At issuе in this case is whether the admission of a laboratory report at defendant’s criminal trial violated his right “to meet the witnesses face to face” under Article I, section 11, of the Oregon Constitution or his right “to be confronted with the witnesses against him” under the Sixth Amendment to the United States Cоnstitution. Over defendant’s pretrial objection, the trial court, pursuant to ORS 475.235 and this court’s decision in
State v. Hancock,
On December 6, 2002, a Portland Police Officer arrested defendant for driving under the influence of intoxicants (DUII) and, incident to that arrest, searched defendant. In defendant’s right jacket pocket, the officer discovered a glass tube resembling a kind of pipe used to smoke cocaine. The officer seized the pipe and sent it to the Oregon State Police laboratory. A criminalist at the laboratory analyzed the pipe’s contents and returned a written report stating that the pipe contained cocaine residue. The state charged defendant with attempted possession of a controlled substance. 1
Before trial, defendant objected to the admissibility of the criminalist’s laboratory report as hearsay and informed the court and the state that he wished to have the state call the criminalist to testify at trial. In response to the state’s argument that defendant could subpoena the crimin-alist himself, defendant asserted that making his right to confront the state’s witness dependent on his proсuring the state’s witness to testify was unconstitutional. Relying on *627 ORS 475.235 and Hancock, the trial court overruled defendant’s objection. At trial, the state did not call the criminalist or demonstrate that the criminalist was unavailable. The trial court admitted the laboratory report over defendant’s continued objection. The jury convicted defendant of attempted possession of a controlled substance, and he appealed. 2 As noted, the Court of Appeals affirmed defendant’s conviction. 3 The present review proceeding followed.
Central to this case is a statute, ORS 475.235, which provides, in part:
“(4) In all prosecutions in which an analysis of a controlled substance or sample was conducted, a certified copy of the analytical report signed by the director of a state police forensic laboratory or the analyst or forensic scientist conducting the analysis shall be accepted as prima facie evidence of the results of the analytical findings.
“(5) Notwithstanding any statute or rule to the contrary, the defendant may subpoena the analyst or forensic scientist to testify at the preliminary hearing and trial of the issue аt no cost to the defendant.” 4
By its terms, ORS 475.235 allows the admission of a laboratory report containing an analysis of a controlled substance into evidence without requiring the state to call the crimin-alist who prepared the report to testify and allows the defendant tо subpoena the criminalist to testify at no cost to the defendant.
This court considered a challenge to ORS 475.235 in
Hancock
and decided that, on its face, it did not violate the right to confrontation provided by the state and federal constitutions.
5
The court reached its conclusion by interpreting
*628
the statute to require the defendant to notify the state that she wished to exercisе the right to cross-examine the crimin-alist. The court explained that the procedure that the statute contemplated was simply
“a
formalized way of asking a defendant to stipulate to use of the criminalist’s report, rather than requiring that the criminalist be called to establish that particular element of the offense.”
Hancock,
Although Hancock described ORS 475.235 as providing a simple procedure that requires a defendant to notify the state that the state should produce the criminalist for cross-examination, the opinion also included a sentence stating that the statute requires a defendant to ensure the attendance of the criminalist: “[i]f a defendant wants to cross-examine the criminalist, he or she must subpoena the crimin-alist.” Id. at 12. The court in Hancock did not consider the distinction between requiring a defendant to give notice to the state that the state should procure a witness for trial and obliging the defendant to subpoena the state’s witness. Instead, the court essentially equated the notice and subpoena concepts, making the decision to uphold the facial validity of the statute much easier. In the present case, by contrast, we must directly confront the question whether the constitutional right to meet a witness face to face is violated where a defendant gives notice, but then fails to issue a subpoena.
Defendant argues that requiring him to secure the attendance of a witness against himself to cross-examine
*629
that witness violates his state and federal rights to confrontation. Defendant requests that this court re-examine the ruling in
Hancock
under the light shone by this court’s decision in
State v. Moore,
We turn first to Article I, section 11, of the Oregon Constitution and this court’s decision in
Moore.
6
In that case, the state called a pоlice officer to testify to statements that the victim had made to him. The defendant objected on the grounds that the victim’s statements were hearsay and that the victim was not present to testify. The state conceded that it had not made a good-faith effort to produce the victim for trial or to demonstrate that she was unavailable to testify. The state argued, however, that it was not required to make that showing.
Moore,
After a thorough discussion of the historical purpose and values embodied in the confrontation right, this court reaffirmed the unavailability requirement for purpоses of Article I, section 11.
