State v. Akins: Permitting Delayed-Disclosure Expert Testimony and Child-Declarant Hearsay Exception under OEC 803(18a)(b)

Introduction

State v. Akins, 373 Or 506 (2025), is a decision of the Supreme Court of Oregon addressing two evidentiary issues that commonly arise in child‐sexual‐abuse prosecutions. The petitioner was Shane Aaron Akins, convicted in Clackamas County of multiple counts of first‐degree sodomy and sexual abuse on the testimony of his daughter, “M.” The principal questions on review were:

Whether expert testimony that child victims often delay reporting abuse is admissible even if the defense does not argue that the delay undermines the victim’s credibility (the “delayed‐disclosure” issue).
Whether the out‐of‐court statements of a child declarant are admissible under the child‐declarant exception to the hearsay rule (OEC 803(18a)(b)) when the declarant was under 18 when the statements were made but is an adult at trial (the “child‐declarant hearsay” issue).

The court, sitting en banc, unanimously affirmed the convictions and the evidentiary rulings—though on the child‐declarant hearsay question there was a separate dissent taking a narrower view of OEC 803(18a)(b). The majority established two clarifying principles for Oregon evidence law:

Expert testimony that delayed reporting is common in child‐sexual‐abuse cases is admissible to assist the jury in assessing credibility even if the defense does not specifically attack the delay as evidence of fabrication.
Under OEC 803(18a)(b), out‐of‐court statements by a child declarant are admissible if the declarant was under 18 at the time she made them and later testifies at trial—even if she has reached adulthood by trial.

Summary of the Judgment

Justice Bushong, writing for the majority, affirmed the Court of Appeals and circuit court on both issues:

Delayed‐Disclosure Evidence: The trial court properly admitted expert testimony from a CARES forensic interviewer that “delayed disclosure” of sexual abuse is common and unrelated to whether the abuse occurred. Such testimony is relevant to counter an inference—whether or not pressed by the defense—that a reporting delay implies falsity. The evidence also was neither unduly prejudicial under OEC 403 nor improper “vouching.”
Child‐Declarant Hearsay Exception: The court held that OEC 803(18a)(b) admits out‐of‐court statements by a child declarant about abuse if the victim was under 18 when she made them and thereafter testifies at trial, regardless of her age at trial. That conclusion follows from the text and context of the rule, as well as its enactment history.

Justice Duncan, joined by Justices James and Masih, concurred in the result on the delayed‐disclosure issue but dissented on the hearsay question. The dissent argued that the rule’s cross-reference to “child declarant” logically requires that the witness remain a child at the time of trial testimony.

Analysis

1. Precedents Cited

The court relied heavily on its own and the Court of Appeals’ prior cases:

State v. Perry, 347 Or 110 (2009): Held that delayed‐disclosure expert testimony is admissible to rebut an inference that delayed reporting proves fabrication, and not intrinsically unfairly prejudicial.
State v. White, 252 Or App 718 (2012): Court of Appeals precedent holding that delayed‐disclosure testimony is relevant and independently admissible even if the defense does not argue fabrication by delay.
State v. Zybach, 308 Or 96 (1989): Confirmed that evidence explaining a victim’s reporting delay can be used in the state’s case‐in‐chief to meet its burden of proof.
State v. Serrano, 355 Or 172 (2014): Held the state may “bring out up front” evidence tending to strengthen physical evidence, illustrating that a burden‐bearing party may anticipate weaknesses in its proof.
State v. Middleton, 294 Or 427 (1983) and State v. Gherasim, 329 Or 188 (1999): Admitted expert testimony on child victims’ typical responses and dissociative amnesia to help juries assess victim credibility.
State v. Jesse, 360 Or 584 (2016): Explains that expert evidence “modifying inferences that the jury otherwise might draw” is often relevant and helpful under OEC 702 and 401.
State v. Juarez-Hernandez, 316 Or App 741 (2022): Court of Appeals held OEC 803(18a)(b) covers statements by a declarant who was under 18 when made but 18 at trial; review den’d.
State v. Lamb, 161 Or App 66 (1999): Early Court of Appeals decision that a 17-year-old’s statements were admissible under OEC 803(18a)(b) when she testifies.

