Oregon v. Harris

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In this case, the state issued a subpoena for a witness against defendant Kenneth Harris, and the witness did not appear for trial. The state then offered hearsay evidence in lieu of live testimony, arguing that the witness’s failure to appear in response to the subpoena sufficed to establish her unavailability. Defendant argued that a witness is unavailable for confrontation purposes only when the state has exhausted all reasonable means of securing the appearance of the witness. Once the state became aware that its witness would not appear, he argued, it could have taken any number of additional actions to secure her appearance, but did not do so. The trial court offered to continue the trial to allow the state to take such additional steps, but defendant objected. The trial court then concluded that the state had made reasonable efforts to produce the witness and admitted the hearsay. The Court of Appeals reversed, holding that “more could have been done” to produce the witness at trial. The Oregon Supreme Court did not decide whether the state reasonably should have pursued those other measures. Defendant did not explain, and the Supreme Court did not understand, “how the state can be faulted for failing to obtain a continuance to pursue other means of producing the witness when defendant objected to the state being allowed to do just that.” The Court surmised: by objecting to the state being allowed to take further measures to produce its witness, defendant essentially invited any error that may have resulted, and invited error is no basis for reversal. The Supreme Court rejected the state’s contention that the unavailability requirement of Article I, section 11, was satisfied when a witness fails to comply with a subpoena. The state must exhaust reasonably available measures for producing the witness. In so holding, however, the Court reiterated that the rule was one of reasonableness under the circumstances of the individual case. Under the circumstances here, defendant was in no position to complain that the trial court erred in concluding that the victim was unavailable for confrontation purposes and in admitting the 9-1-1 recording of her report. The decision of the Court of Appeals was reversed. View "Oregon v. Harris" on Justia Law