[DV_listserv] Case

[Domestic Violence issues]

EVIDENCE-BIAS: In prosecution for sexual assault in which the victim was an
undocumented alien resident, the trial court erred when it precluded defendant from
asking her whether she intended to apply for a U-visa. The error was not harmless even
though defendant presented other evidence establishing her potential bias.
State v. Hernandez, 269 Or App 327, __ P3d __ (2015) (Washington County).

Facts: Defendant was charged with sexual harassment and third-degree sexual abuse based on
his conduct toward one of his employees, an undocumented alien resident. At trial, the victim
testified that she was aware that, as a crime victim, she could apply for a U-visa, although it was
disputed whether she learned of the U-Visa before or after defendant assaulted her. Defense
counsel asked the victim on cross-examination whether she was "planning" to apply for a U-visa,
the state objected, and the trial court (Judge Thomas Kohl) sustained the objection. Defense
counsel did not make an offer of proof. The jury found defendant guilty. On appeal, the state
conceded the trial court erred by precluding the question. See State v. Valle, 255 Or App 805
(2013) (evidence that complainant had applied for a U-visa was admissible impeachment
evidence). But the state argued that defendant's claim of error was not reviewable due to the
lack of an offer of proof and that, in any event, that the error was harmless because defendant
had already sufficiently established the victim's potential bias.

Held: Reversed and remanded (Duncan, P.J.). [1] "We have held that a party is not
required to make an offer of proof in order to preserve a challenge to a trial court's limitation on
cross-examination when the nature of the sought-after testimony was apparent from the party's
questioning and argument." In this case, "the trial court had sufficient information to rule on the
admissibility of the evidence. Further, notwithstanding the state's contrary contention, the
record in this case is sufficient-even without an offer of proof-for us to determine whether the
trial court erred, and if so, whether the error prejudiced defendant." [2] The trial court's error
was not harmless. Regardless of how defendant chose to use the victim's answer, whether or not
she intended to apply for a U-visa was relevant evidence of bias that had otherwise not been
established. Although defendant presented evidence that the victim had demanded $25,000 from
defendant based on the alleged incident, "evidence regarding a personal interest based on the
possibility of securing a money judgment is qualitatively different from evidence regarding a
personal interest based on the possibility of securing legal immigration status. Admission of
evidence of one type of bias does not render exclusion of evidence of another type of bias
harmless."
http://www.publications.ojd.state.or.us/docs/A150027.pdf

Notes: [a] The Oregon Supreme Court has held squarely and repeatedly that when a trial
court excludes testimony proffered by the defendant that ruling will not be reviewable on appeal
unless the defendant makes a specific offer of proof to establish what the witness actually would
have said-it is not enough for the defendant simply to speculate about what the witness might
have said. See, e.g., State v. Babson, 355 Or 383, 412 (2014); State v. Bowen, 340 Or 487, 501
(2006); State v. Affeld, 307 Or 125, 128 (1988). But, as this case illustrates, the Court of Appeals
nonetheless routinely reviews such claims even when the defendant made no offer of proof. You
should be aware that the Court of Appeals may review a ruling like this even though the
defendant did not make an offer of proof. Consequently, if the trial court sustains your objection
and the defendant does not make an offer of proof, that may not be the end of the matter. If it is
an important issue and you don't think that the witness actually would say what the defendant
assumes the witness would say, or if you believe the witness's answer would be inadmissible
anyway, it may be prudent for you to make your own offer of proof to establish that for the
record. [b] Impeachment questions as to a witness's bias or motivation are almost always
admissible, and the trial court has no discretion to exclude the question/answer. The trial court
only has discretion whether to admit additional evidence of bias or motivation-it cannot
exclude the original showing of bias/motivation. An objection will be upheld on appeal only if
the defendant has already introduced evidence of the witness's specific bias or motive.


*****CONFIDENTIALITY  NOTICE*****

This e-mail may contain information that is privileged, confidential, or otherwise exempt from disclosure under applicable law. If you are not the addressee or it appears from the context or otherwise that you have received this e-mail in error, please advise me immediately by reply e-mail, keep the contents confidential, and immediately delete the message and any attachments from your system. 

************************************
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://omls.oregon.gov/pipermail/dv_listserv/attachments/20150309/bbe73a77/attachment.html>