State v. Miller

Under OEC 803(5), "the making of a record for the purposes of OEC 803(5) requires the witness’s knowledge that the statement is being memorialized in order to ensure that the statement carries greater trustworthiness than any other hearsay statement.”

Defendant appealed a conviction for attempted murder, assault in the first degree, unlawful use of a weapon, failure to perform the duties of a driver when property is damaged, and unlawful possession of a firearm. On appeal, defendant assigned error to the trial court’s admission of video recordings of two witness interviews conducted by police while in custody. The trial court overruled Defendant’s objection and admitted the evidence under the hearsay exception for prior recollection recorded. OEC 803(5). Defendant argued that the witnesses did not themselves create the record as required by OEC 803(5); and further, that there is was no evidence to suggest that the witnesses even knew that their interviews with law enforcement were being video recorded. Defendant reasoned that a declarant who surreptitiously has their statements captured on tape, cannot be said to have made or contemplated the recording as the exception requires. The State in turn argued that Defendant’s argument surmounted to an arbitrary inquiry of applicability of OEC 803(5) based on who pressed the record button. The State reasoned that evidence falling under OEC 803(5) had no guarantee of trustworthiness that would be affected by the identity of the individual pressing the record button and further argued that the records. Admission is proper under OEC 803(5) when the trial court record shows that: “the memorandum or record was made or adopted by the witness.” OEC 803(5). The issue of whether a witness can have “made” a record pursuant to OEC 803(5) when there is insufficient evidence that the witness knew that their statements were being recorded is one of first impression. The Court of Appeals rejected the State’s interpretation of the defendant’s argument and found that a thorough analysis of the statute’s legislative history and legislative intent supported Defendant’s argument that the records were not made by the witness’s pursuant to OEC 803(5) and therefore, inadmissible. The Court established that the making of a record for the purposes of OEC 803(5) requires the witness’s knowledge that the statement is being memorialized in order to ensure that the statement carries greater trustworthiness than any other hearsay statement; because there was no evidence to support the finding that the witnesses were aware that their statements were being recorded the Court found that the trial court erred in admitting the evidence under the prior recollection hearsay exception. Reversed and Remanded.