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Child Makes Statements Recanting the Accusation to Others

Fact situation:  Child victim makes accusatory statements to various persons, both medical, treating and non-expert.  Child makes statements recanting the accusation to others.  DA wants to exclude the recantation statements as hearsay.  See ORE 803 18a(b), which discusses statements not excluded by Rule 802 (hearsay) even though the declarant is available, which includes “a statement made by a person concerning an act of abuse.”  Obviously the recantation concerns an act of abuse.  Be sure to honor the rule’s 15-day notice requirement.  Obviously the statements would be admissible in the event the child testifies to impeach, and could well be used to impeach the reliability of the statements (think pretrial hearing on the admissibility given the court’s requirement to find “trustworthiness”).  State v. Higgins, 136 Or App 590 (1995).  See also, State v. LeClair, 83 Or App 121 (1986) (meaningful cross-examination allows impeachment by prior recantation even if the evidence code does not).

Criminal defense attorneys must be aware of their obligations to warn non-U.S. citizens of the immigration effects (specifically, potential for deportation) of a conviction.  If not, it is ineffective assistance of counsel.  See Padilla v. Kentucky, U.S. Supreme Court case.

Often times we are faced with trying to interpret computer language in trying to untangle the intentionality or lack thereof regarding the downloading of illegal pornographic materials.  One expert witness who may assist is Roy Miller at Case Works.  E-mail:

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