State v. Campbell , 299 Or. 633 ( 1985 )

JONES, J.

This is a review of a criminal conviction. The issue is whether hearsay testimony by the mother of a three-year-old declarant who is the alleged victim of sexual abuse is admissible in evidence. We hold that under the facts of this case part of the testimony was admissible and part not if the defendant’s confrontation rights are satisfied.

Defendant was convicted after a non-jury trial of two counts of Sodomy in the First Degree¹ based upon a written confession of the defendant and the testimony of the mother of the victim relating to the court the child’s statements made later in the same day that the abuse allegedly occurred.

The mother testified that defendant was the babysitter for her children on March 20, 1981. Defendant and the witness’s (the mother’s) daughter were alone from 8:30 a.m. until noon. At that time, the witness’s son returned from school. Defendant and the two children were alone until 4:10 p.m., at which time mother returned home from work. At approximately 5 p.m., after defendant had left, mother and daughter had a conversation which mother related to the court:

“A. I asked [my daughter] ‘Well, what did you do today?’ * * * ‘Did you have fun today’ or - that type of prequestion. And she said, ‘Robin [defendant’s first name] takes my clothes off every day.’

“Q. All right.

“A. And when I got my breath I said, ‘Well, that’s a silly thing to do.’ And I says, ‘Why does he do that?’ And she says - oh, no. No. She says, ‘He swings me around and stuff.’ And I said, ‘Oh!’

“And then she dropped her head a little bit and ‘He licks my tee-tee.’ ”²

This testimony was admitted under OEC 803(24), the residual exception to the hearsay rule, over objection by defendant. The defendant’s taped confession had been previously received. The relevant portions of the defendant’s confession are as follows:

“[Police Officer]: Okay, will you make a voluntary statement regarding the incidents?

“[Defendant]: Yes.

U* * * * *

“[Police Officer]: Okay. Would you tell me where this occurred at.

“[Defendant]: In the recliner chair in the front room.

“[Police Officer]: Okay, do you know the address? Of the house?

“[Defendant]: 650 River Road.

“[Police Officer]: Okay, and can you tell me in your own words what your capacity at that house was at the time?

((* * * * *

“[Defendant]: Babysitting.

u* * * * *

“[Police Officer]: Okay. Can you tell me in your own words on Monday, March 2nd, what occurred and at approximately what time.

“[Defendant]: Well about 11:00 a.m., Bethany got on my lap and, uh, she says, ‘I have a tee-tee’ as she refers to it and she pulled down her pants and said ‘see’ and then I said, ‘Let me see’ and then, uh, pulled her pants off of her and ....

<<$ * * * *

“[Defendant]: And then I, uh, proceeded to lick her tee-tee.

“[Police Officer]: Okay. Which, okay now you are referring to her vaginal area?

“[Defendant]: As she calls it.

* * * *

“[Police Officer]: Okay, explain to me how you did that.

“[Defendant]: Well, I had my hands around her waist and I pulled her up to my face.

“[Police Officer]: Okay. Okay, for approximately how long did you do that to her?

“[Defendant]: Approximately two or three minutes.

“[Police Officer]: Okay. Then to Monday, March the 9th, would you explain that to me?

“[Defendant]: Well, the same as the other time and all, all of them happened at eleven o’clock in the morning and we was watching TV at the time.

U* * :f: * *

“[Defendant]: And then I grabbed her by the waist and pulled her up to my face.

“[Police Officer]: Okay and what did you do at that point?

“[Defendant]: Licked her vaginal area.

“[Police Officer]: Okay, for approximately how long?

“[Defendant]: For two to three minutes.

“[Police Officer]: Okay. Referring to Monday, March 16th, will you explain that one to me please?

“[Defendant]: Okay. She got onto my lap again, and uh, she uh, said the same thing as she did before, ‘I’ve got a tee-tee, how come you haven’t’, and she pulled down her pants and said, ‘See, what I have’ and I said ‘let me see’ and then I pulled her pants off of her and her panties and pulled her to my face and proceeded to lick her tee-tee.

“[Police Officer]: For approximately how long?

“[Defendant]: Two to three minutes.

“[Police Officer]: Okay, Okay, Friday, March the 20th, would you explain that one for me?

“[Defendant]: Okay, it was, uh, uh, the same thing. She got up on my lap again and she said, ‘I’ve got a tee-tee, how come you haven’t got one’, she pulled down her pants real quick and pulls them back up and says, ‘See’ and I pulled it down and says, ‘Let me see’ and grabbed her by the waist and proceeded to lick her vaginal area.”