2. Court’s Legal Reasoning

a. Delayed-Disclosure Evidence

Under OEC 401, evidence is relevant if it makes a consequential fact—here, the victim’s credibility—more or less probable. The majority recognized that jurors could infer that a reporting delay undermines credibility, even if the defense makes no such argument. Given the state’s burden to prove abuse beyond a reasonable doubt, the state may anticipate that inference and present expert evidence in its case-in-chief to explain why delayed reporting is common and neutral as to the truth of the allegation. That evidence is not intrinsically unfairly prejudicial under OEC 403 when properly framed—i.e., the expert explicitly disclaims that delay implies deception—and it is not impermissible “vouching” under Oregon law so long as the expert does not opine on the victim’s personal truthfulness.

b. Child-Declarant Hearsay Exception

The majority interpreted OEC 803(18a)(b) by examining its text, context, and legislative history. The rule excepts from the hearsay prohibition “a statement made by a person concerning an act of abuse * * * if the declarant either testifies at the proceeding and is subject to cross-examination, or is unavailable but was under 12 when the statement was made.” Subsection (d) then provides that the rule “applies to a child declarant, a declarant who is an elderly person, or an adult declarant with a developmental disability.”

The majority concluded that the text does not require the declarant to remain a child at the time of trial testimony. Rather, the critical variable is the declarant’s age when the statements were made: so long as she was under 18 at that time and subsequently testifies, her recorded interview and related out-of-court statements meet the exception—even if she has since turned 18. That reading, the court held, aligns with the rule’s context among other hearsay exceptions (many of which hinge on the declarant’s age or physical condition at the time of the statement), and with its evolutionary history, which never explicitly added an age-at-trial requirement.

3. Impact on Future Cases and on Oregon Evidence Law

State v. Akins clarifies two important but sometimes controverted evidentiary doctrines in child-abuse litigation:

Broader Admissibility of Delayed-Disclosure Testimony: Trial courts need not await a defense opening of the “fabrication by delay” door. As a matter of law, such expert evidence is relevant to any jury’s credibility assessment and may be introduced in the state’s case-in-chief, subject to the usual OEC 403 balancing and anti-vouching limits.
Expanded Child-Declarant Exception: OEC 803(18a)(b) admitted a child’s out-of-court statements about abuse when she testifies, even if she has since grown up. That reduces the risk that vital early disclosures—made when the child was most candid—will be lost to technical hearsay constraints.

The decision also signals to trial judges that these exceptions must be applied consistently with the text and legislative purpose of Oregon’s Evidence Code—and that any narrow or restrictive readings of child-declarant or delayed-disclosure law should give ground to the legislature’s clearly expressed concerns for child victims and the reliability of their statements.

Complex Concepts Simplified

Delayed-Disclosure Evidence: Child sexual-abuse victims often take time—weeks, months, or even years—to disclose abuse. Expert testimony on this phenomenon helps jurors understand that a reporting delay is not inherently suspicious and does not speak to the truth of the allegation.
OEC 702 (Expert Testimony):: Permits an expert witness to offer specialized knowledge if it “assist[s] the trier of fact” in understanding evidence or determining a fact in issue.
OEC 403 (Unfair Prejudice):: Excludes relevant evidence if its probative value is “substantially outweighed by the danger of unfair prejudice” by, for example, inflaming the jury or confusing issues.
Vouching (Improper Bolstering):: Occurs when one witness opines on the credibility or truthfulness of another, usurping the jury’s role. An expert may explain general patterns (e.g., delayed disclosure) but not say “I believe that witness is telling the truth.”
Hearsay Rule (OEC 801–802):: Bars the admission of out-of-court statements offered to prove the truth of their contents, unless an exception applies.
Child-Declarant Exception (OEC 803(18a)(b)):: Admits out-of-court statements about abuse made by a person who was a child at the time of the statement if that person later testifies and is cross-examined, or if the person was under 12 and is unavailable—provided reliability safeguards and advance notice to the defense.

Conclusion

State v. Akins fills important gaps in Oregon’s evidence law for child sexual-abuse cases. First, it affirms that experts can explain the well-documented phenomenon of delayed disclosure whenever it assists the jury’s credibility evaluation—whether or not the defense assails the delay. Second, it holds that the child-declarant hearsay exception applies when the victim was under 18 at the time of her disclosures, even if she has reached adulthood by trial. Together, these rulings secure juries’ access to specialized knowledge and to early, candid statements of child victims, while preserving the defendant’s confrontation rights and a fair balance under the Evidence Code. In doing so, the court advances Oregon’s commitment to ensuring both accurate verdicts and the protection of vulnerable witnesses in the courtroom.