Oregon Supreme Court, December 2, 2021
Summarized by Rankin Johnson, OCDLA
HEARSAY AND CONFRONTATION - Proof of unavailability
State failed to prove that witness was unavailable and hearsay was thus admissible. Trial court and Court of Appeals reversed, remanded for further proceedings.
The state had repeated contact with the witness in the months before trial, but at some point the witness ceased cooperating and asked not to be contacted again. The witness was personally served with a subpoena, but closed the door on the process server and thereafter did not appear at trial.
In holding that the witness was not available, the trial court observed that the witness was "refusing to cooperate." The Court of Appeals, in affirming, found that the state had undertaken reasonable efforts in good faith to produce the witness.
In reversing, the Supreme Court held that, to demonstrate unavailability, the state must exhaust measures that are reasonably available to produce the witness. That inquiry does not depend on the likelihood of success of a particular measure. Further, a witness's failure to appear in response to a subpoena does not establish unavailability - the state must take further action or establish that any such action would be futile. The state did not attempt to telephone the witness after the witness's failure to appear, and also did not attempt to contact the witness's probation officer.
The court further explained that, in objecting to a continuance, defendant did not invite an error regarding hearsay.
Balmer, dissenting, would have held that defendant could not argue that the state failed to make sufficient efforts to secure the witness's attendance, because defendant objected to a continuance which would have been necessary for some of those efforts.
State v. Belden 369 Or 1 (December 2, 2021) (Flynn, Balmer dissenting) (Multnomah County, Bushong)