The Court of Appeals affirmed without opinion.

The mother’s testimony in this case was hearsay because it was “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” OEC 801(3). Thus the testimony was pot admissible unless it qualified as one of the exceptions to the hearsay rule set forth in OEC 803 or 804.

The trial judge admitted the testimony under OEC 803(24), which provides:

“The following are not excluded by [OEC 802], even though the declarant is available as a witness:

(24) (a) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that:

(A) The statement is relevant;

(B) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and

(C) The general purposes of the Oregon Evidence Code and the interests of justice will best be served by admission of the statement into evidence.

(b) A statement may not be admitted under this subsection unless the proponent of it makes known to the adverse party the intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing, or as soon as practicable after it becomes apparent that such statement is probative of the issues at hand, to provide the adverse party with a fair opportunity to prepare to meet it.”

The Legislative Commentary to OEC 803(24) clarifies the purpose and scope of the residual hearsay exception in Oregon. It approves the holding in Dallas County v. Commercial Union Assurance Co., 286 F2d 388 (5th Cir 1961), admitting a copy of a local newspaper published over 50 years earlier containing an unsigned article describing a fire in the Dallas County Courthouse while it was under construction. The article was trustworthy because it was inconceivable that a small town journalist would report a fire in the local courthouse if none in fact had occurred. The commentary disapproves the holding in Timber Access Ind. v. U.S. Plywood, 263 Or 509, 503 P2d 482 (1972), admitting a statement of the deceased purchasing agent of defendant that it was the agent’s intention to purchase logs unconditionally from plaintiff. In Timber Access, this court deemed the statement trustworthy because the declarant was in a position to know the facts and ordinarily would not make a statement against his interest unless it was truthful. 263 Or at 519-20.

The Legislative Commentary to OEC 803(24) states:

“Because exceptional cases like Dallas County may arise in the future, the Legislative Assembly adopted this residual hearsay exception in Rule 803 and a similar one in Rule 804 [(3)(f)].[³] It intends that these provisions be used very rarely, and only in situations where application of the hearsay rule and its other exceptions would result in injustice. These rules are not a broad grant of authority to trial judges to admit hearsay statements.”

The passage above reserved to the legislature the authority to fashion new exceptions to the hearsay rule and expressly circumscribed the authority of the judicial system to create categories of hearsay which will be admissible under the residual exception. The authority of trial courts is limited to admitting hearsay very rarely in exceptional cases where the particular circumstances of the declarant and the out-of-court statement are demonstrably trustworthy.^{3 4}

Although the parties and amici cite substantial authority to allow or disallow this type of testimony in child sex abuse cases under the residual sections of the code, counsel miss the main reason this testimony cannot be admissible under the residual hearsay exception. That reason is that the legislature made a conscious decision to restrict unexcited hearsay declarations of sexual misconduct by enacting OEC 803(18a), which reads as follows:

“Rule 803. Hearsay exception: availability of declarant immaterial. The following are not excluded by Rule 802, even though the declarant is available as a witness:

(18a) Complaint of sexual misconduct. A complaint of sexual misconduct made by the prosecuting witness after the commission of the alleged offense. Such evidence must be confined to the fact that the complaint was made.”

Because the legislature specifically restricted hearsay evidence of sexual misconduct, the trial judge erred in admitting the hearsay testimony under the “catch-all” exception, OEC 803(24).

The erroneous ruling does not end our inquiry because part of the out-of-court declaration was, as a matter of evidence law, admissible under OEC 803(18a). We now examine that rule and its historical background.

OEC 803 commences with the words: “Hearsay exception; availability of declarant immaterial.” The commentary explains that OEC 803 “is a list of 23 specific exceptions and one general exception to the hearsay rule, which apply whether or not the declarant is available as a witness,” and that “Rule 803 proceeds upon the theory that a hearsay statement may possess such circumstantial guaranties of trustworthiness that the declarant need not be produced at the trial even though the declarant may be available.” However, OEC 803(18a) refers to a complaint by the “prosecuting witness after the commission of the alleged offense.” (Emphasis added.)

