|
July 19th 2005 • Printer version
 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 oneÃs 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
|
