State v. Weaver, 472 P.3d 717

Background

Defendant Weaver was tried for murder after codefendant Michael Orren pleaded guilty under an agreement that (1) barred Orren from testifying or "cooperating in any way" for codefendants and (2) permitted the state to seek death or life without parole if Orren breached the agreement.
Weaver attempted to call Orren at trial; Orren invoked the Fifth Amendment and Weaver sought to introduce Orren’s plea agreement into evidence; the trial court repeatedly excluded the agreement and barred Orren from testifying.
The state argued exclusion under OEC 513 and OEC 403 and denied suppressing exculpatory evidence; Weaver argued the agreement interfered with his right to compulsory process and therefore was unconstitutional.
A jury convicted Weaver on murder and related counts; the Court of Appeals affirmed. Weaver petitioned for review to the Oregon Supreme Court.
The Oregon Supreme Court held that the state’s plea agreement unconstitutionally interfered with Weaver’s Article I, §11 compulsory process right, that the trial court failed to remedy the violation, the error was not harmless, and exclusion under OEC 513 was incorrect.

Issues

Issue	Weaver's Argument	State's Argument	Held
Preservation	Weaver repeatedly raised that the plea agreement denied him a fair trial and sought admission of the agreement; preserved constitutional claim	Weaver never invoked the compulsory process clause by name and focused on evidentiary issues; failed to preserve	Preserved: Weaver sufficiently alerted court and state to the constitutional claim and sought remedies; preserved for appeal
Compulsory process (Art I, §11)	The plea agreement coerced Orren to invoke privilege and prevented Weaver from presenting exculpatory testimony, violating compulsory process	Such agreements are not per se invalid; Weaver must show additional prerequisites (would have testified, testimony exculpatory, likely changed outcome)	Violation: Agreement that forbade truthful testimony and cooperation interfered with Weaver’s Article I, §11 right; no additional showing of materiality or causation required here
Harmless error	Admission of the plea agreement (or other remedy) was necessary; exclusion likely affected jury assessment of credibility	Evidence against Weaver (accomplice testimony, phone records) made error harmless	Not harmless: Excluding the agreement likely influenced the verdict; convictions reversed
OEC 513 exclusion	The plea agreement is probative to show state interference and should be admissible; inference is drawn from the state’s action, not from a witness’ claim of privilege	OEC 513 bars comment on or jury knowledge of claims of privilege and thus excludes the agreement	OEC 513 does not bar admission here: inference is from the state’s conduct, not a forbidden comment on a privilege; OEC 513(2) (avoid jury knowledge) is limited by "to the extent practicable" and does not justify wholesale exclusion

Key Cases Cited

State v. Barone, 329 Or. 210 (Or. 1999) (discusses whether a convicted codefendant retains Fifth Amendment privilege after plea)
State v. Mai, 294 Or. 269 (Or. 1982) (Article I, §11 protects both subpoena power and the testimony of witnesses; exclusions must be narrowly tailored)
United States v. Valenzuela-Bernal, 458 U.S. 858 (U.S. 1982) (federal case requiring a showing that deported/witness evidence would have been material and favorable in certain contexts)
Webb v. Texas, 409 U.S. 95 (U.S. 1972) (government or court conduct that coerces a witness’ refusal to testify can violate constitutional rights)
United States v. Henricksen, 564 F.2d 197 (5th Cir. 1977) (plea agreement forbidding codefendant testimony found to violate due process)
State v. Elliott, 276 Or. 99 (Or. 1976) (balancing public interests against defendant’s right to evidence; permissive, contextual approach)
Griffin v. California, 380 U.S. 609 (U.S. 1965) (prohibits comment on defendant’s silence; foundation for evidence-rule provisions limiting adverse inferences)
Lakeside v. Oregon, 435 U.S. 333 (U.S. 1978) (clarifies that admonitory instructions about silence are not necessarily forbidden as "comments")