State v. Harris

The confrontation clause of Article I, section 11 of the Oregon Constitution requires that the State exhaust all “reasonably available means for producing a witness." A witness's failure to appear after delivery of a valid subpoena is insufficient, without more, to declare unavailability of a witness. However, a defendant cannot appeal the result of an error he caused. State v. Koennicke, 274 Or 169, 173-74 (1976); Valdin v. Holteen and Nordstrom, 199 Or 134, 152 (1953).

The State appealed the Court of Appeals’ decision based on its finding that the State “failed to make a reasonable good-faith effort to secure the witness’s presence at trial.” The State assigned error to the Court of Appeals’ determination that requires the State to show more than the service of an enforceable subpoena to demonstrate the unavailability of a witness. On appeal, the State argued that the obligation to make “reasonable, good-faith efforts to obtain in-person trial testimony” was satisfied when the witness failed to appear after the State served her with an enforceable subpoena. In response, Defendant argued that unavailability of a witness is determined only after the State “has exhausted every reasonable means” of procuring her appearance. The unavailability requirement of Article I, section 11 of the Oregon Constitution requires that the State exhaust all “reasonably available means for producing a witness,” and case law supports the finding that failure to appear after delivery of a valid subpoena is insufficient to declare unavailability of a witness. However, a defendant cannot appeal the result of an error he caused. State v. Koennicke, 274 Or 169, 173-74 (1976); Valdin v. Holteen and Nordstrom, 199 Or 134, 152 (1953). The Oregon Supreme Court held that the trial court did not err in its determination that the witness was unavailable for confrontation purposes because Defendant’s objection to a continuance to allow the State to exhaust its “reasonably available means” to produce the witness inevitably rendered the witness unavailable. The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.