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National Crime Victim Law Institute

State v. Iseli, 458 P.3d 653 (Or. 2020) (en banc)

May 21, 2020

Defendant assaulted the victim over the course of hours, also making specific threats to kill her personally or by enlisting the help of members of defendant’s motorcycle gang. The victim did not appear for trial, despite being subpoenaed, and a detective unsuccessfully tried to locate the victim. The state sought to have the victim declared unavailable and admit her out-of-court statements pursuant to the forfeiture by wrongdoing hearsay exception. The trial court suggested that the state should seek a material witness warrant, which the state declined to do, because in its view—in light of defendant’s conduct and the victim’s safety concerns—it was not required to do so in order for the court to find the victim unavailable. The trial court found that although the state had undertaken “substantial” efforts to secure the victim’s attendance, the state had not established that it had been “unable to procure” her attendance “by process or other means.” The state appealed, and the court of appeals reversed and remanded. Defendant subsequently appealed. The Oregon Supreme Court held that the state did not establish that the victim was “unavailable as a witness” as required under Oregon law, reversed the court of appeals’ decision and affirmed the trial court’s decision. The court analyzed the text, context and legislative history of the state evidentiary provision governing witness unavailability. In relation to assessing what “other reasonable means” should be pursued to procure attendance of a witness, the court concluded that: (1) although a subpoena must be served to satisfy “process, … [it] does not require pursuit of more intrusive forms of process for enforcement purposes in every case”; (2) “merely showing ‘process’ via service of a subpoena may not necessarily satisfy the legislature’s intended criteria for establishing a nonattending declarant’s unavailability”; (3) “the totality of the circumstances guides the extent to which any other means—in the form of more intrusive process beyond service of a subpoena, or other efforts not in the nature of ‘process’—would have been reasonable for a proponent to pursue”; and (4) “the totality of the circumstances also extends to facts pertaining to the declarant’s reluctance or nonattendance, including the extent to which wrongful conduct by another may have caused the nonattendance.” Applying the analysis to this case, the court concluded that the record supported the trial court’s “extensive findings” and that the trial court “appropriately weighed and considered” facts when assessing what “other reasonable means” were required to procure the victim’s attendance at trial. The court found that “the trial court considered many facts that weighed in the state’s favor, including its ‘substantial’ efforts to procure the victim’s attendance[,]” but that “it also found that the victim had a history of not cooperating, not attending court even when subpoenaed, and making last-minute decisions regarding attendance.” The court noted that “[t]hose facts reflected a pronounced likelihood that she would not attend trial[,]” and that because “the prosecutor had been in personal contact with the victim the night before trial, and so knew her to be in the area, and also knew her home and work locations[,]” there was “an increased likelihood that a more intrusive means of process would succeed in procuring her attendance.” The court also pointed to the “high stakes” in the case, which involved “serious felony charges against a criminal defendant that, upon conviction, would result in lengthy sentences[,]” and that the “victim’s testimony was critical to a criminal prosecution[.]” Although the court acknowledged the victim’s fear and safety concerns, and found that consideration of these issues was relevant, it concluded those did not overcome the facts that “required the state to intensify its efforts to secure the victim’s attendance.” The court held that the trial court correctly found that the state did not establish that the victim was “unavailable” and that her earlier hearsay statements were not admissible under the forfeiture by wrongdoing exception.