State v. Gutierrez

Under the Sixth Amendment, hearsay statements that are testimonial in nature are prohibited unless the person who made the statement is unavailable and the defendant previously had an opportunity to cross-examine the person. Crawford v. Washington, 541 US 36 (2004). The curative admissibility doctrine allows one party to counter inadmissible testimony elicited by the other party by introducing its own otherwise inadmissible testimony. State v. Apodaca, 291 Or App 268, 274-75, 420 P3d 670 (2018).

Defendant appealed a conviction for one count of harassment. Defendant assigned error to the trial court allowing a witness to testify about statements made by the victim, who did not appear in court. On appeal, Defendant argued that allowing the testimony violated his Sixth Amendment confrontation right. In response, the State argued that the curative admissibility doctrine allowed the admission of the statements. Hearsay statements are inadmissible during a criminal trial unless the person who made the statement appears at trial or the person is not available and the defendant previously had an opportunity to cross-examine the person. Crawford v. Washington, 541 US 36 (2004). However, the curative admissibility doctrine allows one party to introduce otherwise inadmissible testimony after inadmissible testimony is elicited by the other party. State v. Apodaca, 291 Or App 268, 274–75, 420 P3d 670 (2018). The Court held that the trial court did not base its ruling about the out-of-court statements of the victim on the curative admissibility doctrine; instead the trial court ruled based on the general “opened the door” doctrine. The Court held that the out-of-court statements should not have been admitted and that the error caused harm. The Court declined to address the relationship between the Sixth Amendment and the curative admissibility doctrine. Reversed and remanded.