[DV_listserv] Legal Update

[Domestic Violence issues]

Here are a couple of legal updates from the DOJ Appellate division. While these are sex abuse cases, the disputed issues are directly relevant to and common in DV cases.

EVIDENCE-IMPEACHMENT: In prosecution for sexual abuse of a child, trial court
erred when it excluded defendant's proffered testimony that the victim and her
mother were biased because the mother had applied for a U-Visa.
State v. Real-Galvez, 270 Or App 224, __ P3d __ (2015) (Washington)
(AAG Matt Lysne). Based on repeated sexual assaults on the victim, a 15-year-old girl,
defendant was charged with first-degree sexual abuse and coercion. At trial, he proffered
evidence that the victim had a motive to falsely accuse him of sexual abuse so that the
victim's mother could gain an immigration benefit (a U-Visa). The trial court (Judge
Thomas Kohl) excluded: (1) cross-examination testimony of the victim that she knew
her mother was "undocumented"; (2) testimony from a witness (a co-worker with the
victim's mother), who said that after she and the victim and victim's mother had listened
to a radio program about a woman who reported sexual abuse and obtained an
immigration visa as a result, overheard the victim's mother tell the victim to accuse her
father of sexual abuse so that the victim's mother could obtain a visa; and (3) evidence
that the victim's mother had applied for a U-Visa based on the allegations that defendant
had sexually abused the victim. The jury found defendant guilty.
Held: Reversed and remanded (Tookey, J.). The trial court erred when it excluded
defendant's proffered impeachment evidence. [1] Defendant laid a sufficient foundation
to show the victim's possible interest in testifying-specifically, that the victim knew
about her mother's immigration status and that alleging sexual abuse could help her
mother obtain a U-Visa (i.e. the co-worker's testimony). "Defendant was not required to
show that [the victim] knew or believed that her mother would submit a U-Visa
application if [she] accused defendant of sexual abuse." [2] The error was not harmless.
http://www.publications.ojd.state.or.us/docs/A153489.pdf


EVIDENCE-HEARSAY: In prosecution for sexual abuse of a child, when the
victim testifies at trial subject to cross-examination, trial court need not determine
under OEC 803(18a)(b) whether she is "unavailable."
State v. Bailey, 270 Or App 14, __ P3d __ (2015) (Lincoln) (AAG Jeff Payne).
Defendant repeatedly sexually abused a five-year-old girl, and he was charged with
numerous sex crimes. At trial, the state presented evidence of interviews of the victim
recounting that defendant subjected her to a series of digital penetrations and genital
contacts. She testified and was cross-examined, but she could remember only one of
those incidents. Defendant was found guilty. On appeal, he argued that trial court (Judge
Thomas Branford) erred because, when the victim was unable to remember some
incidents, the was required by OEC 803(18a)(b) to determine whether she was
"available" as a witness, and it failed to do so.
Held: Affirmed (Ortega, P.J.). [1] OEC 803(18a)(b) permits admission of hearsay
evidence if the declarant either (1) "testifies at the proceeding and is subject to cross-examination"
or (2) "is unavailable as a witness but was chronologically or mentally
under 12 years of age when the statement was made." Under that exception, a hearsay
declarant is "unavailable" if he or she "has a substantial lack of memory of the subject
matter of the statement." [2] Under State v. Lobo, 261 Or App 741 (2014), if the
declarant testifies at the proceeding and is subject to cross-examination, the question of
unavailability becomes irrelevant. [3] Here, because the victim satisfied the first
condition of OEC 803(18a)(b), she did not have to satisfy the second condition and court
did not err by not determining her unavailability.
http://www.publications.ojd.state.or.us/docs/A153909.pdf

Note: The Court of Appeals summarily rejected defendant's argument that the
victim's lack of memory prevented effective cross-examination and thus violated his
constitutional right to confront the witnesses against him.

(This could be particularly helpful in DV cases where victims testify that they "can't remember.")

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