S058406, Opinion — State v. Cazares-Mendez/Reyes-Sanchez

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Argued and submitted January 13, decisions of Court of Appeals affirmed;
judgments of circuit court in State v. Cazares-Mendez, case no. C052532CR,
and in State v. Reyes-Sanchez, case no. C052531CR, reversed, and matters
remanded to circuit court for further proceedings July 8, 2011

STATE OF OREGON,
Petitioner on Review,
v.
JOSE GUADALUPE CAZARES-MENDEZ,
aka Leonardo Cruz-Casarez,
Respondent on Review.
(CC C052532CR; CA A136094; SC S058406 (Control))
STATE OF OREGON,
Petitioner on Review,
v.
JORGE REYES-SANCHEZ,
Respondent on Review.
(CC C052531CR; CA A136062; SC S058554)
(Consolidated for argument and opinion)
256 P3d 104

Defendants were charged with aggravated murder and other crimes. At trial,
defendants attempted to introduce hearsay testimony from four different wit-
nesses that another person had admitted to committing the murder. The trial court
refused to allow the evidence, and both defendants were convicted. The Court of
Appeals reversed, concluding that the trial court had erred in excluding hearsay
testimony. Held: (1) courts evaluating "trustworthiness" under the hearsay excep-
tions of OEC 804(3)(c) and OEC 803(28)(a) should not consider the credibility of the
witnesses testifying to the hearsay statements, but rather should focus on whether
the declarant's statements are sufficiently corroborated; (2) the residual hearsay
exception of OEC 803(28)(a) does not apply to hearsay statements that fall within
a specific category of hearsay exception; (3) the testimony offered by the defendants
in this case met all of the requirements of the "statement against penal interest"
exception, OEC 804(3)(c), except the requirement that the declarant be unavaila-
ble; and (4) the Due Process Clause of the Fourteenth Amendment to the United
States Constitution required the trial court to disregard the "unavailability"
requirement of OEC 804(3)(c), so the hearsay testimony should have been
admitted.

The decisions of the Court of Appeals are affirmed. The judgments of the circuit
court in State v. Cazares-Mendez, case no. C052532CR, and in State v. Reyes-
Sanchez, case no. C052531CR, are reversed, and the matters are remanded to the
circuit court for further proceedings.

En Banc
On review from the Court of Appeals .*

\* Appeals from Washington County Circuit Court, Mark Gardner, Judge. 233
Or App 310, 227 P3d 172 (2010); 234 Or App 102, 227 P3d 1217 (2010).

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Timothy A. Sylwester, Assistant Attorney General,
Salem, argued the cause and filed the briefs for petitioner on
review. With him on the briefs were John R. Kroger, Attorney
General, and Mary H. Williams, Solicitor General.

Daniel J. Casey, Portland, argued the cause and filed the
briefs for respondent on review Jose Guadalupe Cazares-
Mendez.

Robin A. Jones, Senior Deputy Public Defender, Salem,
argued the cause and filed the brief for respondent on review
Jorge Reyes-Sanchez. With her on the brief was Peter
Gartlan, Chief Defender, Office of Public Defense Services.

BALMER, J.

The decisions of the Court of Appeals are affirmed. The
judgments of the circuit court in State v. Cazares-Mendez,
case no. C052532CR, and in State v. Reyes-Sanchez, case no.
C052531CR, are reversed, and the matters are remanded to
the circuit court for further proceedings.

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# BALMER, J.

Defendants José Guadalupe Cazares-Mendez and
Jorge Reyes-Sanchez were convicted of aggravated murder in
the death of Jessie Valero. During their separate trials, the
court refused to allow them to present hearsay evidence from
four different witnesses that another person, Tiffany
Scherer, had stated that she had committed the murder. The
Court of Appeals held that the trial court had erred in exclud-
ing the hearsay testimony. State v. Cazares-Mendez, 233 Or
App 310, 227 P3d 172 (2010); State v. Reyes-Sanchez, 234 Or
App 102, 227 P3d 1217 (2010). This court allowed the state's
petitions for review. On review, we agree with the Court of
Appeals and remand both cases for a new trial.

# FACTUAL BACKGROUND

As noted, defendants were tried separately before
different juries, although the same trial judge presided over
both cases. For that reason, we describe the evidence that
was introduced in both trials; we generally omit details that
are not common to both cases. Some of those details were
favorable to the defense, while other details were favorable to
the state.1 Most of those details are minor, however, and they
do not affect our final disposition of the case. In presenting an
overview of the crime, we will set out the evidence in the light
most favorable to the state, because it was the prevailing
party before the jury in each case. See State v. Thoma, 313 Or
268, 270, 834 P2d 1020 (1992) (stating standard).

The victim, Jessie Valero, was found dead in her
Hillsboro apartment on the morning of March 17, 2005. She
had died from approximately 29 stab wounds. The apartment
contained a red bicycle that Valero did not own, and the con-
tents of her jewelry box had been emptied on the bed.

For example, during the Reyes-Sanchez trial, defendant elicited that one wit-
ness to the hearsay statements, Jessica Callahan, had multiple prior convictions
for the manufacture, distribution, and possession of methamphetamine. Those
prior convictions were not brought out during the Cazares-Mendez trial. On the
other hand, Callahan was questioned during the Reyes-Sanchez trial about
Scherer's state when she described stabbing an unidentified woman. Callahan tes-
tified that Scherer was "excited" and that she had a "scary," "psycho" look. No sim-
ilar testimony was presented in the Cazares-Mendez trial.

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A key element in the cases against both defendants
was the testimony of a third defendant, José Lugardo-
Madero, who was himself facing murder charges for Valero's
death. He testified that on March 15, 2005, he and both
defendants had unsuccessfully attempted to get metham-
phetamine. Later, he went with both defendants to Valero's
apartment complex. Defendants intended to break into
Valero's apartment and steal her jewelry. Defendant Reyes-
Sanchez had with him the red bicycle later found in the vic-
tim's apartment. Lugardo-Madero refused to go into the
apartment and waited outside. After a while, Lugardo-
Madero approached the apartment, heard noises, and fled.

Roughly two hours later, defendant Cazares-Mendez
arrived at the apartment where Lugardo-Madero was stay-
ing. He went in the bathroom, washed his clothes, and
bathed. Approximately two hours after that, defendant
Reyes-Sanchez arrived. Both defendants then left.

Lugardo-Madero testified that he saw defendant
Cazares-Mendez roughly a week later. Cazares-Mendez
admitted that he and Reyes-Sanchez had murdered Valero.
He threatened to kill Lugardo-Madero if he told anyone.

Both Reyes-Sanchez and Cazares-Mendez later
were indicted for two counts of aggravated murder, three
counts of murder, one count of first-degree robbery, and one
count of first-degree burglary. Reyes-Sanchez was tried first,
beginning in January 2007. Cazares-Mendez was tried
shortly afterward, beginning in late February 2007.

