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Say WHAT????

In every CPS case I have heard of, normal rules of evidence regarding Hearsay are ignored. In court, you may hear a statement like this: "Your honor, I, the attorney for the state, assert that the CPS worker in the case stated to me that the child's CASA informed him that the child's teacher informed her that the child told her that the child sustained the black eye while falling off the bunk bed, but the child could not have fallen off the bunk bed your honor, because according to the CPS caseworker, the child's absent father informed the caseworker that the child's grandmother told him that the child's brother told her that the child's mother actually hit the child in anger."

Sound a bit ridiculous? Especially since the mother, grandmother, CASA, and teacher are all in the courtroom available to testify? Yet this statement is accepted as fact, entered into the record, and the mother has no opportunity to cross-examine the witness(s) against her or defend herself in any way. (This is a hypothetical example, not taken from an actual CPS case.) Had this statement been used as evidence in a criminal trial, or in a civil lawsuit, an objection would have been made, likely sustained, and this would not have been allowed. Is it true that it is allowed in juvenile dependency proceedings? I have been doing some research, and preliminary research says NO!

Below is an excerpt from ORS chapter 40-Evidence Code, and also a link to the entire section I excerpted from. When I find more information, I will link and update this page. If you have done research in this area, please share!

40.455 Rule 802. Hearsay rule. Hearsay is not admissible except as provided in ORS 40.450 to 40.475 or as otherwise provided by law. [1981 c.892 63]

40.460 Rule 803. Hearsay exceptions; availability of declarant immaterial. The following are not excluded by ORS 40.455, even though the declarant is available as a witness:

(18a)(a) A complaint of sexual misconduct, complaint of abuse as defined in ORS 107.705 or 419B.005, complaint of abuse of an elderly person, as those terms are defined in ORS 124.050, or a complaint relating to a violation of ORS 163.205 or 164.015 in which a person 65 years of age or older is the victim, made by the witness after the commission of the alleged misconduct or abuse at issue. Except as provided in paragraph (b) of this subsection, such evidence must be confined to the fact that the complaint was made.

(b) A statement made by a person concerning an act of abuse as defined in ORS 107.705 or 419B.005, a statement made by a person concerning an act of abuse of an elderly person, as those terms are defined in ORS 124.050, or a statement made by a person concerning a violation of ORS 163.205 or 164.015 in which a person 65 years of age or older is the victim, is not excluded by ORS 40.455 if the declarant either testifies at the proceeding and is subject to cross-examination, or is unavailable as a witness but was chronologically or mentally under 12 years of age when the statement was made or was 65 years of age or older when the statement was made. However, if a declarant is unavailable, the statement may be admitted in evidence only if the proponent establishes that the time, content and circumstances of the statement provide indicia of reliability, and in a criminal trial that there is corroborative evidence of the act of abuse and of the alleged perpetrator’s opportunity to participate in the conduct and that the statement possesses indicia of reliability as is constitutionally required to be admitted. No statement may be admitted under this paragraph unless the proponent of the statement makes known to the adverse party the proponent’s intention to offer the statement and the particulars of the statement no later than 15 days before trial, except for good cause shown. For purposes of this paragraph, in addition to those situations described in ORS 40.465 (1), the declarant shall be considered “unavailable” if the declarant has a substantial lack of memory of the subject matter of the statement, is presently incompetent to testify, is unable to communicate about the abuse or sexual conduct because of fear or other similar reason or is substantially likely, as established by expert testimony, to suffer lasting severe emotional trauma from testifying. Unless otherwise agreed by the parties, the court shall examine the declarant in chambers and on the record or outside the presence of the jury and on the record. The examination shall be conducted immediately prior to the commencement of the trial in the presence of the attorney and the legal guardian or other suitable person as designated by the court. If the declarant is found to be unavailable, the court shall then determine the admissibility of the evidence. The determinations shall be appealable under ORS 138.060 (1)(c) or (2)(a). The purpose of the examination shall be to aid the court in making its findings regarding the availability of the declarant as a witness and the reliability of the statement of the declarant. In determining whether a statement possesses indicia of reliability under this paragraph, the court may consider, but is not limited to, the following factors:

(A) The personal knowledge of the declarant of the event;

(B) The age and maturity of the declarant or extent of disability if the declarant is a person with developmental disabilities;

(C) Certainty that the statement was made, including the credibility of the person testifying about the statement and any motive the person may have to falsify or distort the statement;

(D) Any apparent motive the declarant may have to falsify or distort the event, including bias, corruption or coercion;

(E) The timing of the statement of the declarant;

(F) Whether more than one person heard the statement;

(G) Whether the declarant was suffering pain or distress when making the statement;

(H) Whether the declarant’s young age or disability makes it unlikely that the declarant fabricated a statement that represents a graphic, detailed account beyond the knowledge and experience of the declarant;

(I) Whether the statement has internal consistency or coherence and uses terminology appropriate to the declarant’s age or to the extent of the declarant’s disability if the declarant is a person with developmental disabilities;

(J) Whether the statement is spontaneous or directly responsive to questions; and

(K) Whether the statement was elicited by leading questions.

<b>(c) This subsection applies to all civil, criminal and juvenile proceedings.</b>

(d) This subsection applies to a child declarant, a declarant who is an elderly person as defined in ORS 124.050 or an adult declarant with developmental disabilities. For the purposes of this subsection, &#8220;developmental disabilities&#8221; means any disability attributable to mental retardation, autism, cerebral palsy, epilepsy or other disabling neurological condition that requires training or support similar to that required by persons with mental retardation, if either of the following apply:

(A) The disability originates before the person attains 22 years of age, or if the disability is attributable to mental retardation the condition is manifested before the person attains 18 years of age, the disability can be expected to continue indefinitely, and the disability constitutes a substantial handicap to the ability of the person to function in society.

(B) The disability results in a significant subaverage general intellectual functioning with concurrent deficits in adaptive behavior that are manifested during the developmental period.


***LEGAL DISCLAIMER***Nothing on this site should be construed as legal advice. I am not an attorney and cannot advise you in legal matters. If you need legal help, please consult an attorney.