The preamble to OEC 803 and the text of 803(18a) appear to be in conflict. The preamble says the availability of the declarant is immaterial, yet the rule refers to a prosecuting witness. The term “prosecuting witness” is not defined in the evidence code. In this case the prosecution and the defendant stipulated that the three-year-old alleged victim of sexual abuse was incompetent to testify. Did this stipulation eliminate her status as the prosecuting witness? We think not. We interpret the statute to be referring to the victim of a sexual assault whose availability to testify, according to the preamble to OEC 803, is immaterial. In any event, we conclude that to satisfy the confrontation rights of the defendant the prosecution must produce the child in court for the trial judge to conduct a competency hearing and in that sense the child will be presented as a “prosecuting witness” whether she eventually is allowed to testify or not.

The legislative history reveals that the term “prosecuting witness” as used in OEC 803(18a) first was suggested by a staff member of Legislative Counsel in making a recommendation to the Oregon Evidence Commission at its meeting on January 13, 1977. That staff member recommended that the existing Oregon law pertaining to complaints of rape be enacted. There was no mention that such complaints should be restricted to witnesses who actually testified in the trial. We have traced the origin of the term “prosecuting witness” in rape and sexual assault cases under Oregon law. We believe the language “prosecuting witness” is an outgrowth of early rape and sexual assault cases which referred to the victim of sexual assault as the “prosecutrix.” We address these cases in chronological order.

Starting with the case of State of Oregon v. Tom, 8 Or 177 (1879), the court was concerned with objections to evidence of the declarations of the victim, a child who was referred to by the court as “the prosecutrix, a child five years of age.” 8 Or at 178. The court stated:

“It is a rule that the declarations of the prosecutrix in the case of rape, made immediately after the commission of the crime, may be given in evidence to corroborate her testimony on the trial, and it may also be proved that she made complaint, but the particulars of the complaint made can not be admitted in evidence as to the truth of her statement. * * *”

The court continued:

“* * * If the rape be charged to have been committed on an infant, her declarations of the circumstances can not now be proved further than that she made complaint. * * *” 8 Or at 180.

The court in Tom specified two grounds for admission of the complaint — (1) to corroborate the victim’s testimony, and (2) to prove she made complaint independent of corroboration — but did not state any rationale for the rule.

In State v. Sargent, 32 Or 110, 112-13, 49 P 889 (1897), a case which involved a sexual assault on an eight-year-old girl, this court stated that the admission of the recent complaint of a sex act charged is justified to demonstrate

“* * * that the prosecutrix made recent complaint upon the ground that it is the natural instinct of an outraged female to make immediate disclosure thereof to a near relative or confidential friend; and, inasmuch as her failure to do so would tend to discredit her as a witness, the prosecution is permitted to anticipate such a claim by affirmative proof that complaint was made. So it is that evidence of the fact that she made such complaint, as well as her manner and appearance when made, is admitted as corroborative of her testimony touching the crime charged * *

In State v. Ogden, 39 Or 195, 204, 65 P 449 (1901), the court justified the admission of a recent complaint of sexual assault stating that “[t]he complaint was a circumstance tending to corroborate [the adult victim’s] testimony.” The alleged victim of the rape is referred to as the “prosecutrix” throughout the opinion.

In 1914, in the case of State v. Whitman, 72 Or 415, 143 P 1121 (1914), where the victim was under the age of consent, the court stated that the complaint of rape is admissible but not the name of the person committing the rape. The court reiterated the rationale for the rule as follows:

“* * * When a girl or a woman is ravished or assaulted with an intent to commit rape upon her, and at the trial of the party accused thereof she appears as witness against him, it is material to prove, if she is above the age of legal consent, that she made complaint of the outrage within a reasonable time after receiving it. The testimony of persons to whom the complaint was made is admissible as original evidence, in order to corroborate the prosecutrix and to rebut any inference that she consented to the outrage. * * *” 72 Or at 416 (citations omitted).

The court continued:

“* * * Where, however, as in the case at bar, the girl assaulted is under legal age to yield consent to her degradation, no such inference can arise, and her failure to make complaint is immaterial. 72 Or at 417 (citation omitted).

The court nevertheless concluded that the admission of the evidence that the “prosecutrix” stated that the culprit was her father was harmless error. The court referred to the seven-year-old victim as both the “prosecuting witness” and “prosecutrix.” In dissent, Justice Burnett stated that where “the prosecutrix is younger than the age of consent, the reason of the rule fails, and with it the admissibility of the testimony perishes.” 72 Or at 420.⁵

The last word from the Oregon Supreme Court on the “complaint of sexual misconduct” exception to the hearsay rule appears in State v. Haworth, 143 Or 495, 21 P2d 1091 (1933). This court in Haworth departed from the prior rationale expressed in State v. Whitman, supra, as to declarations by victims under the age of consent. After referring to the 10-year-old victim as both the “prosecuting witness” and the “prosecutrix,” the court in Haworth stated:

“When the prosecutrix is under the age of consent, it is not necessary to corroborate her testimony by showing that she made complaint. * * * In a rape case, under the exception to the rule of hearsay, such testimony is admissible, such a complaint being the natural expession of an outraged female.”