During their respective trials, both defendants
attempted to offer evidence that another person, Tiffany
Scherer, had confessed to the crime. Specifically, they offered
testimony that Scherer had admitted committing the murder
to four different witnesses on four separate occasions.
Because the testimony was hearsay, both defendants
attempted to introduce the evidence under exceptions to the
hearsay rule. Defendant Cazares-Mendez sought to intro-
duce the evidence under the "statement against penal inter-
est" exception, OEC 804(3)(c). Defendant Reyes-Sanchez
sought to introduce the evidence under the residual hearsay
exception of OEC 803(28)(a). (We quote both of those hearsay
exceptions and discuss them in detail below.) What follows is

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a summary of the testimony of the four witnesses as pre-
sented through defendants' offers of proof.

Connie Torres had known Scherer for five years and
considered her a friend; she also had known Scherer's mother
for 10-15 years. Torres also had known Valero. Approxi-
mately one week after Valero's death had been reported in
the news, Torres found Scherer sitting under a friend's truck
(the truck had a very high clearance), listening to music and
rocking back and forth, "acting like a little kid." Torres
coaxed Scherer out, at which point Scherer broke down and
confessed that she had stabbed a woman, although Scherer
did not identify the person she had stabbed. Scherer stated
that she and the woman had been arguing and then started
fighting, at which point Scherer stabbed her. Scherer said
that, once she started stabbing her, "she couldn't stop." After-
ward, Scherer stated, she had attempted to make it look like
a burglary.

Torres did not tell the police or defense investigators
about Scherer's statements until January 2007. Torres
admitted being an acquaintance of defendant Reyes-
Sanchez, but there is no evidence in the record that she knew
defendant Cazares-Mendez. Torres previously has been con-
victed of forgery. Both she and Scherer used methampheta-
mine, but Torres denied that they were using it when Scherer
told her about the killing.

Naomi Rivera was a friend of both Scherer and
defendant Cazares-Mendez. She was also an "acquaintance"
of defendant Reyes-Sanchez. Rivera and Scherer sometimes
used methamphetamine together. At some point after Rivera
learned that Valero had been killed, Scherer told Rivera that
she had stabbed a "bitch" who had been "coming at" Scherer.2
Scherer did not name the woman who had been stabbed.
Both Scherer and Rivera were using methamphetamine at
the time that Scherer made the statements. There was a sig-
nificant delay before Rivera reported the conversation to
anyone.

2 In the Cazares-Mendez trial only, Rivera asserted that Scherer had stated
that "she stabbed her over and over again."

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Jessica Callahan was using methamphetamine
when she met Scherer sometime around March 2005.
Callahan did not know either Valero or defendant Reyes-
Sanchez; the record is silent as to whether she had any con-
nection with defendant Cazares-Mendez. When they met in
March, Callahan testified, Scherer stated that she was hid-
ing from the police because she had stabbed a lady after the
lady had "jumped" her. Scherer made stabbing motions when
she described this. Scherer gave no further details about who
was stabbed, when, or where. Callahan did not connect the
incident with Valero's murder until others had said that
Scherer had stabbed the victim. Callahan also delayed a sub-
stantial time before disclosing the statements to investiga-
tors, first doing so around November 2006.

Lisa Ann Smith had known Scherer for all of
Scherer's life; she also had known Scherer's mother for years.
Smith described Scherer as being like family to her, and said
that Scherer called Smith her "Aunt Lisa." Smith did not
know defendant Reyes-Sanchez; the record is silent as to
whether she knew defendant Cazares-Mendez.

Smith did not know Valero, but she learned of her
death in the newspaper. A couple of months afterward, on
hearing rumors that Scherer had been involved in causing
the victim's death, Smith asked Scherer if she had killed
Valero. Scherer stated that she had been at a bar with Valero
and that she and Valero went back to Valero's place. Scherer
indicated that she had stabbed Valero about 22 times.
Scherer also told Smith that she had later sent someone back
to rob the place.3

One particular point of Smith's testimony is worth
emphasizing. She testified that Scherer had described Valero

3 Although Smith testified in the second trial less than two months after she
testified in the first, her memory became dramatically worse for the later trial.
During the Reyes-Sanchez trial, Smith directly referred only once to problems with
remembering things. During the Cazares-Mendez trial, however, Smith repeatedly
stated that she was having difficulty remembering what had happened ("I'm hav-
ing a hard time remembering everything right now"; "My mind is not real clear
right now"; "I'm having a really hard time right now [remembering]"). She attrib-
uted this variously to "a bunch of traumatic things [that] happen[ed] with one of my
kids" and "some counseling that's bringing up a lot of stuff in my life." Defense
counsel had to refresh Smith's recollection with an investigator's report that
related to her prior statements.

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as having a seizure during the stabbing. Defense counsel
offered evidence that Valero had epilepsy.

In both cases, the testimony of all four witnesses-
Torres, Rivera, Callahan, and Smith-was not necessarily
clear as to exactly when the witnesses gave the information
to investigators or the police (except as already noted). Nev-
ertheless, neither defendant appears to dispute that none of
the four witnesses contacted police or investigators promptly,
and a substantial amount of time elapsed before they
revealed Scherer's statements.

Scherer testified in both trials in connection with
defendants' offers of proof. She admitted that she was using
methamphetamine during the period when the crime
occurred. She also admitted knowing Torres, Rivera, and
Smith. She denied knowing Callahan or Valero. She denied
stabbing Valero, and she denied telling any of the witnesses
that she had stabbed Valero.

During the Cazares-Mendez trial only, defendant
offered additional testimony from two other witnesses. First,
Benilde Torres testified that, within two days of hearing
about Valero's death, she saw Scherer with an inch-long
scratch on the right side of her neck. Scherer claimed that it
was a hickey,4 but it did not look like a hickey to Torres. Sec-
ond, Detective Patrick Brady testified that Hillsboro had no
other murders in March 2005 that involved a female victim
stabbed multiple times.

The trial court refused to allow either defendant to
put on the hearsay testimony that Scherer had admitted kill-
ing Valero. We will consider the trial court rulings out of
chronological order, because the court's ruling in Cazares-
Mendez provides useful context to understand its earlier rul-
ing in Reyes-Sanchez.

As mentioned, defendant Cazares-Mendez con-
tended that the witnesses' testimony as to the statements by
Scherer met almost all of the requirements of the "statement

4 A "hickey" is "a temporary red mark on the skin (as one produced by biting
and sucking)." Merriam-Webster's Collegiate Dictionary 546 (10th ed 1993).

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against penal interest" exception, OEC 804(3)(c). That rule
provides, in part:

"The following are not excluded by ORS 40.455 [OEC
802, generally excluding hearsay] if the declarant is una-
vailable as a witness:

"(c) A statement which * * * at the time of its making
\* \* \* so far tended to subject the declarant to civil or crimi-
nal liability, * * * that a reasonable person in the declar-
ant's position would not have made the statement unless
the person believed it to be true. A statement tending to
expose the declarant to criminal liability and offered to
exculpate the accused is not admissible unless corroborat-
ing circumstances clearly indicate the trustworthiness of
the statement."

