Oregon Supreme Court - Feb. 13, 2014
by: Abassos and Alex Collins • February 13, 2014 • no comments
Forfeiture by wrongdoing (OEC 803(3)(g)) - Intent to Prevent Witness Testimony Need Not be Primary (or only) Intent
The trial court used the correct standard for the “forfeiture by wrongdoing” hearsay exception where it found, by a preponderance of the evidence, that one reason why defendant killed his wife was to prevent her from reporting and testifying to a restraining order violation. It is not necessary that causing the declarant to be unavailable as a witness be defendant's only or primary purpose, so long as it was a purpose. Additionally, the defendant need not act in contemplation of an ongoing matter for the exception to apply. The term “witness” means: “one who gives evidence regarding matters of fact under inquiry.” The legislature intended the forfeiture by wrongdoing exception to be as broad as the US Supreme Court identified it to be in Crawford. Thus, the fact that the declarant, due to being murdered, was unable to report the restraining order violation to which she would have been a witness at a hearing, does not make the rule inapplicable.
Also, no additional inquiry into reliability is necessary under OEC 804 (3) (g) because such evidence may only be admitted if it: (1) is relevant under OEC 401; (2) is more probative than prejudicial under OEC 403; and (3) does not violate Due Process under the Fourteenth Amendment. No additional guarantee is required by either the Oregon or Federal Constitutions because confrontation rights are procedural, guaranteeing only cross-examination. Once the right to cross-examination is forfeited, there remains nothing left of confrontation. State v Supanchik, 354 Or ___ (2014)
