State v. Iseli

Under OEC 804(1)(e), a witness is unavailable in situations where the declarant "is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance by process or other reasonable means."

Defendant petitioned for review of the Court of Appeals' decision to allow admission of the unavailable victim's statements.  Defendant assigned error to the Court's determination that the State had exhausted all means of producing the victim at trial and therefore was unavailable under OEC 804(1)(e).  Defendant argued that the trial court correctly ruled that the State had not established "unavailability" as a matter of law because it had not established the means used to procure the unavailable victim. In response, the State argued that it sufficiently established its inability to procure attendance by the victim by process or other reasonable means.  Under OEC 804(1)(e), a witness is unavailable in situations where the declarant "is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance by process or other reasonable means."  The Court found that the trial court did not err when establishing that State failed to show the victim was "unavailable as a witness." Therefore, the court held that the victim's statements were hearsay and not admissible under OEC 804(3)(g) because analysis of "unavailability" requires addressing "process" and "other reasonable means" collectively and based on what a proponent would reasonably pursue.  The decision of the Court of Appeals is reversed in part.  The order of the circuit court is affirmed.