Cazares-Mendez asserted that there were corroborating cir-
cumstances that clearly indicated the trustworthiness of the
witnesses' testimony: Scherer had confessed to four separate
witnesses that she had murdered a woman by stabbing her,
to one witness that Valero was the victim, and to two wit-
nesses that she had sent someone back to steal from the
crime scene. Defendant admitted that one requirement of
OEC 804(3)(c) was not met, because the declarant, Scherer,
was available to testify as a witness (and had done so). Defen-
dant asserted, however, that the Due Process Clause of the
Fourteenth Amendment to the United States Constitution
superseded the unavailability requirement, because it was
an "artificial" restriction that was not rational under the cir-
cumstances. See Chambers v. Mississippi, 410 US 284, 93
S Ct 1038, 35 L Ed 2d 297 (1973) (violation of due process to
use state evidentiary rule to exclude hearsay testimony that
another person had admitted committing the crime, when
there was considerable evidence of reliability of statements).
The state countered that, in any event, the proffered evidence
lacked the required trustworthiness.

The trial court agreed with the state, concluding
that the "corroborating circumstances" did not clearly indi-
cate the trustworthiness of the statements attributed to
Scherer. The court stated:

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"Well, first taking the Tiffany Scherer evidence. They don't
meet the evidence code requirement for statements against
penal interest. *** [W]here she basically says that she
killed someone or stabbed someone, that would be a crime.
But it's not clear that it's Jessie Valero that she's talking
about. And, you know, Tiffany Scherer is not unavailable.
And there's a reason for the rules of unavailability in terms
of a threshold for admissibility.

"Secondly, the only two facts, independent facts, that
have been brought out in this trial that would even poten-
tially be corroborative of, you know, the fact that this, in
fact, occurred were the statements of Anita Valero [sic] that
her mother basically suffered from epilepsy, and in one of
the statements that Tiffany Scherer is alleged to have
made, there is reference to someone going into a seizure.

"* * * Benilde Torres indicated that some period of time
around the time of the murder, might have been three or
four, maybe even five days later, she saw something that
appeared to be a scratch on Tiffany Scherer's neck, and
Tiffany Scherer said that it wasn't a scratch. It was a
hickey. And she didn't think that it was. That's the sum
total of corroboration that's outside of the other statements.

"You know, except for, I guess, the negative that nobody
else-no other woman was stabbed, which really doesn't
indicate necessarily the truth of the statement that some-
body was stabbed. And for those reasons the offer of proof is
not allowed on that point."

In his trial, defendant Reyes-Sanchez asserted that
the testimony should be admitted under the residual hearsay
exception, OEC 803(28). That rule provides, in part:

"The following are not excluded by ORS 40.455 [OEC
802], even though the declarant is available as a witness:

***** *

"(28)(a) A statement not specifically covered by any of
the foregoing exceptions but having equivalent circumstan-
tial guarantees of trustworthiness, if the court determines
that:

"(A) The statement is relevant;

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"(B) The statement is more probative on the point for
which it is offered than any other evidence that the propo-
nent can procure through reasonable efforts; and

"(C) The general purposes of the Oregon Evidence
Code and the interests of justice will best be served by
admission of the statement into evidence."

Defendant Reyes-Sanchez argued that the testimony about
Scherer's statements was relevant and more probative than
anything else he could procure through reasonable efforts,
and that admitting the testimony would serve the general
purposes of the Oregon Evidence Code and the interests of
justice. Furthermore, defendant contended that the testi-
mony of the witnesses contained the required circumstantial
guarantees of trustworthiness. As in Cazares-Mendez, and
largely for the same reasons, the state asserted that the tes-
timony lacked the required circumstantial guarantees of
trustworthiness.

Again, the trial court agreed with the state. The
court began by noting that the testimony did not meet the
requirements of the statement against penal interest excep-
tion, OEC 804(3)(c), because Scherer was available. The court
then elaborated on its conclusion that the "statement against
penal interest" exception did not apply, building from there
to the conclusion that the residual hearsay exception did not
apply either:

"[E]ven if Tiffany Scherer were unavailable, the first two
witnesses would not have qualified as a statement against
penal interest because we're not even clear, in those state-
ments, whether she's talking about Jessie Valero. Jessie
Valero was never identified. You know, they-the state-
ments were made to-in both cases, when not only was the
declarant under the influence, but so was the hearer of the
statement, the witness who would be testifying as to the
declarant.

"And, under those circumstances, you know, it-it
wouldn't even meet the-the indicia of reliability and trust-
worthiness or even relevance in the sense that we would be
knowing that we were talking about the same situation
because it is possible that Tiffany Scherer stabbed some-
body else, some other location, some other time and she
wasn't even referring to Jessie Valero.

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"So, you know, those two statements clearly, you know,
under even the exception against penal interest standard
and certainly the residual exception standard do not meet
the test. It's a little bit muddier in terms of the statements
to Lisa Ann Smith and Connie Jo Torres * * *.

"But, you know, these statements do not have the indi-
cia of reliability such that they would qualify under [OEC
803(28)]. They-even if the statements were made, there's
no trustworthiness that they're not the product of Tiffany
Scherer-even if they were made, that they're not the
product of Tiffany Scherer's drug-induced hallucinations.
Because in all the situations here, she was acting in the
manner that-that basically was indicative of somebody
[who] was under the influence and in at least two or maybe
three of the occasions it's clear that that was what her state
was.

"And there's nothing else, other than the statements,
that tied her to the scene or to the crime. There's no-just as
there's nothing that ties your clients in terms of the foren-
sics, there's nothing that ties her to that."

At the conclusion of each trial, each defendant was
convicted on all counts. The jury declined to impose the death
penalty, and defendants each were sentenced to life in prison
without the possibility of parole.

Both defendants appealed to the Court of Appeals,
which reversed in both cases. The court ruled first in
Cazares-Mendez. As in the trial court, defendant Cazares-
Mendez asserted that the testimony met all the requirements
of the "statement against penal interest" exception to the
hearsay rule, OEC 804(3)(c), except the unavailability
requirement. Defendant contended, however, that it would
violate due process under the United States Constitution to
prohibit him from presenting trustworthy evidence merely
because the declarant, Scherer, was available. 233 Or App at
320.

The Court of Appeals agreed. The court first held
that the corroboration requirement of OEC 804(3)(c) was "a
screening device designed to frustrate fabrication either by
declarants seeking to falsely exculpate a criminal defendant
or by witnesses who, by way of hearsay, falsely ascribe incul-
patory statements to purported declarants." 233 Or App at

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325\. The Court of Appeals concluded that corroborating cir-
cumstances did clearly indicate the trustworthiness of the
statements attributed to Scherer, for five reasons. First,
Scherer had confessed to stabbing a female victim to death on
four separate occasions to four different witnesses. Id. at 326.
Second, neither Scherer nor the witnesses had any motiva-
tion to lie; Scherer had no reason to falsely claim to have
killed Valero, and three of the four witnesses had no reason
to falsely implicate Scherer in the murder. Id. at 326-28.
Third, Scherer's statements to the witnesses were essentially
consistent, and in some places included details that were
peculiar to this murder. Id. at 328-29. In particular, the court
noted that Valero had been stabbed 29 times: Smith testified
that Scherer had stated that she had stabbed the victim 22
times, while both Torres and Rivera (Rivera only in the
Cazares-Mendez case) described Scherer as stating that she
had stabbed a woman repeatedly. Id. at 328. Furthermore,
Valero had epilepsy, and Scherer had told Smith that Valero
had had a seizure. Id. Finally, the crime scene showed evi-
dence of a burglary, and both Torres and Smith reported that
Scherer had stated that she had attempted to cover up the
murder by making it look like a burglary or robbery. Id.

