804(l)(e) definition of unavailability as support for its conclusion that the state’s efforts to obtain a declarant were satisfactory under Article I, section 11). 7 Cf. Bornhoft v. Aubry, 178 Or App 625, 630-31 , 37 P3d 1049 , rev den, 334 Or 260 (

2011See, e.g., State v. George, 146 Or App 449 , 453 n 2, 934 P2d 474 (1997) (“ ‘Unavailability under OEC 804 is not necessarily the same as under the confrontation clauses of Article I, section 11, of the Oregon Constitution, or the Sixth Amendment to the United States Constitution.”); State v. Nielsen, 316 Or 611, 623 , 853 P2d 256 (1993) (citing OEC 804(l)(e) definition of unavailability as support for its conclusion that the state’s efforts to obtain a declarant were satisfactory under Article I, section 11). 7 Cf. Bornhoft v. Aubry, 178 Or App 625, 630-31 , 37 P3d 1049 , rev den, 334 Or 260 (

2011Chambers, 410 US at 298 (“The hearsay rule, which has long been recognized and respected by virtually every State, is based on experience and grounded in the notion that untrustworthy evidence should not be presented to the triers of fact.”); Sheedy v. Stall, 255 Or 594, 596 , 468 P2d 529 (1970) (“Hearsay evidence is excluded because of its untrustworthiness.”).

2011In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Id. at 302 (emphasis added). *518 Chambers remains good law.

2007See *552 State v. Nielsen, 316 Or 611, 618 , 853 P2d 256 (1993) (explaining that we consider statutory questions before constitutional claims); State v. Rodriguez-Castillo, 210 Or App 479, 488 , 151 P3d 931 (2007) (“We review for errors of law the trial court’s legal conclusion as to whether the statement is admissible under an exception to the hearsay rule.”).

2007See *552 State v. Nielsen, 316 Or 611, 618 , 853 P2d 256 (1993) (explaining that we consider statutory questions before constitutional claims); State v. Rodriguez-Castillo, 210 Or App 479, 488 , 151 P3d 931 (2007) (“We review for errors of law the trial court’s legal conclusion as to whether the statement is admissible under an exception to the hearsay rule.”).

2007Although the statement did not fit within a generally recognized exception to the hearsay rule, the Supreme Court found "an aura of trustworthiness about [the declarant's words] which makes evidence of them admissible." Timber Access Ind., 263 Or. at 519 , 503 P.2d 482 .

2007Although the statement did not fit within a generally recognized exception to the hearsay rule, the Supreme Court found "an aura of trustworthiness about [the declarant's words] which makes evidence of them admissible." Timber Access Ind., 263 Or. at 519 , 503 P.2d 482 .

2013Not only was the evidence admissible under a well-established exception to the hearsay rule, but it also was cabined in a sworn affidavit that subjected its author to penalty for false swearing.” Id.

2011Weighing in favor of admissibility *156 was the fact that the evidence “bore several traditional earmarks of reliability,” because it fell within a well-established exception to the hearsay rule, and the information contained in the hearsay “did not involve matters of opinion, interpretation or nuance; either they happened or they did not.” Id.

2014See, e.g., State v. Kendrick, 239 Or 512, 515-16 , 398 P2d 471 (1965) (holding that “spontaneous exclamations” fall within an exception to the hearsay rule when these criteria exist: “(1) there must be some occurrence startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must be before there has been time to contrive and misrepresent and while reflective powers are yet in abeyance; (3) the utterance must relate to the circumstances of the startling occurrence preceding it”).

2014See, e.g., State v. Kendrick, 239 Or 512, 515-16 , 398 P2d 471 (1965) (holding that “spontaneous exclamations” fall within an exception to the hearsay rule when these criteria exist: “(1) there must be some occurrence startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must be before there has been time to contrive and misrepresent and while reflective powers are yet in abeyance; (3) the utterance must relate to the circumstances of the startling occurrence preceding it”).

