State v. Harris

“The unavailability exception to the confrontation guarantee should not be “granted routinely” and applies only when a witness is “truly unavailable to testify” so that the state’s reliance on prior out-of-court statements is “genuinely necessary.”” State v. Herrera, 286 Or 349, 355 (1979).

Defendant appealed his judgment of conviction for fourth-degree assault constituting domestic violence. Defendant assigned error to the trial court’s decision to admit out-of-court statements of a non-testifying complainant without proof of unavailability, which would be a violation of the confrontation clause. The State argued that the defendant did not preserve his constitutional confrontation argument, that any error is not plain and even if the error was plain, the court should not use its discretion to review it. “The unavailability exception to the confrontation guarantee should not be “granted routinely” and applies only when a witness is “truly unavailable to testify” so that the state’s reliance on prior out-of-court statements is “genuinely necessary.””  State v. Herrera, 286 Or 349, 355 (1979). The Court found that the Defendant accurately preserved his confrontation argument because defense counsel promptly objected to the introduction of witness testimony. Additionally, the Court found that the record did not support a showing that the State exhausted all its reasonably available options in obtaining the witness. Reversed and remanded.