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National Crime Victim Law Institute

State v. Valle, — P.3d —, No. A145111, 2013 WL 1233269 (Or. Ct. App. Mar. 27, 2013) (en banc).

April 24, 2013

Defendant appealed from his conviction on charges of first degree sodomy and second degree sexual abuse, arguing that the trial court erred in excluding evidence that the child-victim—defendant’s step-daughter— had applied for a U visa.  Defendant argued that the child-victim’s application for a visa allowing her to stay in the United States because of her status as a victim of sexual abuse was relevant impeachment evidence as the visa application could allow the jury to infer that the child-victim had a personal interest in testifying in a manner consistent with her application for an opportunity to remain in the country.  The court agreed, holding that the trial court’s exclusion of the evidence was reversible error, and remanded for a new trial.  The court began by noting that a party is entitled to impeach a witness with evidence regarding the witness’s bias or interest, and that this is “particularly true for a defendant in a criminal case[,]” as defendant’s Confrontation Clause right “includes the right to question a witness about circumstances from which a jury could reasonably infer that the witness has a motive to testify in a certain manner.”  The court further noted that all defendant needed to show for admission of the impeachment evidence was that it was relevant on the ground that it “had a tendency, however slight, to demonstrate that [the child-victim] had a personal interest in testifying against him.”  The court found that defendant successfully laid this foundation for admission of the impeachment evidence because:  “Simply put, [the child-victim] had applied for an opportunity to stay in the country on the ground that she had been abused; based on that fact, a jury could reasonably infer that she had a personal interest in testifying in a manner consistent with her application for that opportunity.”  The court then held that because defendant’s proffered impeachment evidence was relevant, and because it was necessary to make an initial showing of the child-victim’s self-interest, the trial court erred in excluding it.  The court rejected the dissent’s view that the trial court correctly excluded the evidence of the child-victim’s application for a U visa because defendant failed to present sufficient evidence of a “conditional fact”—the victim’s belief or understanding that her eligibility depended on her testimony.  The court explained that the evidence that the child-victim had applied for a U visa on the ground that she was a victim of abuse was self-contained, requiring no additional information to make it relevant.