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July 19, 2005

Tom Lininger: New law allows hearsay evidence in domestic violence cases

New Oregon law allows hearsay in abuse cases
 “The Sixth Amendment is a shield — not a sword”
Tom Lininger

A brutal Lane County murder was on University of Oregon law professor Tom Lininger‘s mind when he crafted a bill to allow hearsay evidence in cases of domestic violence, elder abuse and child abuse.

“Batterers often threaten to retaliate against victims who cooperate with law enforcement,” Lininger said,  “Just last year, Springfield resident Paula Benitez was shot by her ex-husband the day she testified at his sentencing hearing for violating a restraining order.  This new law can’t help Ms. Benitez — but it will allow prosecutors to use out-of-court statements by victims like her in the future.”

Senate Bill 287, written by Lininger and introduced by Eugene senator Vicki Walker, was signed into law on July 12 by Oregon Governor Ted Kulongoski and will become effective immediately. The new law will allow a party to introduce a hearsay statement against an opponent who has wrongfully caused the unavailability of the witness.

Lininger drafted the bill in response to a U.S. Supreme Court ruling in March of last year.  

The decision in Crawford v. Washington intended to clarify the Sixth Amendment right to confront one’s accuser by limiting out-of-court statements by absent witnesses. But battered women, seniors and children are often frightened to testify in open court against their abusers and this fear is justified.

Lininger said Oregon had to fix state law so that it protected a defendant’s constitutional rights while still allowing victims to stay out of physical reach of their assailants.

“If a witness isn’t available because she has been threatened by the defendant, then the defendant shouldn’t be protected by hearsay rules. The Sixth Amendment is a shield, not a sword,” Lininger said.

In a prior legislative session, Lininger authored a successful bill that created new criminal penalties for drug-induced rape.

Lininger teaches evidence and ethics at the University of Oregon School of Law.  He chairs the Oregon Criminal Justice Commission, which plans the state’s criminal justice policy and drafts the state’s sentencing guidelines.  His article, “Prosecuting Batterers After Crawford,” was just published in the Virginia Law Review.

Before joining the UO faculty, Lininger worked for seven years as a federal prosecutor.  He obtained the first conviction in the nation under a provision of the Violence Against Women Act that gave federal courts jurisdiction over certain gun crimes by convicted batterers.

— Eliza Schmidkunz July 19, 2005

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