The Court of Appeals rejected the state's arguments
that other evidence undermined the trustworthiness of the
hearsay evidence. Among other reasons, the court was unper-
suaded by the fact that the witnesses and the declarant,
Scherer, were all methamphetamine users who, at the time
of several of the statements by Scherer, were under the influ-
ence when the statements were made. Id. at 330.

Nevertheless, although the court concluded that the
testimony met the trustworthiness requirement of OEC
804(3)(c), the court recognized that the rule did not apply,
because the declarant, Scherer, was available to testify. That
did not end the matter, however. In Chambers, the United
States Supreme Court held that a state court had violated a
criminal defendant's due process rights when (among other
things) it refused to allow three witnesses to testify that
another person had admitted committing the crime to them.
See 233 Or App at 331-33 (discussing Chambers). The
Supreme Court had concluded that the statements had
"'considerable assurance of their reliability,'" because the

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declarant had made them to close acquaintances near the
time of the crime, because the confessions were corroborated
by other evidence, and because the multiple confessions effec-
tively corroborated each other. 233 Or App at 332-33 (quoting
Chambers, 410 US at 300). The Court of Appeals concluded
that the testimony in Cazares-Mendez met the requirements
of Chambers, and so the trial court had erred in excluding it.
233 Or App at 336. Furthermore, the Court of Appeals deter-
mined that the error was not harmless. Accordingly, it
reversed and remanded for a new trial.

In Reyes-Sanchez, the Court of Appeals wrote a
briefer opinion, relying significantly on its opinion in
Cazares-Mendez. The court noted that defendant Reyes-
Sanchez had not preserved a due process argument or cited
Chambers in the trial court. 234 Or App at 105. Nevertheless,
the court concluded that the convictions should be reversed
because there was error apparent on the face of the record
under ORAP 5.45(1) (although an appellate court ordinarily
will not consider unpreserved errors, "the appellate court
may consider an error of law apparent on the face of the rec-
ord"). Not only were the issues "factually and legally indistin-
guishable" from Cazares-Mendez, but granting a new trial to
Reyes-Sanchez was the only way to prevent the "fundamen-
tal unfairness" of having him remain convicted of murdering
Valero when his codefendant obtained a new trial that might
lead to an acquittal. 234 Or App at 105.

The state sought review in both cases, and we
allowed both petitions.

# OVERVIEW OF HEARSAY RULE

Before we turn to the particular issues in this case, it
may be useful to provide some background regarding the
admissibility of hearsay at trial. Hearsay has long been
defined as an out-of-court statement offered to prove the
truth of the matter asserted. See 2 McCormick on Evidence
§ 244 (Kenneth S. Broun ed., 6th ed 2006) (reviewing history
of rule); id. § 246, at 129 (restating definition of hearsay in
Federal Rule of Evidence 801 as "an out-of-court assertion,
offered to prove the truth of the matter asserted"); John
Henry Wigmore, 5 Evidence in Trials at Common Law § 1364
(James H. Chadbourn rev 1974) (reviewing history of the
hearsay rule, defined as "that rule which prohibits the use of

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a person's assertion, as equivalent to testimony to the fact
asserted, unless the assertor is brought to testify in the court
on the stand"). That common-law definition today is codified
in OEC 801(3): " 'Hearsay' is a statement, other than one
made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted."
In general, hearsay statements are not admissible. See OEC
802 ("Hearsay is not admissible except as provided in ORS
40.450 [OEC 801] to 40.475 [OEC 806] or as otherwise pro-
vided by law.").

The reason for the exclusion is that hearsay state-
ments are generally considered to be untrustworthy.
Chambers, 410 US at 298 ("The hearsay rule, which has long
been recognized and respected by virtually every State, is
based on experience and grounded in the notion that untrust-
worthy evidence should not be presented to the triers of
fact."); Sheedy v. Stall, 255 Or 594, 596, 468 P2d 529 (1970)
("Hearsay evidence is excluded because of its untrustworthi-
ness."). Because hearsay statements, by definition, have been
made out of court, they lack

"conventional indicia of reliability: they are usually not
made under oath or other circumstances that impress the
speaker with the solemnity of his statements; the declar-
ant's word is not subject to cross-examination; and he is not
available in order that his demeanor and credibility may be
assessed by the jury."

Chambers, 410 US at 298; see State v. Kendrick, 239 Or 512,
515, 398 P2d 471 (1965) ("The ground for the exclusion of
hearsay is that the opposing party has no opportunity to con-
front in court the person making the statement and test his
veracity and accuracy by cross examination." (Citation
omitted.)).

The rule against the admission of hearsay state-
ments, however, is not absolute, and there are a number of
recognized exceptions to the rule. Those exceptions generally
involve a statement that is "made under circumstances cal-
culated to give some special trustworthiness to it." Kendrick,
239 Or at 515. OEC 803 and 804 list numerous examples of
such exceptions.

That emphasis on trustworthiness is directly
reflected in the text of the two hearsay exceptions at issue in

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this case. The ruled relied on by defendant Cazares-Mendez,
OEC 804(3)(c), permits the introduction of statements
against penal interest only if "corroborating circumstances
clearly indicate the trustworthiness of the statement." The
rule relied on by defendant Reyes-Sanchez, OEC 803(28)(a),
authorizes the introduction of hearsay statements that do not
fall within the enumerated exceptions only if they have
"equivalent circumstantial guarantees of trustworthiness"
(and meet other requirements).

# TRUSTWORTHINESS AND WITNESS CREDIBILITY

The critical issue on review revolves around what
those rules mean by "trustworthiness." The state asserts that
courts can and should consider the credibility of the wit-
nesses-Torres, Rivera, Callahan, and Smith-in determin-
ing whether the hearsay statements are trustworthy. The
state notes that most of those witnesses have prior felony
convictions, that they admitted to using methamphetamine
during the period at issue (in some cases even being under
the influence at the time of the statements), and that each
witness had waited for "years" before disclosing the state-
ments by Scherer to authorities. Furthermore, Scherer testi-
fied and denied making the statements. The state asserts
that, as a factual matter, the trial court was entitled to con-
clude that the witnesses were not credible and that Scherer,
the declarant, was.

We believe, however, that the state's argument mis-
understands the nature of the trustworthiness at issue in
hearsay cases. The relevant "trustworthiness" is not that of
the witnesses who testify that the statement was made; it
refers to whether the statement by the declarant has suffi-
cient indicia of reliability. In considering "trustworthiness"
for purposes of determining whether a hearsay exception
applies, the credibility of the relating witnesses-the individ-
uals who testify as to what the declarant said-is not the
issue.

That conclusion follows from the text of the rules
themselves. OEC 804(3)(c) refers to the "trustworthiness of
the statement," while OEC 803(28)(a) applies to a "statement
\* \* \* having equivalent circumstantial guarantees of trust-
worthiness." (Emphases added.) The "statement" is the state-
ment by the declarant, not the testimony of the witness. See

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OEC 801(2) (defining "declarant" as "a person who makes a
statement"); OEC 801(3) (defining "hearsay" as a "statement
** * offered in evidence to prove the truth of the matter
asserted").