143 Or at 497.

The court then approved the following quotation:

“ ‘In applying this rule it has been held that while the witness should not be permitted to tell the particulars of the complaint, still enough may be given in evidence to show the nature of the complaint, even though it involves to some extent the particulars thereof, and that the rule is not violated by evidence showing the time and place where the complaint was made, the circumstances under which it was made, [and] the condition of the victim when making the complaint * *

22 R.C.L. 1214.” 143 Or at 497-98 (emphasis added).

In Haworth, the court allowed in evidence the complaint of “an act of intercourse [which] occurred at the defendant’s home on a night in May, 1931.” 143 Or at 496. The court apparently recognized that in revealing the fact of the complaint it is necessary to some extent to include some description of the acts.

We conclude from the cases above that the early court decisions referred to the victims of sexual assault as either the “prosecuting witness” or the “prosecutrix” irrespective of age. Further, original rationale expressed by this court for the rule, to corroborate the testimony of adult witnesses or to negate an inference of consent, was abandoned in child victim cases. The Oregon court in Haworth felt that even though children under the age of consent need not rebut any inference of consent, the complaint of outrage by the child justified admission without resort to any other rationale for the rule. Apparently the court felt that it would be as natural for a child to complain of sexual assault as an adult, even though the child does not need to negate consent. Although one of the reasons for the rule as expressed by this court would logically require the adult victim to testify in order to have her testimony corroborated by her out-of-court complaint, such rationale is not applicable in the case of a child victim. Without setting forth any rationale for its decision, our court in its last expression on the subject simply held that in the case of a child, even though there is no consent to negate, in the normal course of events the victim of sexual abuse will tell someone about the assault. It follows that it is unnecessary for a child victim to testify as a predicate or precondition for admission of the child’s complaint of sexual misconduct⁶ because there is no need for corroboration. This conclusion is buttressed by the fact that the legislature, in placing OEC 803(18a) as an OEC 803 exception, must have decided that the availability, and therefore the testimony of the declarant, was immaterial.

If the authors of the Oregon Evidence Code felt that the declarant must testify at the trial as a precondition for admissibility of the out-of-court statement, they would have placed “complaints of sexual misconduct” under OEC 801(4) (a) which specifically refers to prior statements by available witnesses. OEC 801(4) (a) reads:

“(4) Statements which are not hearsay. A statement is not hearsay if:

(a) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is

(A) Inconsistent with the testimony of the witness and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition;

(B) Consistent with the testimony of the witness and is offered to rebut an inconsistent statement or an express or implied charge against the witness of recent fabrication or improper influence or motive; or

(C) One of identification of a person made after perceiving the person.” (Emphasis added.)

If the legislature intended that the declarant must be available for cross-examination, it would have placed “complaints of sexual misconduct” in a fourth category as OEC 801(4)(a)(D) instead of specifically placing it as an exception under OEC 803 where availability as a witness is immaterial.⁷

The commentary to OEC 803(18a) concludes: “The Legislative Assembly intends to retain in full the present Oregon law relating to this exception.” The present Oregon law as expressed in the last case covering the subject, State v. Haworth, 143 Or at 497-98, allows in enough of the hearsay declaration “to show the nature of the complaint, even though it involves to some extent the particulars thereof.” In this case, the mother could testify that “on March 20, 1981, at 5 p.m. at my home while seated in the recliner chair in the front room my three-year-old told me that a person licked her tee-tee.” The mother could explain the child’s normal use of the expression “tee-tee” without violating the hearsay rule.

We now turn to the defendant’s contention that there was insufficient evidence to corroborate his confession. As we recently held in State v. Lerch, 296 Or 377, 398, 677 P2d 678 (1984), all that ORS 136.425(1)⁸ requires is “some other proof,” which means “evidence from which the jury may draw an inference that tends to establish or prove that a crime has been committed.” As we previously quoted, the defendant admitted on March 29,1981, that the child

“* * * got up on my lap again and she said, ‘I’ve got a tee-tee, how come you haven’t got one’, she pulled down her pants real quick and pulls them back up and says ‘See’ and I pulled it down and says, ‘Let me see’ and grabbed her by the waist and proceeded to lick her vaginal area.”

