centers around the child hearsay provision of the oregon evidence code namely organ evidence code section eight zero three eight hundred eighty subsection b that rule provides a limited exception and i stress a limited exception to the general rule that hearsay is not admissible course that applies at the federal level as well at all levels here say is not admissible but there are exceptions here what's important is limited exception does not allow child hearsay statements to be admitted at a trial unless three specific criteria are met the proponent of the hearsay usually the state has to give notice of its intention to admit that hearsay it has to give timely notice of its intention fifteen days before trial is the time limit that the legislature set in oregon and finally this is what we're dealing with here the last criterion it has to identify for the adverse party the particularly of the statement and that's what we're dealing with here whether or not council in this case the state gave notice that was sufficient under eight o three ok now what i have to note off the bat is this the p c r code the post conviction court state court found this quote and this is at the excerpt record page twenty seven the notice by the state only refer to discovery without specifying specific statements that's a finding of the post conviction court it's entitle to deference and what that says is this under the law that was i adequate what also was well established at the time of the trial is the fact that if you do not comply with this rule this rule of exclusion then no statement may be admitted so if you don't comply with these three criteria you're out and here the post conviction fat court found the notice only referred to discovery and it didn't specify specific statements so you're out so here here's here's the and twelve cases and the state places great emphasis on that mr pierce is not relying on those cases there are in fact is no need for mr pierce to rely on those cases because as i say in two thousand leahy iverson sauer mckenzie all those cases already established the two propositions that i set forth right it's exclusionary you can't admit it if you don't comply with the rules and in at least one of those cases the issue was not the timeliness not giving of notice of your intention but the identical issue that we have here that was all before mr pierce's trial what chase what would and what the appeals in hagberg did not recognize i don't know why when you read hagberg and i read it carefully hagberg not even read all the briefs for some reason none of the parties cited to the court of appeals the olson case from two thousand and eight and that's why when you read chase and you look for olson it's nowhere to be found that is the distinguishing fact in this case before mr pierce's trial in two thousand and ten the oregon court of appeals in olson had already decided the issue here it made clear to competent counsel that this exclusionary rule if the state does not comply with these requirements you move you move to keep it out and why not the best way not to deal with difficult evidence in any case is not to deal with difficult evidence or simply no strategic note treat tactical reason for counsel not to object when you have this sort of an exclusion admit that evidence and yet that's what counsel failed to do now the olson case you know if you look at all the language there from the case the notice that the state provided to defendant in this case olson did not provide any details about the evidence and that was the objection the object their counsel did object the court overruled the objection but when you want a court tells you the problem here is that they didn't provide any details and when the statutory language says you have to give the particularly of the statement and in iverson they used the word the substance language that would later be used in chase but we were not there yet what more do you need your honour's we all know my basically my basic argument is this the playing the language of the statute says what it says we all know what particularly means bill of particulars the fourth amendment we're all well from but familiar with that language and so when you have a court event in two thousand and eight telling you the problem with this notice was it didn't give any details and when you have other car you have any authority that would permit us to basically go where you want to go and what i mean by that is that you've pointed out that the oregon courts maybe have not been entirely consistent on this issue that they've overlooked this case when you look at there's that twenty fifteen cas the hagberg hagberg this they don't really seem to get into olson at all how do we as a federal court we're in a sense interpret in state court law how do we go where you want to go and say you know that but i would say you know based on this record especially the record we're dealing with is the case law in oregon and i think you're right again on the hedberg issue just like chase would is the case that discusses on the books it's there like i say i'm personally familiar with counsel counsel that case is excellent counsel i'm not sure why that case was overlooked i don't know why the court overlooked it given its fairly recent publication so i just court adam holbrook on behalf of the state superintendent i had an opening remarks prepared but i think i'll just jump right into the olson case and explain why even if the trial counsel and i think we assume the trial counsel did know about the olson decision not all reasonable counsel in two thousand and ten would have objected to the state's notice in this case and first i think it's important to note that the notice and also in provided no detail whatsoever it didn't identify who gave or who made the statements that issue that which victim it didn't identify to whom the statements were made and it didn't even say that the state had provided the statements in discovery  to try out to trial counsel you contrast that with the notice here that the state gave which did identify who made the statements identify to whom the statements were made and in some instances the specific report in which those statements could be located and confirmed that the state had given all of the discovery in which those statements occurred to trial counsel that is a much different notice much more detailed notice then saying disclosure but it doesn't amount to with the statute requires which is the particulars of how you're going to use the statement who made them that status or pro reason otherwise of course these statements are going to be disclosed in the discovery and i don't see how you can just say well it's in the discovery go look for them to see where they are and you know what they are so why would we have the statute requires any particulars well i think we have to put ourselves in the shoes of counsel in two thousand and ten and what the statute says is that the state or whoever is offering the hearsay statements must make known to the adverse party the particulars of the statement now the rule doesn't say you have to identify each specific statement and in fact organ courts of later said that's not what you have to do you have to provide generally the substance of the statement so it's not clear when you when you have when you look at the circumstances of this case trial counsel gets this notice three months in advance reads the notice has no question at all about which statements the state is referring to knows precisely which statements the state is referring to and you've got sort of this this somewhat ambiguous rule that says the state just has to make known the particulars of the statement trial counsel's thinking well i know