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Oregon Parole Board Improperly Excluded Witnesses at Revocation Hearing

The Oregon Supreme Court, sitting en banc, held that the Oregon Board of Parole (Board) had improperly deprived a parolee of his right to call witnesses at a revocation hearing.

Parolee Thomas Edward O’Hara was arrested on March 9, 2005 for a parole violation after his parole officer, two other parole officers and police conducted an unscheduled home visit.

On March 15, 2005, O’Hara requested a formal hearing and asked that six witnesses be called to testify. The hearing officer denied his request, finding the witnesses could offer nothing relevant to the allegations against him.

The formal hearing was conducted on March 28, 2005. The hearing officer acknowledged O’Hara’s witness request and again denied the request, “concluding that the testimony of those witnesses was not relevant to the issues to be examined.” O’Hara objected to the denial. The hearing officer then found O’Hara in violation of his parole supervision and recommended a 45-day jail sanction.

On appeal, the Oregon Supreme Court rejected the Board’s argument that O’Hara was required to make an offer of proof at the hearing as to each witness’ testimony. “That might be an appropriate objection in formal litigation,” the Court wrote. “An informal hearing, however, does not require the same level of formality as litigation in a court of law.”

The Supreme Court also rejected the Board’s argument that O’Hara had failed to present a “theory of admissibility,” concluding that “there is no requirement ... – in statute, rule, or case law – that a party offer a ‘theory of admissibility’ to support the testimony of an eyewitness to the very events at issue in the informal hearing.”

Noting that “relevance does not pose a high standard for admissibility,” the Court applied the Oregon Evidence Code and concluded that O’Hara’s witnesses “reasonably could have been expected to provide relevant evidence.” The Supreme Court further rejected the Board’s claim that exclusion of the witness testimony was harmless error. Finally, the Court found that the Board erred in failing to issue subpoenas for O’Hara’s requested witnesses.

Therefore, the Supreme Court reversed and remanded “so that the Board may conduct another hearing at which it considers relevant testimony” from O’Hara’s witnesses. See: O’Hara v. Board of Parole, 346 Or. 41, 203 P.3d 213 (Ore. 2009).

Related legal case

O’Hara v. Board of Parole