2003See also State v. Crain, 182 Or App 446 , 50 P3d 1206 (2002) (also applying Rumary analysis to materially indistinguishable facts). 3 In United States v. Inadi, 475 US 387, 392-94 , 106 S Ct 1121 , 89 L Ed 2d 390 (1986), the Court stated that Roberts had not established a general Confrontation Clause test and limited the unavailability rule described in Roberts to the hearsay exception applicable in that case — the exception for admission of prior testimony.

2003See also State v. Crain, 182 Or App 446 , 50 P3d 1206 (2002) (also applying Rumary analysis to materially indistinguishable facts). 3 In United States v. Inadi, 475 US 387, 392-94 , 106 S Ct 1121 , 89 L Ed 2d 390 (1986), the Court stated that Roberts had not established a general Confrontation Clause test and limited the unavailability rule described in Roberts to the hearsay exception applicable in that case — the exception for admission of prior testimony.

2025In either case, that would not change our analysis. 3 “The party seeking the admission of hearsay bears the burden of proving that the hearsay satisfies the requirements of a hearsay exception.” Arrowood Indemnity Co. v. Fasching, 369 Or 214, 222 , 503 P3d 1233 (2022).

2025In either case, that would not change our analysis. 3 “The party seeking the admission of hearsay bears the burden of proving that the hearsay satisfies the requirements of a hearsay exception.” Arrowood Indemnity Co. v. Fasching, 369 Or 214, 222 , 503 P3d 1233 (2022).

2026See State v. Cunningham, 337 Or 528, 538 , 99 P3d 271 (2004), cert den, 544 US 931 (2005) (“[T]he ultimate legal issue—whether the require- ments of OEC 803(2)[, the hearsay exception for excited utterances,] have been met and the hearsay statement is therefore admissible as an excited utterance—is a question of law as to which there is only one legally correct outcome.”).

2026See State v. Cunningham, 337 Or 528, 538 , 99 P3d 271 (2004), cert den, 544 US 931 (2005) (“[T]he ultimate legal issue—whether the require- ments of OEC 803(2)[, the hearsay exception for excited utterances,] have been met and the hearsay statement is therefore admissible as an excited utterance—is a question of law as to which there is only one legally correct outcome.”).

2006OEC 803(2) authorizes the admission, as an exception to the hearsay rule, of “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” In State v. Carlson, 311 Or 201 , 808 P2d 1002 (1991), the Supreme Court discussed the excited utterance exception in detail and explained that, for a statement to fall within its scope, the trial court must conclude by a preponderance of the evidence that three elements are satisfied: (1) a startling event or condition must have occurred; (2) the statement *529 must

2006OEC 803(2) authorizes the admission, as an exception to the hearsay rule, of “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” In State v. Carlson, 311 Or 201 , 808 P2d 1002 (1991), the Supreme Court discussed the excited utterance exception in detail and explained that, for a statement to fall within its scope, the trial court must conclude by a preponderance of the evidence that three elements are satisfied: (1) a startling event or condition must have occurred; (2) the statement *529 must

1985The Third Edition of McCormick on Evidence (1984) contains the same quoted language word for word. [2] It is not surprising that the same law dictionary defines a "prosecutrix" as "A female prosecutor." "Prosecutor" as used in the context of this case is defined: "One who instigates the prosecution upon which an accused is arrested or who prefers an accusation against the party whom he suspects to be guilty." Black's Law Dictionary, Fourth Edition (1952) page 1385. [3] The majority refers to State v. Haworth, 143 Or. 495 , 21 P.2d 1091 (1933), as the "last word from the Oregon Supreme Court on

1985The majority refers to State v. Haworth, 143 Or 495 21 P2d 1091 (1933), as the “last word from the Oregon Supreme Court on the ‘complaint of sexual misconduct’ exception to the hearsay rule * * Even so, it is very obvious that the Oregon legislature focused its attention on a 1971 case from the Court of Appeals, State v. Waites, 7 Or App 137 , 470 P2d 188 (1971), instead of a 1933 case from the Oregon Supreme Court.

1976In State v. Hutchison, 222 Or 533, 537 , 353 P2d 1047 (1960), our Supreme Court examined the rationale of the "spontaneous declaration” exception to the hearsay rule and said: "* * * The utterance is really an effusion.

