FEBRUARY 2026 | 25 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. 3) testimony the victim gives at a hearing on their application for a protective order. All three of these statements are made to establish or prove a past event or past events of domestic abuse and are relevant to a later domestic abuse prosecution. The statements enumerated in S.B. 607 are precisely the kind of testimonial hearsay that triggers the confrontation clause, yet S.B. 607 mandates their admission even if the declarant is not subject to cross-examination. A similar hearsay exception, the child hearsay exception, codified at 12 O.S. §2803.1, serves as a cautionary tale from which S.B. 607 could learn. In Foote v. State, the Oklahoma Court of Criminal Appeals found that the child hearsay exception was unconstitutional because it ran afoul of the Sixth Amendment’s confrontation clause.16 As originally codified, the child hearsay exception permitted the admission of statements that a minor child made describing acts of abuse without requiring the minor child to be subject to cross-examination.17 This is the same constitutional concern that S.B. 607 currently raises. The court in Foote emphasized, “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”18 Accordingly, the Oklahoma Court of Criminal Appeals urged the Oklahoma Legislature to amend the child hearsay exception, which it did.19 Now, the child hearsay exception permits the admission of statements that a minor child made describing acts of abuse without requiring the minor child to be subject to cross-examination in pre and posttrial proceedings only. Conversely, the minor child’s statement is admissible at trial if and only if 1) the minor child personally testifies at trial or 2) the minor child is unavailable to testify at trial, and the defendant had a prior opportunity for cross-examination. Further, the same statement is admissible if it is nontestimonial in nature. By conditioning admission on the character of the statement (i.e., whether the statement is testimonial) and on the stage of the prosecution in which the statement is sought to be admitted, the child hearsay exception now meets the requirements Crawford imposes. Because S.B. 607 does not condition admission on the character of the victim’s statement nor on the stage of the prosecution in which the statement is sought to be admitted, S.B. 607 does not meet the requirements Crawford imposes and is, thus, at risk of failing constitutional muster if challenged. S.B. 607 may reflect the Legislature’s effort to “strike a balance between fairness for the defendant and the victim witness” to ultimately “reduce barriers” for the latter.20 But a balance is not struck if the reduction of barriers for the victim witness costs the defendant their constitutional right to confrontation.21 Though the Legislature seems to think such a balance is struck through S.B. 607 as codified, which is clear cause for concern. Due Process The second constitutional concern S.B. 607 raises is that it undermines due process. Due process requires criminal prosecutions to be fundamentally fair. S.B. 607 subverts this requirement by mandating admission of certain out-of-court statements at critical stages of criminal and juvenile delinquent domestic abuse prosecutions while simultaneously denying the defendant a fair, meaningful opportunity to challenge said statements. S.B. 607’s mandated admission (through the Legislature’s use of the word “shall”) of certain out-ofcourt statements deprives courts of their discretion to exclude statements that may be unreliable, uncorroborated or contradictory to other evidence. This mandate further denies the defendant a fair, meaningful opportunity to challenge the domestic abuse allegations against them, especially given that S.B. 607 mandates admission of any statement that merely purports to describe an incident of domestic abuse. This language imposes an exceptionally low threshold for admissibility and thus raises a constitutional concern. Burden of Proof The third constitutional concern S.B. 607 raises is that it blurs the burden for proving domestic abuse, which may lead to improper or inconsistent application of both the statute and the correct burden of proof. S.B. 607 is codified in Title 12, which governs civil procedure,22 and incorporates a definition of domestic abuse codified in Title 22, which governs criminal procedure.23 This definition of domestic abuse is incorporated in other statutes. The overwhelming majority of those statutes regard either criminal law or criminal procedure, and only a couple of statutes regarding family and domestic matters incorporate this definition of domestic abuse.24 Though case law seems to suggest this definition of domestic
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