Furthermore, this court's case law confirms that a
relating witness's credibility is not part of the court's deter-
mination of whether a hearsay statement is trustworthy.
Both before and after the adoption of the Oregon Evidence
Code in 1981, this court explained that the hearsay rule and
its exceptions turn on the trustworthiness of the declarant's
statement, not the credibility of the witness to the statement.
Witness credibility, of course, is always critical. But just as
credibility is for the jury to determine when the issue is what
the witness saw, so too is credibility for the jury to determine
when the issue is what the witness heard. As this court
explained in Sheedy, a pre-OEC case:

"Hearsay evidence is excluded because of its untrust-
worthiness. The declarant's accuracy and veracity cannot
be tested by cross-examination. It is not the untrustworthi-
ness of the testimony of the witness on the stand who is
asked to testify to what the declarant said that causes the
exclusion of hearsay testimony. The credibility of the wit-
ness can be tested by cross-examination. The problem of the
trustworthiness of the witness in the courtroom is the same
whether the witness is testifying to another's conduct or to
another's words. It is the untrustworthiness of the declar-
ant's statement that causes hearsay testimony to be
excluded."

255 Or at 596-97 (citation omitted). See also State v. Mendez,
308 Or 9, 18-19, 774 P2d 1082 (1989) (post-OEC case quoting
Sheedy to the same effect).

The very nature of hearsay demonstrates that the
threshold "trustworthiness" inquiry made by the court before
ruling on admissibility does not depend on the credibility of
the testifying witness. Hearsay does not exclude all testi-
mony as to out-of-court statements, but only those state-
ments offered to prove the truth of the matter asserted. Thus,
as long as the declarant's statement is not offered to prove
the truth of the matter asserted, a witness may testify to any
out-of-court statement without running afoul of the prohibi-
tion against hearsay-even though that witness's credibility
remains an issue. See Sheedy, 255 Or at 597 (so noting).

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Perhaps the best illustration of the concept that trial
courts should not consider the credibility of the witness in
evaluating whether a hearsay statement is trustworthy came
in Wright v. Swann, 261 Or 440, 493 P2d 148 (1972). The
plaintiff, an eight-year-old girl, brought a civil action against
the defendant for having struck her with his car while she
was in a crosswalk. The defendant asserted that the plaintiff
had run into the side of his car. The defendant was allowed to
testify that an unidentified bystander had said, in an excited
utterance, " 'Oh, God * * * it wasn't your fault. She darted out
in front of me and ran into the side of your car.'" Id. at 442.

In upholding the trial court's decision to allow the
testimony, the court recognized that allowing interested par-
ties to offer hearsay statements from unidentified witnesses
"carries with it the risk of perjured testimony of statements
by so-called 'phantom witnesses.'" Id. at 450. The court
quoted Sheedy, however, for the proposition that the untrust-
worthiness of the witness has nothing to do with whether a
statement is hearsay. 261 Or at 451. The court confirmed
that it is for the jury to decide whether the witness to the
hearsay statement was credible:

"[U]nder the established rules of evidence, including the
rules relating to 'spontaneous statements,' the risk of per-
jured testimony by an interested party is not an independ-
ent ground for the exclusion of testimony that would be
admissible if given by an uninterested third party. Instead,
this is a matter which goes to the credibility, rather than
the admissibility, of such testimony. As such, it is for the
jury to consider the source of such testimony, among other
circumstances, in deciding whether to believe the testimony
and the fact that it was given by an interested party does
not provide an independent ground upon which a trial court
may properly exclude such testimony from consideration by
the jury."

Id. at 450-51.

If witness credibility were part of the trustworthi-
ness of the hearsay statement, then one could hardly find
more compelling facts for considering it than existed in
Wright, where the witness was an interested party offering
self-serving hearsay testimony. Nevertheless, this court held
that witness credibility was purely an issue for the jury. As

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the court explained in Sheedy, unlike the declarant's state-
ment, the witness's testimony is made under oath and is sub-
ject to cross-examination.5

In light of our conclusion that, under OEC 804(3)(c)
and OEC 803(28)(a), trial courts are not to evaluate the cred-
ibility of the witness to the hearsay statement, we necessarily
reject the state's primary arguments against the introduction
of the testimony at issue here. Most of the state's contentions
are irrelevant for purposes of determining whether the evi-
dence is admissible (although they would be relevant to the

5 We add one note about legislative history that is relevant only to OEC
804(3)(c). In interpreting a statute, the parties may present legislative history to
the court, and the court will give it the weight that it deems appropriate. See ORS
174.020(1)(b), (3) (so stating); State v. Gaines, 346 Or 160, 165-73, 206 P3d 1042
(2009) (analyzing ORS 174.020). In this case, none of the parties offered any legis-
lative history. Nevertheless, our research discloses one potentially countervailing
piece of legislative history applicable to OEC 804(3)(c). The commentary to that
rule states:

"The common law refused to concede the adequacy of penal interest in
large part because it distrusted evidence of confessions by third persons offered
to exculpate the accused. This reflected the suspicion that either the fact or the
contents of the confession were fabricated, enhanced in either case by the
required unavailability of the declarant. * * * The trial court should construe
the corroboration requirement in a manner that effectuates its purpose to cir-
cumvent fabrication."

OEC 804 Commentary (1981) (emphasis added). Based on that statement in the
commentary, Professor Kirkpatrick has written: "In light of these expressions of
legislative intent, it would seem appropriate for courts to consider the trustworthi-
ness of the witness as well as of the declarant in determining whether the corrob-
oration requirement is satisfied." Laird C. Kirkpatrick, Oregon Evidence
§ 804.04[5], at 848 (5th ed 2007). See State v. Lytsell, 187 Or App 169, 178, 67 P3d
955 (2003) (reaching the same conclusion).

We believe that that conclusion reads too much into the legislative history. As
we have noted, both the text of the OEC and the context of this court's prior case
law demonstrate that the credibility of a relating witness is not relevant to whether
a hearsay statement is trustworthy. The commentary is not to the contrary. It does
not direct courts to consider the credibility of the witness, but to interpret the cor-
roboration requirement to prevent fabrication. Courts adequately address the risk
of fabrication when they require that there be "corroborating circumstances [that]
clearly indicate the trustworthiness of the statement." Many of the same circum-
stances that corroborate the trustworthiness of the hearsay statement will also
serve to minimize any risk that "the fact or the contents of the confession were fab-
ricated." These cases offer a good example: Defendants demonstrated (among other
things) that the declarant confessed to four different witnesses on four different
occasions, in several cases giving distinctive details about the crime. One confes-
sion might be fabricated, but four is less likely, particularly when the declarant's
statements include details about the crime. If the legislature had intended for trial
courts to make credibility determinations counter to the ordinary rules of evidence
that govern hearsay, we believe it would have done so more specifically.