The complaint from a three-year-old that a person “licked her tee-tee” is certainly “some other evidence” sufficient to corroborate the confession of the defendant.

The defendant finally contends that even though the statement by the child may qualify under a hearsay exception and be sufficient to corroborate his confession, the introduction of such testimony violated his right to confrontation under Article I, section 11, of the Oregon Constitution, which provides that a defendant in a criminal prosecution has the right “to meet the witnesses face to face,” and under the Sixth Amendment to the United States Constitution, which provides that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.”

We must decide state constitutional claims before federal constitutional issues are addressed. This court has repeatedly stated that “all questions of state law be considered and disposed of before reaching a claim that this state’s law falls short of a standard imposed by the federal constitution on all states.” State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983); State v. Caraher, 293 Or 741, 653 P2d 942 (1982); Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123 (1981); see also Linde, “First Things First”: Rediscovering the States’ Bill of Rights, 9 U Balt L Rev 379 (1980); Carson, “Last Things Last”: A Methodological Approach to Legal Argument in State Courts, 19 Willamette L Rev 641 (1983). In this case, we find that under Article I, section 11, of the Oregon Constitution, the defendant’s right “to meet the witnesses face to face” has been violated.

In reaching this result on independent and separate state grounds under Article I, section 11, of the Oregon Constitution, we nevertheless adopt the reasoning of the Supreme Court of the United States in determining what constitutes unavailability of a hearsay declarant and what constitutes adequate indicia of reliability of hearsay declarations to satisfy our state constitutional confrontation clause.

There are no United States Supreme Court cases dealing with confrontation where children’s hearsay statements have been introduced against a criminal defendant. However, the relationship between the confrontation clause and the exceptions to the rule against hearsay was addressed by the Supreme Court of the United States in Ohio v. Roberts, 448 US 56, 100 S Ct 2531, 65 L Ed 2d 597 (1980). After commenting that a literal reading of the federal confrontation clause would require, on objection, the exclusion of any out-of-court statement made by a declarant not available at trial, the court noted that hearsay statements have been held admissible in evidence in spite of the confrontation clause since Mattox v. United States, 156 US 237, 243, 15 S Ct 337, 39 L Ed 409 (1895), which approved the admission of evidence of a dying declaration. In Ohio v. Roberts, supra, the United States Supreme Court established a two-part test for determining whether admission of out-of-court statements of a witness who does not testify at trial satisfies the defendant’s right to confrontation. First, the declarant must be unavailable and, second, the declarant’s out-of-court statements must have “adequate indicia of reliability.” Justice Blackman stated with apparent concurrence of the entire court that “[reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” He added that in other cases the evidence “must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 US at 66.

The hearsay exception of “complaint of sexual misconduct” dates back to 1879 in this state since first pronounced in State of Oregon v. Tom, supra, 8 Or at 180, in which this court quoted from Phillipps on Evidence, vol 1, p 149, which was published in 1868. Phillipps traces the exception to the English case of Regina v. Osborne, 2 Car & M 624 (1842), which in turn attributes the hearsay exception to Baron Parke writing in Regina v. Gutteridge, 9 Car & P 471 (1840).⁹ Professor Michael H. Graham reports in an article entitled The Cry of Rape: The Prompt Complaint Doctrine and the Federal Rules of Evidence, 19 Willamette L Rev 489, 491-92 (1983):

“Early English common law required a showing that the victim raised the hue and cry — a general alarming of the neighborhood — in cases of violent crimes including sex offenses. Such complaints were viewed as part of the essential corroboration of the case. Because the hue and cry doctrine existed prior to the development of the rule against hearsay, testimony by the sexual abuse victim regarding a prompt complaint and the identity of the assailant was unobjectionable. In addition to the victim, any person who heard the complaint could testify as to what the victim said.

“Centuries later, courts removed the burden of showing the hue and cry for crimes of violence. Admission of the victim’s complaint and details of the offense, including identification of the assailant, however, continued as a matter of tradition. With the development of the rule against hearsay, English courts began to hold that the details of the complaint were inadmissible because the witness was not under oath before the trier of fact subject to cross-examination when the complaint was made.” (Footnotes omitted.)