1976In State v. Hutchison, 222 Or 533, 537 , 353 P2d 1047 (1960), our Supreme Court examined the rationale of the "spontaneous declaration” exception to the hearsay rule and said: "* * * The utterance is really an effusion.

2002Six years later, in White v. Illinois, 502 US 346 , 112 S Ct 736 , 116 L Ed 2d 848 (1992), the United States Supreme *336 Court held that the prosecution need not produce or demonstrate the unavailability of a declarant whose statements are admissible under the spontaneous declaration and medical examination exceptions to the hearsay rule.

2002Six years later, in White v. Illinois, 502 US 346 , 112 S Ct 736 , 116 L Ed 2d 848 (1992), the United States Supreme *336 Court held that the prosecution need not produce or demonstrate the unavailability of a declarant whose statements are admissible under the spontaneous declaration and medical examination exceptions to the hearsay rule.

2026See State v. Cunningham, 337 Or 528, 538 , 99 P3d 271 (2004), cert den, 544 US 931 (2005) (“[T]he ultimate legal issue—whether the require- ments of OEC 803(2)[, the hearsay exception for excited utterances,] have been met and the hearsay statement is therefore admissible as an excited utterance—is a question of law as to which there is only one legally correct outcome.”).

2026State v. Cunningham, 337 Or 528, 537-38 , 99 P3d 271 (2004), cert den, 544 US 931 (2005); OEC 801 - 804 (defining hearsay and explaining the respective exceptions).

2018Second, we have recognized that a fact reliable enough to serve as the basis for a diagnosis is also reliable enough to escape hearsay proscription." United States v. Renville , 779 F.2d 430 , 436 (8th Cir. 1985) (citing United States v. Iron Shell , 633 F.2d 77 , 84 (8th Cir. 1980), cert. den. , 450 U.S. 1001 , 101 S.Ct. 1709 , 68 L.Ed.2d 203 (1981) ) (internal citations and quotation marks omitted).

1990The exception recognizes that a patient seeking medical treatment has a "strong motive" to provide truthful information and that "life and death decisions are made by physicians in reliance on such facts and as such should have sufficient trustworthiness to be admissible in a court of law." See United States v. Iron Shell, 633 F.2d 77, 83-84 (8th Cir.1980), cert. den. 450 U.S. 1001 , 101 S.Ct. 1709 , 68 L.Ed.2d 203 (1981); accord State v. Robinson, 153 Ariz. 191 , 735 P.2d 801, 814 (1987) ("`indicia of reliability' sufficient to avoid a violation of the confrontation clause" could be "inferred

2011Chambers, 410 US at 298 (“The hearsay rule, which has long been recognized and respected by virtually every State, is based on experience and grounded in the notion that untrustworthy evidence should not be presented to the triers of fact.”); Sheedy v. Stall, 255 Or 594, 596 , 468 P2d 529 (1970) (“Hearsay evidence is excluded because of its untrustworthiness.”).

2011Chambers, 410 US at 298 (“The hearsay rule, which has long been recognized and respected by virtually every State, is based on experience and grounded in the notion that untrustworthy evidence should not be presented to the triers of fact.”); Sheedy v. Stall, 255 Or 594, 596 , 468 P2d 529 (1970) (“Hearsay evidence is excluded because of its untrustworthiness.”).

2002Adequate indicia of reliability exist if the declarations either fall within a “firmly rooted” hearsay exception or are “supported by particularized guarantees of trustworthiness.” Nielsen, 316 Or at 627 (quoting Idaho v. Wright, 497 US 805, 816 , 110 S Ct 3139 , 111 L Ed 2d 638 (1990)). *564 The state does not contend that OEC 803(26), enacted in 1999, embodies a “firmly rooted” exception to the hearsay rule.

2002Adequate indicia of reliability exist if the declarations either fall within a “firmly rooted” hearsay exception or are “supported by particularized guarantees of trustworthiness.” Nielsen, 316 Or at 627 (quoting Idaho v. Wright, 497 US 805, 816 , 110 S Ct 3139 , 111 L Ed 2d 638 (1990)). *564 The state does not contend that OEC 803(26), enacted in 1999, embodies a “firmly rooted” exception to the hearsay rule.