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jury's credibility determination). For admissibility purposes,
a witness's delay in reporting the statements to the police is
irrelevant, as is a witness's use of methamphetamine, or
Smith's repeated assertions during the Cazares-Mendez trial
that she was having memory problems. And the state's
largely speculative assertions that the witnesses were biased
(because they were part of "a larger, inter-connected, local
group of methamphetamine abusers and dealers with con-
nections to defendants") are also irrelevant. Even the fact
that Scherer took the stand and denied making the state-
ments is irrelevant to the trial court's determination of trust-
worthiness for purposes of admissibility. The credibility of
Scherer's testimony at trial, and that of the other witnesses,
was a matter for the jury. To the extent that the trial court
may have relied on any or all of those considerations, it erred.

Having determined what may and may not be con-
sidered in evaluating "trustworthiness" under OEC 804(3)(c)
or OEC 803(28)(a), we return to the facts of this case. We
review preliminary findings of fact by the trial court for
whether any evidence in the record supports them, but we
review the "ultimate legal conclusion[ ] as to whether the
hearsay statement is admissible under an exception to the
hearsay rule" for errors of law. State v. Cook, 340 Or 530, 537,
135 P3d 260 (2006).

In analyzing the issues, we ordinarily begin with
statutory arguments before proceeding to constitutional
questions. See State v. Barrett, 350 Or 390, 397-98, 255 P3d
472 (2011) (citing cases). In this context, as this court specif-
ically held in Thoma, the due process analysis articulated in
Chambers applies only if the evidence could not be admitted
under any provision of state law. 313 Or at 282-83 ("[T]o be
admissible under the due process rule of Chambers, the evi-
dence must be inadmissible under the Oregon Evidence
Code."). In other words, state law does not violate due process
if it offers any avenue by which the evidence may be intro-
duced, regardless of whether defense counsel identified that
avenue in a particular trial. Although the state agrees with
defendant Cazares-Mendez that the evidence is not admissi-
ble under any other provision of the Oregon Evidence Code,
defendant Reyes-Sanchez asserts that the evidence is admis-
sible under the residual hearsay exception of OEC 803(28)(a).

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Accordingly, we begin by considering that statutory basis for
admissibility of the proffered evidence.

# REYES-SANCHEZ

As noted, defendant Reyes-Sanchez contends that
the hearsay testimony in his case is admissible under the
residual hearsay exception, OEC 803(28)(a). The state
argues, however, that OEC 803(28)(a) does not apply on the
facts of this case. As we will explain, we agree with the state
on that point.

For convenience, we repeat the relevant portions of
OEC 803(28)(a):

"The following are not excluded by ORS 40.455 [OEC
802], even though the declarant is available as a witness:

***** *

"(28)(a) A statement not specifically covered by any of
the foregoing exceptions but having equivalent circumstan-
tial guarantees of trustworthiness, if the court determines
that:

"(A) The statement is relevant;

"(B) The statement is more probative on the point for
which it is offered than any other evidence that the propo-
nent can procure through reasonable efforts; and

"(C) The general purposes of the Oregon Evidence
Code and the interests of justice will best be served by
admission of the statement into evidence."

This court explained the scope of that residual hear-
say exception in State v. Campbell, 299 Or 633, 705 P2d 694
(1985). The defendant in that case had been convicted of sex-
ually abusing a three-year-old child. The trial court had
allowed the child's mother to offer hearsay testimony about
the child's statements regarding the incidents, concluding
that they fell under the residual hearsay exception of OEC
803(28)(a) (at that time numbered OEC 803(24)). This court
rejected that conclusion, although a majority held that the
evidence nevertheless might be admissible under a different
hearsay exception.

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In analyzing the residual hearsay exception, this
court observed that the commentary to that rule "clarifies the
purpose and scope of the residual hearsay exception in
Oregon." Id. at 638. That commentary stated that the
legislature

" 'intends that these provisions be used very rarely, and
only in situations where application of the hearsay rule and
its other exceptions would result in injustice. These rules
are not a broad grant of authority to trial judges to admit
hearsay statements.'"

Id. at 639 (quoting OEC 803 Commentary (1981)). Relying on
that commentary, this court then explained that the residual
hearsay exception is narrow:

"The passage above reserved to the legislature the
authority to fashion new exceptions to the hearsay rule and
expressly circumscribed the authority of the judicial system
to create categories of hearsay which will be admissible
under the residual exception. The authority of trial courts is
limited to admitting hearsay very rarely in exceptional
cases where the particular circumstances of the declarant
and the out-of-court statement are demonstrably
trustworthy."

Id. (footnote omitted).

This court went on to conclude that the residual
hearsay exception does not apply to those categories of evi-
dence addressed by specific hearsay exceptions. Id .; see also
id. at 661 (Campbell, J., dissenting) (agreeing with majority
that residual hearsay exception does not permit courts to cre-
ate new "classes" of exceptions to hearsay rule). The court
noted that there was a specific hearsay exception for com-
plaints of sexual misconduct, OEC 803(18a). Because "the
legislature made a conscious decision to restrict unexcited
hearsay declarations of sexual misconduct by enacting OEC
803(18a)," the trial court had erred in allowing hearsay tes-
timony of sexual misconduct under the residual hearsay
exception. 299 Or at 640. Only after determining that the
residual hearsay exception relied on by the trial court did not
apply did this court consider whether the hearsay testimony
was admissible under the specific requirements of OEC

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803(18a). 299 Or at 640-46 (explaining the limitations on the
testimony).6

Campbell demonstrates that the residual hearsay
exception cannot be used to rescue hearsay statements that
fall within a specific category of hearsay exception, but that
fail to meet the conditions for admissibility imposed by the
specific exception. In this case, the hearsay testimony that
defendant Reyes-Sanchez sought to introduce falls within
a specifically defined hearsay exception-the statement
against penal interest exception of OEC 804(3)(c). The
requirements of that specific exception control over the gen-
eral terms of the residual hearsay exception. See ORS
174.020(2) ("When a general and particular provision are
inconsistent, the latter is paramount to the former so that a
particular intent controls a general intent that is inconsis-
tent with the particular intent."). Because "the legislature
made a conscious decision to restrict" the admission of hear-
say statements against penal interest, see Campbell, 299 Or
at 640, the residual hearsay exception of OEC 803(28)(a) does
not apply.

Having rejected defendant Reyes-Sanchez's argu-
ment that the evidence was admissible under OEC
803(28)(a), we must consider his alternative argument on
review-that the hearsay statements should have been
admitted for the reasons articulated by the Court of Appeals.

As we previously noted, the Court of Appeals in
Reyes-Sanchez relied on its substantive conclusion in
Cazares-Mendez that the evidence was admissible under the
statement against penal interest exception of OEC 804(3)(c)
as modified by application of the Due Process Clause of the
United States Constitution. Reyes-Sanchez, 234 Or App at
104-05. In light of its holding in Cazares-Mendez that the evi-
dence was admissible, the Court of Appeals determined that

" The majority in Campbell went on to hold that the disputed evidence could be
admissible under OEC 803(18a), depending on the outcome of a competency hear-
ing before the trial court. Three members of the court disagreed with the majority's
interpretation of OEC 803(18a), asserting that the hearsay evidence was not
admissible under that exception. 299 Or at 653 (Campbell, J., dissenting). As to the
issue relevant to this case, however-the interpretation of the residual hearsay
exception as limited to "very rare and exceptional cases"-the dissent's views were
identical to those of the majority. See id. at 661 (Campbell, J., dissenting).

