State v. Iseli

“A declarant’s hearsay statements are admissible against a party ‘who engaged in, directed or otherwise participated in wrongful conduct that was intended to cause the declarant to be unavailable as a witness, and did cause the declarant to be unavailable.’” OEC 804(3)(g); see State v. Supanchick, 354 Or 737, 766, 323 P3d 231 (2014).

The state appealed the trial court’s denial of its motion in limine to admit the victim’s out-of-court statements under the forfeiture-by-wrongdoing exception to the hearsay rule, OEC 804(3)(g). The state argued that where the court found that Defendant’s wrongful conduct caused the victim not to appear at trial, that circumstance is important in determining what efforts on behalf of the state are reasonable. In response, Defendant argued that the trial court’s finding that his wrongful acts caused the victim not to appear for trial is unsupported by evidence in the record. “A declarant’s hearsay statements are admissible against a party ‘who engaged in, directed or otherwise participated in wrongful conduct that was intended to cause the declarant to be unavailable as a witness, and did cause the declarant to be unavailable.’” OEC 804(3)(g); see State v. Supanchick, 354 Or 737, 766, 323 P3d 231 (2014). The Court found that the state exhausted all means of producing the victim at trial that were reasonable under the circumstances and that the victim, therefore, was “unavailable” as that term is used in OEC 804. Thus, the Court held that where a defendant, by wrongful conduct  intentionally caused the victim's absence from trial, and that the State "exhausted all reasonable measures for securing the victim’s attendance at trial when it did everything that [it] possibly could short of seeking a warrant for her arrest." Reversed and remanded.