State v. Ceccoi

"[A] proponent may still 'need to establish "unavailability" by showing pursuit of "other reasonable means."' . . . In determining what, if any, further efforts are required, the totality of the circumstances" applies. State v. Iseli, 366 Or 151, 173 (2020)(quoting OEC 804(1)(e)).

Defendant entered a conditional guilty plea to charges of felony assault, harassment, and criminal mischief. The trial court allowed the State to introduce hearsay evidence. The trial court revoked Defendant’s probation in two separate cases based on these new criminal convictions. On appeal, Defendant assigned error to the trial court’s admission of hearsay under OEC 804(3)(a) and OEC 804(3)(g). Defendant argued that the declarant was not unavailable as required by either exception to the hearsay rule. Defendant argues, in the alternative, that even if the declarant was unavailable, the forfeiture-by-wrongdoing does not apply because the Defendant did not forgo his right to witness presence. "[A] proponent may still 'need to establish "unavailability" by showing pursuit of "other reasonable means."' . . . In determining what, if any, further efforts are required, the totality of the circumstances" applies. State v. Iseli, 366 Or 151, 173 (2020)(quoting OEC 804(1)(e)). The Court held that the trial court erred in their determination that the declarant was unavailable for purposes of OEC 804. The Court reasoned that, had the State taken further steps, they could have persuaded the declarant to attend the hearing. Thus the Court further held that the State should have sought a continuance because the declarant’s testimony was crucial to the prosecution and the Defendant has significant due process interests in the continuance. Reversed.