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the trial court's exclusion of the evidence in Reyes-Sanchez
constituted plain error under ORAP 5.45(1). 234 Or App at
105.

On review, the state does not challenge the Court of
Appeals' application of the plain error rule. The only remain-
ing issue in Reyes-Sanchez, then, is the substantive one pre-
sented in Cazares-Mendez: whether the hearsay statements
in fact were admissible under OEC 804(3)(c), as modified by
the requirements of due process. We turn to that question.

# CAZARES-MENDEZ

Defendant Cazares-Mendez relies on the statement
against penal interest exception, OEC 804(3)(c), as modified
by the requirements of due process. For convenience, we
repeat the relevant portions of that rule:

"The following are not excluded by ORS 40.455 [OEC
802] if the declarant is unavailable as a witness:

**** * *

"(c) A statement which * * * at the time of its making
\* \* \* so far tended to subject the declarant to * * * criminal
liability, * * * that a reasonable person in the declarant's
position would not have made the statement unless the per-
son believed it to be true. A statement tending to expose the
declarant to criminal liability and offered to exculpate the
accused is not admissible unless corroborating circum-
stances clearly indicate the trustworthiness of the
statement."

Defendant Cazares-Mendez asserts that the trust-
worthiness of the hearsay testimony that he proffered is
clearly indicated by corroborating circumstances. We agree.
In this case, the jury could find that Scherer confessed on four
separate occasions to four different witnesses. All of the
statements were identical at their core, in that Scherer had
admitted to stabbing to death a female victim. (To Smith,
Scherer admitted stabbing Valero in particular.) Those con-
fessions were against Scherer's interest, in that they could
expose her to criminal liability. Scherer was not under any
pressure to confess, and she obtained no benefit from doing
so. The statements were made shortly after the murder, and

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(with the exception of the statements to Smith) were sponta-
neous. Furthermore, several of the statements included addi-
tional, corroborating details about the crime: three of the wit-
nesses reported Scherer as stating that she had stabbed the
victim repeatedly (the victim was stabbed about 29 times);
two witnesses reported Scherer as stating that she had
attempted to make the murder appear to be a robbery or bur-
glary, with one witness testifying that Scherer stated she had
sent someone back to rob the place; and one witness testified
that Scherer had described Valero as suffering a seizure dur-
ing the attack, when Valero in fact had epilepsy.

All those considerations were relevant to determin-
ing the trustworthiness of Scherer's hearsay statements. The
state itself concedes as much. Yet the trial court in Cazares-
Mendez seemingly failed to give weight to any of them, men-
tioning only one (the statement that Valero had had a seizure
during the attack, when Valero had epilepsy). The trial court
erred as a matter of law in failing to evaluate those consid-
erations in determining whether the hearsay statements
were trustworthy.7

We conclude, as did the Court of Appeals, that those
corroborating circumstances clearly indicate the trustworthi-
ness of the hearsay statements offered by defendant Cazares-
Mendez.8 Accordingly, that aspect of OEC 804(3)(c) was met
in this case.

7 On review, the state contends that other considerations negated a determi-
nation that the hearsay statements were trustworthy. In particular, the state
asserts that there is no independent evidence to establish that Scherer committed
the murder. Certainly, such independent evidence could constitute corroborating
circumstances indicating the trustworthiness of the hearsay statement. But noth-
ing in the text or context of OEC 804(3)(c) requires such independent evidence.
Indeed, as the trial court noted in Reyes-Sanchez, when it comes to forensic evi-
dence, nothing ties either the defendants or Scherer to the crime.

The state's other considerations that allegedly negate a finding of truthfulness
all relate to witness credibility. We have already explained why they cannot be
considered.

8 We noted earlier that defendant Cazares-Mendez offered two other facts in
support of the trustworthiness of the hearsay statements: the absence of any other
stabbing murder of a female during the time period, and the presence of a scratch
on Scherer's neck shortly after the murder. While those facts do provide additional
support for the trustworthiness of the hearsay statements, they are not essential to
our determination that the hearsay statements were trustworthy. We state that
conclusion expressly because we are also considering the trustworthiness of the
hearsay statements in Reyes-Sanchez, and those additional facts do not appear to
have been introduced during that trial.

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It is undisputed, however, that the hearsay state-
ments at issue are not admissible under OEC 804(3)(c),
because the declarant, Scherer, was available to testify. As
did the Court of Appeals, we now turn to the question
whether due process nevertheless required the trial court to
admit the testimony.

The key case in that regard is Chambers. Briefly, the
facts of that case were as follows. The defendant was charged
with having murdered a police officer. The defendant
asserted that another man was the killer. Not only had the
other suspect admitted to three friends in private conversa-
tions that he had killed the officer, but he had also signed a
written confession, although he later repudiated it. 410 US at
287-89. The defendant called the other suspect to the stand
and introduced the confession, but the state elicited from the
suspect that he had repudiated the confession, and the trial
court, based on state law, refused to allow the defendant to
cross-examine the suspect as an adverse witness. Id. at 291-
92. The defendant also sought to introduce the testimony of
the three witnesses to whom the suspect had confessed, but
the trial court excluded the testimony as inadmissible hear-
say-state law did not recognize a hearsay exception for
statements against penal interest. Id. at 292-93, 299.9

The United States Supreme Court concluded that
the defendant had been denied "a trial in accord with tradi-
tional and fundamental standards of due process." Id. at 302.
Besides concluding that the trial court had erred in refusing
to allow the defendant to cross-examine the other suspect,

9 In Chambers, the state evidentiary rule prevented the defendant from intro-
ducing evidence of the other suspect's confession to the crime, either as substantive
evidence (through the hearsay testimony of the witnesses who heard him confess)
or as impeachment evidence challenging his denial of any confession. 410 US at
294. Here, in contrast, the state suggests that it might have been possible for defen-
dants to have called Scherer as their witness and, if she denied making the state-
ments at issue, attempted to introduce her hearsay statements as impeachment
evidence. But see Cazares-Mendez, 233 Or App at 336 n 20 (concluding that the evi-
dence would not have been admissible for purposes of impeachment, because the
primary purpose would have been to expose the jury to otherwise inadmissible tes-
timony). Defendants did not attempt to call Scherer, other than during their offer
of proof, and we express no opinion whether, as the Court of Appeals concluded,
defendants could not have called Scherer for the primary purpose of impeaching
her.