exactly which statements the state's talking about it's not going to ring bells in all reasonable counsel that hey maybe i should object because this isn't detail enough even though i know exactly what they're talking about and there was no case in oregon by two thousand and ten that had gone anywhere close to saying that the level of detail in the state's notice in this case was inadequate that didn't happen until two thousand and twelve and woods are in what in the would case where that notice was basically identical to the state's notice here and even in that case the organ court of appeals did not foreclose the possibility that that notice could be adequate under this under certain circumstances to have a responsibility if you're doing these types of cases to be familiar with the law and the direction of the law where things are going and if there are cases where the rest of counsel who is trying these cases are objecting they're preserving issues for peals do you think that if you try in this case and you're going to trial with this case you even though you might have what you think you may be thinking is notice he would still have a duty to act and at the very least to preserve the issue i think that's a much more compelling argument if it was if it was obvious the time that that that that was that this notice was deficient and i think this is what makes this case kind of unique in most trickling in failure to object cases there's no alice that trial counsel could have made an objection the only dispute is over whether trial counsel made a strategic decision not to make a known objection here were one step removed it wasn't clear under oregon law at all that that th e state's notice in this case was deficient in the fact that maybe one or two other exe exemplary defense attorneys did make the make the objection doesn't mean that all reasonable counsel would have made that objection and you know under the under the deference we give the state p c r court under ed that all fair minded jurists would have found to the contrary and i'd also just just point out that i  it's important to note that trial counsel even if they even a trial cancel thought perhaps there's an objection here even though no oregon case said that you still have to weigh the idea that maybe you're going to lose and if you're going to make you know make a motion in limine a to exclude this evidence you can have to stand before the trial court and the trial court's going to ask you how long have you had the notice for and trial counsel's going to say i've had it for three months more than two and a half months before it was actually due and in the trial court's going to say well did you ask for any clarification in counsel going to say no i didn't in trial court's going to say would you have any doubt what the state is tempting to introduce here in trial counsel's going to be forced to admit that no i don't i know exactly what statements are at issue and there is a risk i think in not insubstantial risk of losing some credibility with the trial court especially if you do as well petitioners brief you waited intel trial until jeopardy attaches and you try to sort of raise this objection it you know when the evidence is being offered this was a bench trial in raising in objection  under those circumstances where you kind of been sitting on this notice and you haven't said anything and you don't have any question about what's at issue i think does rescind credibility and could harm the client now if the that he didn't have any question about what exactly was going to be the sceptic and the devil here saying well the there was a declaration from trial counsel that said precisely that that the trial counsel had no question  one example being knowing that judge judge's wife was prosecutor who brought the indictment and still waiting right to a jury trial and having the status of the prosecutor brought the indictment and trying the case i would think that is kind of a classic example of division performance of the i recognize it's not in front of us it with respect to that would be my council as a whole in this case for whatever reason i understand that the court's concern and i would say but that the court's analysis here is limited just to this particular issue it's the only issue but i think it's relevant because you're asking us to accept the south it david by the same attorney who tried this case in the manner in which to toward law just described yet you're asking us to post conviction the state post conviction court's decision is that it credited trial counsel statements and therefore this court would defer to that factual finding by the state post conviction court that would be my response practice that alone suggest that it was not understood across all defense attorneys that an objection should be made to this degree of specificity in the notice otherwise the prosecution prosecutor office would have had that practice anymore and so i think there's just there's no there's no case that like i said that by two thousand and ten got anywhere close to saying that this notice was inadequate and there are certainly facts on the record in fact not all reasonable counsel would have thought that it was an adequate including the prosecutor statements including the fact the trial counsel said that she wasn't confused at all about which statements were at issue and with that i see my time is concerned the form of a question that the state posed to mr pierce counsel didn't object to the admission of any of the hearsay statements to the contrary she actually elicited further hearsay testimony herself and i cite each of the record for that proposition you know when you look at these affidavits accounts refer to what strikes me as how similar they are they're actually saying virtually the same thing we have a great relationship we know each other she wouldn't ask me any questions she could ask me questions there was no confusion you know it s strikes me as a form of willful ignorance to say you know our whole office even in this county despite the fact that olsen's all the book and i really did her counsel discuss olson just referring to maybe would two thousand and twelve the fact is olson was on the book i don't see how an entire this no reasonable house no reasonable council would have objected and you contrast these notices contrast the notice in that case the case with our case in our car go to so much better but it's not there's one there's one insufficiency and that is the particularities you could talk about the fact that it listed witnesses and it referred to discovery and inferred reports but you know what also it referred to witnesses who didn't testify and when you look at evidence that was introduced like no physical no medical exams that were done no forensic interview audio that was done instead you introduce the hearsay statements instead right and what counsel supposedly knew so clearly what was going to be introduced audio video reports discovery all of that was given to her how do you know exactly what reports when you got that sort of volume i mean i don't know the length of the audio for the video but for me to sit here and say oh i've listened audio listen to video i know exactly what's coming it no there is not particularly here not specificity no details this notice was pour the court found that the evidence was not overwhelming the court relied on this hearsay testimony to enhance the girl's credibility and for without that we will be stuck with the two girls one of whom had cognitive limitations couldn't remember her own birthday the evidence from the girls was not very persuasive at all and i agree other errors that were not preserved like waiving the right to a jury trial not