Professor John Henry Wigmore wrote earlier that

“In England, the evidential use of those outcries and explanations came down to us in the 1700s as a traditional relic of the old law of hue and cry. Not only in such cases, but in all charges of violence, the accuser must show, to sustain his charge, that he made hue and cry, alarming the neighborhood freshly after the occurrence. The application of this principle to rape cases is seen in the following passage:

‘H. De Bracton, De Legibus Angliae, f. 147 (ca. 1250): When therefore a virgin has been so deflowered and overpowered, against the peace of the lord the king, forthwith and while the act is fresh she ought to repair with hue and cry to the neighboring hills and there display to honest men the injury done to her, the blood and her dress stained with blood, and the tearing of her dress; and so she ought to go to the provost of the hundred and to the sergeant of the lord the king and to the coroners and to the viscount and make her appeal at the first county court.’ ” 1 Wigmore, Evidence § 1760 (Chadbourne rev 1972).

The declaration clearly falls within an ancient and firmly rooted hearsay exception.¹⁰ Although much has been written about whether out-of-court statements by children concerning sexual misconduct are inherently reliable,¹¹ we need not address that issue because of the historical background of this hearsay exception.

As to the unavailability test, the prosecution in the present case stipulated with defense counsel that the three-year-old child was incompetent to testify as a witness and, therefore, the defendant conceded that the declarant was unavailable. The defendant argues that this stipulation was totally separate from any ruling by the court that the child was unavailable to testify at the trial. Defense counsel claims to have stipulated that the three-year-old witness was not competent because it was to defendant’s advantage that she not testify and that “[w]hat defense lawyer would turn down a deal whereby the complainant will not be a witness for the state.” Defendant contends that the stipulation from his viewpoint was nothing more than registering his objection to the competency of the witness, that the state conceded incompetency by agreeing to stipulate and, finally, that defendant waived nothing.

We believe that the question of unavailability of a hearsay declarant supposedly due to incompetency should not be left to the advocates in a criminal trial. The prosecution would be relieved from calling the witness and the defense relieved from having the witness appear for trial. If the court is going to admit hearsay statements against a defendant to satisfy the confrontation rights of an accused, the court must ensure the declarant is in fact unavailable. The prosecution has the burden to produce the potential witness for the competency hearing. The defendant has no burden to prove unavailability. As recently stated by the Washington Supreme Court in State v. Ryan, 103 Wash 2d 165, 171, 691 P2d 197, 203 (1984):

“Stipulated incompetency based on an erroneous understanding of statutory incompetency is too uncertain a basis to find unavailability. To excuse production of a witness whose testimony is offered against a criminal defendant through hearsay repetition, a more certain showing is required. [Ohio v.] Roberts recognized that the good faith effort incumbent on the State to produce the witness does not require a futile act. ‘But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation.’ Roberts, 448 U.S. at 74, 100 S.Ct. at 2543 [original emphasis]. The unexplained failure of the State to produce the children exemplifies the fears of one commentator that RCW 9A.44.120 [which allows in evidence hearsay declarations of sexually abused children] may serve as a disincentive to call the child witness. Comment, Confronting Child Victims of Sex Abuse: The Unconstitutionality of the Sexual Abuse Hearsay Exception, 7 U. Puget Sound L. Rev. 387, at 398 (1984). Because the State made no apparent effort to produce the children or to excuse their production, the first of the Roberts requirements, production or demonstrated unavailability, is not met.”

We are aware that many three-year-olds are found to be incompetent after close evaluation by judges conducting trials. On the other hand, many children of tender years make remarkably credible witnesses for either the prosecution or the defense in a criminal trial. Because there is so much variance among children, we believe only the trial judge can make a ruling on competency. We hold, therefore, that before any out-of-court declaration of any available¹² living witness may be offered against a defendant in a criminal trial, the witness must be produced and declared incompetent by the court to satisfy either Article I, section 11, of the Oregon Constitution, or the Sixth Amendment to the United States Constitution. This ruling on competency was not undertaken in this case and, therefore, the case must be reversed and remanded to the trial court for such a determination. If the child is found to be competent, her out-of-court declaration of present complaint of sexual misconduct may be admitted in evidence by her own testimony as well as the testimony of her mother who heard and can repeat the child’s words as to the complaint. If the child is found to be incompetent, her out-of-court complaint of sexual misconduct is admissible under OEC 803 (18a) and is relevant corroboration of the confession of the defendant.

The decision of the Court of Appeals is reversed and the case remanded to the trial court for proceedings not inconsistent with this opinion.