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the Court also held that, under the circumstances, due proc-
ess required the trial court to admit the hearsay testimony by
the three witnesses. The Court explained that the testimony
of the three witnesses was offered "under circumstances that
provided considerable assurance of their reliability." Id. at
300. Specifically:

"First, each of [the other suspect's] confessions was made
spontaneously to a close acquaintance shortly after the
murder had occurred. Second, each one was corroborated by
some other [independent] evidence in the case * * *. The
sheer number of independent confessions provided addi-
tional corroboration for each. Third, whatever may be the
parameters of the penal-interest rationale, each confession
here was in a very real sense self-incriminatory and
unquestionably against interest. [The other suspect] stood
to benefit nothing by disclosing his role in the shooting to
any of his three friends, and he must have been aware of the
possibility that disclosure would lead to criminal prosecu-
tion. *** Finally, if there was any question about the
truthfulness of the extrajudicial statements, [the other sus-
pect] was present in the courtroom and was under oath. He
could have been cross-examined by the State, and his
demeanor and responses weighed by the jury."

Id. at 300-01 (citations and footnotes omitted). Because the
hearsay statements were trustworthy and were central to the
defendant's defense, the Court concluded, due process
required that the testimony be admitted:

"Although perhaps no rule of evidence has been more
respected or more frequently applied in jury trials than that
applicable to the exclusion of hearsay, exceptions tailored to
allow the introduction of evidence which in fact, is likely to
be trustworthy have long existed. The testimony rejected by
the trial court here bore persuasive assurances of trust-
worthiness, and thus was well within the basic rationale of
the exception for declarations against interest. That testi-
mony also was critical to [the defendant's] defense. In these
circumstances, where constitutional rights directly affecting
the ascertainment of guilt are implicated, the hearsay rule
may not be applied mechanistically to defeat the ends of
justice."

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Chambers remains good law. The United States
Supreme Court recently reaffirmed the holding of Chambers
in Holmes v. South Carolina, 547 US 319, 325-26, 126 S Ct
1727, 164 L Ed 2d 503 (2006), where the Court unanimously
concluded that the trial court erred in preventing a defendant
from introducing hearsay testimony that another person had
admitted committing the crime. Other courts have recently
relied on Chambers to conclude that state laws restricting the
introduction of trustworthy hearsay evidence violated due
process, where the evidence was that another person had
committed the crime. E.g., Lunbery v. Hornbeak, 605 F3d
754, 760-62 (9th Cir), cert den, __ US __ , 131 S Ct 798,
178 L Ed 2d 545 (2010) (relying on Chambers, the court held
that the petitioner was entitled to federal habeas corpus
relief when the state trial court had excluded hearsay testi-
mony that another person had admitted committing the mur-
der at issue); Chia v. Cambra, 360 F3d 997, 1003-08 (9th Cir
2004), cert den, 544 US 919 (2005) (relying on Chambers, the
court held that the petitioner was entitled to federal habeas
corpus relief when the state trial court had excluded hearsay
testimony that one of the murderers had exculpated peti-
tioner while admitting his own guilt).

We have already concluded that the "corroborating
circumstances clearly indicate the trustworthiness" of the
hearsay statements at issue here. We see no meaningful dis-
tinction between that standard and Chambers' requirement
that the hearsay statements have "persuasive assurances of
trustworthiness." Id. at 302. Nor does the state assert that
any difference exists.

The state contends, however, that due process is not
violated here, because the unavailability requirement of
OEC 804(3)(c) reflects a rational and reasonable policy pref-
erence for live testimony by the declarant, rather than hear-
say testimony by witnesses. As the United States Supreme
Court has explained, a criminal defendant's right to a "mean-
ingful opportunity to present a complete defense" is violated
by "evidence rules that infring[e] upon a weighty interest of
the accused and are arbitrary or disproportionate to the pur-
poses they are designed to serve." Holmes, 547 US at 324
(alteration in original; internal quotation marks and cita-
tions omitted) (trial court erred when it prohibited criminal

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defendant from offering hearsay testimony that another per-
son had confessed to the crime; the trial court had improperly
relied on the strength of the prosecution's case, not the pro-
bative value of the defendant's evidence). Holmes cited
Chambers as an example of such an arbitrary or dispropor-
tionate rule. 547 US at 325-26. The state contends that OEC
804(3)(c)'s requirement that the declarant be unavailable is
not arbitrary or disproportionate; it instead reflects a sensi-
ble preference that the declarant, when available, should be
called to the stand and directly examined in the presence of
the jury, rather than permit a defendant to present less reli-
able hearsay testimony.

Defendant Cazares-Mendez asserts-and we
agree-that, where the unavailability requirement is used,
as here, to exclude otherwise trustworthy evidence that, if
believed, shows that a person other than defendant commit-
ted the crime, that requirement is arbitrary and dispropor-
tionate to the purpose that the evidentiary rule is designed to
serve. As defendant correctly points out, the unavailability of
a declarant who has allegedly confessed to the crime would
not make her hearsay testimony more reliable-it would
make it less reliable. If the hearsay declarant is available, as
here, the declarant can take the stand and clarify or refute
the confession that he or she allegedly made. If the declarant
is unavailable, however, no such opportunity exists. Indeed,
the unavailability of the declarant actually would help wit-
nesses concoct falsified "confessions" by absent third parties,
because they would know that the missing declarant will not
be around to deny their claims. Accordingly, we conclude that
the Due Process Clause, as interpreted in Chambers and sim-
ilar cases, required the trial court to disregard the "unavail-
ability" requirement of OEC 804(3)(c) and permit the testi-
mony of Torres, Rivera, Callahan, and Smith.

The Court of Appeals also concluded that the error
was not harmless. 233 Or App at 337. The court noted that
the hearsay testimony was central to defendant's claim that
another person committed the crime, and it was "sufficiently
substantiated as trustworthy by corroborating circum-
stances." Id. Although the state presented substantial evi-
dence of defendant's guilt, there was no forensic evidence
directly linking defendant to the crime. Id. at 337-38. The

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<!-- PageHeader="State v. Cazares-Mendez/Reyes-Sanchez" -->

state does not challenge the Court of Appeals' determination
that, if the trial court erred, the error was prejudicial.

We conclude that the trial court erred in Cazares-
Mendez and that that error requires reversal. In determining
whether "corroborating circumstances clearly indicate the
trustworthiness of the statement" under OEC 804(3)(c), the
trial court erred as a matter of law in failing to consider all
the relevant circumstances. Moreover, while Scherer's avail-
ability to testify meant that the hearsay statements were not
admissible under OEC 804(3)(c), due process nevertheless
required that the hearsay testimony be admitted. We agree
with the Court of Appeals that the case must be remanded for
a new trial.

# CONCLUSION

In summary, we conclude that courts evaluating
"trustworthiness" under the hearsay exceptions should not
consider the credibility of the witnesses testifying to the
hearsay statements, but rather should focus on whether the
declarant's statements are sufficiently corroborated. We con-
clude in both Cazares-Mendez and Reyes-Sanchez that the
hearsay statements met the requirements for admission as
statements against penal interest under OEC 804(3)(c), but
for the fact that the declarant was available to testify. Fur-
ther, we conclude that barring the admission of hearsay
statements that another person had confessed to the crimes
with which defendants were charged on the ground that the
declarant was available to testify was, on the facts here, a
violation of each defendant's rights under the Due Process
Clause.

The decisions of the Court of Appeals are affirmed.
The judgments of the circuit court in State v. Cazares-
Mendez, case no. C052532CR, and in State v. Reyes-Sanchez,
case no. C052531CR, are reversed, and the matters are
remanded to the circuit court for further proceedings.