State v. Hartley

The hearsay exception under OEC 801(4)(a)(C) does not apply to identifications that “merely follow a declarant’s perception of the person”, but “must result from” the perception. Legislative Commentary to OEC 801, reprinted in Laird C. Kirkpatrick, Oregon Evidence § 801.02[2], 712, 713 (6th ed 2013).

Defendant appealed a conviction of second-degree assault with a firearm (ORS 163.175) and unlawful use of a weapon (ORS 166.220). Defendant assigned error to the trial court’s ruling to permit certain testimony from police officers. On appeal, Defendant argued the police officers’ testimony was inadmissible hearsay because the testimony repeated an out of court statement that accused Defendant of being guilty. The hearsay exception under OEC 801(4)(a)(C) does not apply to identifications that “merely follow a declarant’s perception of the person”, but “must result from” the perception. Legislative Commentary to OEC 801, reprinted in Laird C. Kirkpatrick, Oregon Evidence § 801.02[2], 712, 713 (6th ed 2013). The Court of Appeals found the witness statement made to the officers was not for the purpose of identifying Defendant, but rather “as substantive evidence that Defendant shot the victim.” The Court held that the trial court erred when it permitted the officers’ testimony because it did not fall into the scope of the hearsay exception regarding statements of identification. Reversed and Remanded.