the Oregon Constitution, Hearsay and Unavailability
by: Ryan • January 29, 2011 • no comments
Update 3/17/2011: Our own Court of Appeals issued an excellent opinion on what is required for the state to prove unavailability.
Prior to Crawford v. Washington, which is the seminal case on federal confrontation clause guarantees, Oregon defense attorneys who sought to exclude hearsay statements of the complaining witness focused on the Oregon Constitution. Specifically, they relied on the Oregon Constitution requirement that, prior to admission of the hearsay statement, the declarant must be declared unavailable. State v. Moore.
Because Crawford was - in most cases - a far more effective tool for excluding the statements, reliance on Moore went by the wayside. In fact, it would not surprise me if new attorneys - defined in this case as joining the bar after 2004 - were not familiar with Moore at all, for the same reason they've never dialed a rotary phone.
But Crawford only applies to testimonial hearsay, and therefore there are situations - some 911 calls for example - where it offers no help to the defense attorney. But Moore would still apply to non-testimonial hearsay, and Moore would require a showing that the declarant was unavailable.
How is such a showing made? Sometimes it's easy. A dead or incompetent witness is unavailable. A witness who has asserted 5th Amendment privileges is unavailable. But what about someone who has simply ignored a subpoena? Or someone who hasn't answer the phone when the police or prosecutor call?
If you have this situation, you may want to read a petition for cert that was filed by Professor Richard Friedman, the Confrontation Yoda to Jeff Fisher's Obi-Wan Kenobi. While it deals with the meaning of "unavailability" under the federal constitution, I would expect most of it would translate pretty well to an analysis under the Oregon Constitution.