1 ORS 163.405 provides:

“(1) A person who engages in deviate sexual intercourse with another person or causes another to engage in deviate sexual intercourse commits the crime of sodomy in the first degree if:

*****

(b) The victim is under 12 years of age; * * *

*****

“(2) Sodomy in the first degree is a Class A felony.”

ORS 163.305(1) provides:

“ ‘Deviate sexual intercourse’ means sexual conduct between persons consisting of contact between the sex organs of one person and the mouth or anus of another.”

2 The daughter had been taught during toilet training to use the word “tee-tee” for vagina or vaginal area.

3 OEC 804(3)(f) is substantively identical to OEC 803(24) with two exceptions: first, it is applicable only “if the declarant is unavailable as a witness,” OEC 804(3); see OEC 804(1); and, second, the statement must be “offered as evidence of a material fact,” OEC 804(3)(f)(A), rather than be “relevant” as is required in OEC 803(24) (a)(A). The commentary to OEC 803(24) applies to OEC 804(3)(f). Legislative Commentary to OEC 804(3) (f).

4 For purposes of analogy, we note that FRE 803(24) and FRE 804(b)(5) are equivalent to OEC 803(24) and OEC 804(3)(f), respectively. The Senate committee which approved this federal legislation stated:

“It is intended that the residual hearsay exception will be used very rarely and only in exceptional circumstances. The committee does not intend to establish a broad license for trial judges to admit hearsay statements that do not fall within one of the other exceptions contained in rules 803 and 804(b). The residual exceptions are not nieant to authorize major judicial revisions of the hearsay rule, including its present exceptions. Such major revisions are best accomplished by legislative action. It is intended that in any case in which evidence is sought to be admitted under these subsections, the trial judge will exercise no less care, reflection and caution than the courts did under the common law in establishing the now-recognized exceptions to the hearsay rule.” Notes of Committee on the Judiciary, Senate Report No. 93-1277, Note to Paragraph (24), reprinted in 28 USCA § 803, Historical Note (1984).

To like effect is United States v. Mathis, 559 F2d 294 (5th Cir 1977), which cites a portion of the above quote. The Court explained the historical legal preference for live testimony with an opportunity for cross-examination over hearsay testimony regarding an out-of-court statement to better assess the reliability of evidence. The court concluded that “tight reins must be held to insure that [FRE 803(24)] does not emasculate our well developed body of law and the notions underlying our evidentiary rules.” Mathis, 559 F2d at 299. A well-respected commentator on evidentiary matters has written that the attitude of Congress on FRE 803(24) “was clearly one of conservatism toward resorting to the exception, and the courts generally have announced respect for that position.” McCormick on Evidence § 324.1 (3rd ed 1984). The same could be said of the attitude of the Legislative Assembly in Oregon.

5 Justice Burnett then launched off into the now widely discarded canard, see State v. Bashaw, 296 Or 50, 672 P2d 48 (1984):

“Someone has very wisely said in substance of the crime in question that it is easy to charge, hard to prove, and still harder to defend against. It is a matter of common knowledge that men who ordinarily compose juries will not think or act dispassionately on a case of this sort. By far too frequently does the mere charge raise the cry of the mob, ‘Crucify him! Crucify him!’ Taking advantage of this, it is easy for one having ill feeling against the accused to work up a case involving a little girl and arouse the indignation natural in the breast of everyone who has a heart above a beast. The influence of a possibly designing mother over such a child is so great tending to a fabricated story that the legal rights of the defendant ought to be strictly guarded. * * *” State v. Whitman, 72 Or 415,421,143 P 1121 (1914).

6 Professor Wigmore in his classic treatise on evidence agrees:

“Where the prosecutrix is a child too young to be a witness, the statements should nevertheless be receivable;4 because, although in general a hearsay declarant must not lack the qualifications of an ordinary witness, yet the peculiar nature of the present exception renders this principle substantially inapplicable to children; furthermore, the orthodox common-law limitations as to children’s testimonial capacity are inherently unsound and impractical and should not be extended by analogy.

“4 [Citing] Brazier’s Case, [1 East, Pleas of the Crown 443 (1779)], so understood by Parke, B., in R. v. Guttridge, 9 Car. & P. 471 (1840); People v. Marrs, 125 Mich. 376, 84 N.W. 284 (1900); Croomes v. States, 40 Tex. Crim. 672, 51 S.W. 924 (1899), s.c., 53 S.W. 882 (1899); Kenney v. State, 79 S.W. 817 (Tex. Crim. 1904); Hannon v. State, 70 Wis. 448, 36 N.W. 1 (1888).” 6 Wigmore, Evidence 246, § 1761 (Chadbourne rev 1976) (parentheticals omitted).

