Oregon Court Reverses After State Fails to Give Proper Child Hearsay Notice

In State v. Hernandez-Fabian, an Oregon defendant has successfully appealed his conviction for two counts of sexual abuse of a child by arguing that the prosecution failed to give sufficient notice it intended to offer child hearsay evidence.

Oregon statutory law allows admission of child hearsay statements under certain circumstances but requires that prosecutors give 15 days notice to defendants that they intend to use such evidence. One purpose of the notice requirement is to give defendants time to request that the trial court exclude the evidence.

Here, the prosecution provided discovery to the defendant that included a report prepared by a child-abuse-assessment center. The report’s cover sheets contained a boiler-plate announcement that the documents constituted notice that the prosecution would offer “all statements from child declarants covering acts of child abuse.”

The trial judge denied the defendant’s objections to the hearsay evidence. At trial, the prosecution presented a video interview of the child complainant. The interview had taken place at the child-abuse-assessment center. It fit with the child’s in-court testimony alleging abuse.

The defendant appealed, contending the notice was insufficient for two reasons: it failed to say which child hearsay statements would be presented, and it failed to say that they would be presented on video.

The court of appeals agreed, ruling that a notice is insufficient if it does not specify which child hearsay statements will be offered as evidence. The appellate court also noted that the prosecution must identify the means by which the statement will be introduced. The court found that the error was prejudicial, so it reversed the conviction.

The more specific notice requirements articulated in this case will enable other defendants to be more precise in their pre-trial objections to child hearsay statements.