Moore,
“Before the state may introduce into evidence a witness’s out-of-court declarations against a criminal defendаnt, the state must produce the witness at trial or demonstrate that the witness is unavailable to testify.”
Although
Moore
did not expressly overrule
Hancock,
the two cases are at odds. The statement in
Hancock
that a defendant “must” subpoena the criminalist to exercise the right of confrontation places the legal responsibility to produce the declarant on the defendаnt.
Moore,
by contrast, places that responsibility on the state.
As discussed above, the court reached its result in
Hancock
by casting the procedure that ORS 475.235 requires as a notice requirement. The court likened that notice requirement to requirements that a defendant disclose the names and addresses of witnesses, reports of experts, and documents that the defendant wishes to introduce at trial, or the requirement to give notice of an alibi defense.
Hancock,
A notice requirement also imposes a different practical burden on a defendant than does a subpoena requirement. For instance, the statutory requirements that a defendant disclose witnesses or defenses each call for a one-time notice to the district attorney. ORS 135.835; ORS 135.455. Similarly, to comply with a requirement to notify the state that the state should produce the сriminalist for trial, a defendant is required to take only one step — that is, sending or giving notice to one known person, opposing counsel, who is easy to locate. However, to subpoena the criminalist, who is or was at one time an employee of the state, the defendant is *631 required to learn the criminalist’s identity and location, issue the subpoena, and then take additional time-consuming steps to ensure service and attendance at trial. Moreover, the criminalist, in all likelihood, could be an adverse witness with no incentive to cooperate in that process.
A statutory requirement that a defendant notify the state that the defendant will insist on the right to cross-examine the state’s witness cannot be equated, as suggested in
Hancock,
with a requirement that a defendant undertake and fulfill the state’s obligation to secure the attendance of a state’s witness at trial. To the extent that
Hancock
holds to the contrary, it was wrongly decided and should no longer be relied upon.
See Stranahan v. Fred Meyer,
Inc.,
A subpoena requirement and the burden that it imposes are different both in kind and degree from a typical notice requirement. When a subpoena is required, a defendant is not merely offered an opportunity to choose whether to stipulate to the admission of paper evidence; rather, the defendant is forced to secure the attendance of the witness who is the proponent of that evidence. Viewing the issue presented in light of Moore, it is clear that the transfer of legal responsibility to secure the attendance of the declarant from the state to the defendant cannot withstand constitutional scrutiny. The right to meet an opposing witness face to face cannot be transformed into a duty to procure that opposing witness for trial. It is the state that seeks to adduce the evidence as to which the criminalist will testify. The defendant has a constitutional right to confront the proponent of that evidence, the criminalist. The legislature may require the defendant to assert that right or to design a procedure to determine whether the defendant agrees that a written report will suffice. But, to require thаt a defendant do more changes the right to insist that the state present evidence the “old-fashioned way” into an obligation to procure a witness for the state.
We hold that the trial court’s admission of the laboratory report without requiring the state to produce at trial the criminalist who prepared the report or to demonstrate *632 that the criminalist was unavailable to testify violated defendant’s right to confront the witness against him under Article I, section 11, of the Oregon Constitution. We need not reach the question of whether the admission of the laboratory report also violated the federal Confrontation Clause. 7
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
Notes
The state аlso charged defendant with driving under the influence of intoxicants (DUII), reckless driving, and failure to appear on a criminal citation.
The jury also convicted defendant of failure to appear on a criminal citation, but found him not guilty of DUII and reckless driving.
On appeal, dеfendant did not challenge his conviction for failure to appear on a criminal citation.
Although ORS 475.235 has been amended several times since its enactment, the operative text of the statute at issue here has remained substantively unchanged. For that reason, we discuss the current version of the statute.
Article I, section 11, of the Oregon Constitution provides, in part:
“In all criminal prosecutions, the accused shall have the right * * * to meet the witnesses face to facef.]”
*628 The Sixth Amendment to the United States Constitution provides, in part:
“In all criminаl prosecutions, the accused shall enjoy the right * * :i! to be confronted with the witnesses against him[J”
We consider and dispose of all questions of state law before reaching a claim that this state’s law falls short of a standard imposed by the federal constitution.
State v. Kennedy,
Defendant аlso challenged the constitutionality of ORS 475.235 on the ground that the requirement that the court accept the laboratory report as prima facie evidence of the results of the analytical findings impermissibly shifts the burden of proof to a criminal defendant, in violation of the right to due process. Because we resolve this case on confrontation grounds, we do not reach that argument.