7 Professor Michael H. Graham has proposed exactly such an amendment to the Federal Rules of Evidence. His suggested wording reads as follows:

“Rule 801(d)(1)

Statements Which Are Not Hearsay Prior Statement by Witness

“The following definitions apply under this article:

(d) Statements Which Are Not Hearsay. A statement is not hearsay if—

(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (D) consistent with the declarant’s testimony and is one of initial complaint of sexual abuse against the will of the declarant. ”

Graham, The Cry of Rape: The Prompt Complaint Doctrine and the Federal Rules of Evidence, 19 Willamette L Rev 489, 510 (1983) (proposed language emphasized).

8 ORS 136.425(1) provides:

“A confession or admission of a defendant, whether in the course of judicial proceedings or otherwise, cannot be given in evidence against him when it was made under the influence of fear produced by threats; nor is a confession only sufficient to warrant his conviction without some other proof that the crime has been committed.” (Emphasis added.)

9 That same Baron Parke declared the year earlier in Regina v. Walker, 2 Moody & Robinson 212, 212 (1839):

“The sense of the thing certainly is, that the jury should, in the first instance, know the nature of the complaint made by the prosecutrix, and all that she then said. But, for reasons which I never could understand, the usage has obtained that the prosecutrix’s counsel should only inquire, generally, whether a complaint was made by the prosecutrix of the prisoner’s conduct towards her, leaving the counsel of the latter to bring before the jury the particulars of that complaint by cross-examination.”

10 Wigmore comments that the use of evidence of a woman’s complaint of rape, either as a simple fact or in its detailed statements, to corroborate her testimony on the stand or to rebut the inference from her supposed failure to complain, has been treated by some courts as non-hearsay, being admitted merely as the corroboration of witnesses. He notes:

“* * * However, some courts have believed that such utterances, including their details of statement, could be received on the footing of genuine hearsay assertions, apparently under the present exception. The practical difference would be that the limitations necessary in using such evidence merely in testimonial corroboration would not apply, and the evidence could be more freely received. It remains, therefore, to ascertain how far such a complaint is receivable as a direct exception to the hearsay rule. If it is so receivable, its proper place would seem to be under the present head [as a hearsay exception].” 6 Wigmore, supra n 6, at 240.

11 See, e.g., Note, The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations, 98 Harv L Rev 806 (1985); McNeil, The Admissibility of Child Victim Hearsay in Kansas: A Defense Perspective, 23 Washburn L J 265 (1984); Casenote, The Final Resting of the “Tender Years” Exception to the Hearsay Rule: People v. Kreiner, 1 Det C L Rev 117 (1984); Skoler, New Hearsay Exceptions for a Child’s Statement of Sexual Abuse, 18 J Mar L Rev 1 (1984); Note, A Tender Years Doctrine for the Juvenile Courts: An Effective Way to Protect the Sexually Abused Child, 61J Urb L 249 (1984); Comment, Confronting Child Victims of Sex Abuse: The Unconstitutionality of the Sexual Abuse Hearsay Exception, 7 U Puget Sound L Rev 387 (1984); Note, The Sexually Abused Infant Hearsay Exception: A Constitutional Analysis, 8 J Juv L 59 (1984); Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum L Rev 1745 (1983); Liberalization in the Admissibilty of Evidence in Child Abuse and Child Molestation Cases, 7 J Juv Law 205 (1983); Pierron, K.S.A. 60-460 (dd): the New Kansas Law Regarding the Admissibility of Child-Victim Hearsay Statements, 52 J Kan Bar Assn 88 (1983); Comment, Sexual Abuse of Children — Washington’s New Hearsay Exception, 58 Wash L Rev 813 (1983); Stafford, The Child as a Witness, 37 Wash L Rev 303 (1962).

12 OEC 804(1) provides the definition of “Unavailability as a witness” as follows:

“Definition of unavailability. ‘Unavailability as a witness’ includes situations in which the declarant:

(a) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of a statement;

(b) Persists in refusing to testify concerning the subject matter of a statement despite an order of the court to do so;

(c) Testifies to a lack of memory of the subject matter of a statement;

(d) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(e) Is absent from the hearing and the proponent of the declarant’s statement has been unable to procure the declarant’s attendance (or in the case of an exception under paragraph (b), (c) or (d) of subsection (3) of this section, the declarant’s attendance or testimony) by process or other reasonable means.”