STATE OF OREGON, Respondent on Review, v. TYKE THOMAS SUPANCHICK, Petitioner on Review.
CC 200525537; CA A139011; SC S060017
In the Supreme Court of the State of Oregon
Argued and submitted November 6, 2012; resubmitted January 7, 2013, decision of Court of Appeals and judgment of circuit court affirmed February 13, 2014
323 P.3d 231
KISTLER, J.
Michael A. Casper, Deputy Solicitor General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters, Linder, Brewer, and Baldwin, Justices.**
KISTLER, J.
KISTLER, J.
In 2005, the Oregon legislature added a new exception to the prohibition against the admission of hearsay evidence. Or Laws 2005, ch 458, § 1; see
I
The state charged defendant with aggravated murder for killing his wife. The evidence showed that defendant and his wife were estranged and that, shortly before her death, his wife had obtained a restraining order against defendant based on allegations that defendant had physically and emotionally abused her.2 One week after the trial court issued the restraining order, defendant filed for divorce.
Approximately one month after defendant‘s wife had obtained the restraining order and three weeks after defendant had filed for divorce, defendant devised a plan to persuade his wife to recant the allegations against him, give him custody of their daughter, and leave the state. Defendant believed that his wife had no real interest in their daughter, had been indifferent to their daughter‘s safety, and “just want[ed] to have money and go party[.]” Defendant also believed that, if he offered his wife some money, he could persuade her to accept his offer—namely, to recant the allegations, give him custody of their daughter, and leave Oregon. One problem, from defendant‘s perspective, was how to speak to his wife without her calling 9-1-1 and reporting that he was violating the restraining order.
At 11:00 p.m. one night, defendant took a loaded shotgun, duct tape, and a knife to his wife‘s house. He opened the door and went up to her bedroom, where she was reading a book in bed. He walked in carrying the shotgun, told her that “we‘re going to talk about this[, a]nd then [he] put the tape on her mouth so she wouldn‘t scream and *** taped her arms.” When asked whether he had pointed the shotgun at her, defendant replied, “Didn‘t need to.”
As defendant later explained, his plan was to “go through the door real quick [and] subdue her to the point where *** she‘s not a threat” to call 9-1-1 and report his violation of the restraining order.3 Defendant believed that, if he had a chance to talk with his wife before she could call 9-1-1, he would be able to persuade her, relatively quickly, to accept to his offer. Going in, defendant believed that the whole operation could be accomplished in “[a]n hour, tops.”
Things did not go according to plan. His wife would not agree to give defendant custody of their daughter, nor would she agree to leave the state. The discussion that defendant had anticipated would be accomplished quickly turned into a four-hour “talk.” As defendant explained, “we started talking way too much.” He still believed, however, that they “were getting stuff out” and having a meaningful conversation. He explained:
“She wasn‘t gonna—she wasn‘t gonna leave, but we were making headway as far as her saying, Yeah, a lot of stuff [she was] doing isn‘t fair, and you—you know, [she] do[es] need to give [me my] money [back]. [She] shouldn‘t be keeping this money [that, in defendant‘s view, his wife had wrongfully taken from him].”
One issue that arose was how, once defendant knew that his wife would not agree to all his terms, he could keep her from reporting that he had violated the restraining order. Defendant explained that he thought that they would be able to find a middle ground; he would leave, she would “just *** drop it,” and “she will find something
After defendant had been at his wife‘s house for several hours, his mother called him on his wife‘s cell phone, but he did not answer. He also saw his sister‘s husband outside the house, but he did not go out to talk to him. Defendant explained that he “wasn‘t there to talk to them. I was—we [defendant and his wife] were having a good conversation.” He believed that he was “getting through to [his wife] that she was really not helping [their daughter] right now.” Then, defendant heard “heavy” knocking and people announcing that they were police officers. They asked his wife to come to the door, but she shouted, “I can‘t. I can‘t come to the door.” At that point, defendant heard “the noise, this noise.” As the officers kicked open the door of his wife‘s house, defendant picked up the shotgun, put a round in the chamber, and shot his wife.
When the officers spoke with defendant afterwards, they asked him two separate but related questions. The first question was why he had not let his wife leave once the officers got there. The second was why he had shot her. In answering the first question, defendant explained, “[b]ecause there had to be a way, a better option than [letting her walk out]. A better option because now I‘m gonna go to jail for whatever, for being—violating parole [sic] and having a gun there.” He added that he was not “sitting there weighing it. It was like, you know, there‘s got to be a better way to fix this or a better way to go—for—I don‘t know. Better way for my daughter to be safe and [for me] not [to] go to jail.” When asked whether “shooting her [was] that better way,” defendant answered, “I wasn‘t saying that at all.”
When asked why he shot his wife, defendant initially either did not or could not accept the possibility that he had shot her. Later, he acknowledged that, because no one else was in the house, he must have killed her. Defendant then told the officers that, when he heard “this noise,” he “did a failure drill.” As defendant explained, a failure drill is appropriate when you have “no chance of the—whatever, you know, what—your target is coming at you.” He added that “[i]t‘s the most successful way of stopping whatever‘s coming at you.” Having explained that a failure drill is intended to stop the “target *** coming at you,” defendant could not explain why he shot his wife rather than the officers coming through the door.
In ruling on the admissibility of statements that defendant‘s wife had made in applying for a restraining order and also notes that she had made for that purpose, the trial court explained that
“I think that the evidence so far suggests by a preponderance that that was a purpose. *** I think that‘s very confusing as you read—as you read the transcript and listen to the defendant‘s confession. *** But I am satisfied that at least by a preponderance that was a reason for the—for the homicide and I think that that satisfies the requirement under [OEC] 804(3)(g). I don‘t think that that rule requires that it be the primary purpose. I think that it has to be a purpose, and I think that in all probability it is.”
The court also reasoned that, although
Having concluded that the wife‘s statements were admissible under
II
The issues on which defendant focuses on review all arise out of the trial court‘s ruling admitting his wife‘s hearsay statements. Defendant argues that the evidence was insufficient to establish the mental state necessary to invoke
A
Defendant‘s sufficiency argument may turn on one of two propositions. Defendant may be arguing that the evidence is insufficient to support the finding that the trial court actually made (that a purpose in killing his wife was to eliminate her as a witness). Alternatively, defendant‘s argument may turn on the proposition that the evidence does not support the finding that, in his view, the trial court should have made. Specifically, his argument appears to assume that
1
For the wife‘s hearsay statements to be admissible under
As the trial court implicitly recognized, the evidence permitted a finding that defendant had more than one purpose in killing his wife. For example, the evidence permitted a finding that defendant killed his wife to prevent her from retaining custody of their daughter; that is, he believed that, while he had been away in the military, his wife had neglected their daughter and endangered her safety. His wife would not agree to give up custody of their daughter, and the trial court could have found that defendant killed his wife to ensure that their daughter would not remain in her care.
There was also evidence to support the trial court‘s finding that one purpose in killing his wife was to make her unavailable as a witness. When the officers spoke with defendant shortly after he killed his wife, he told them that, when he first entered his wife‘s home, he had taken elaborate steps to prevent her from calling 9-1-1 and reporting that he was violating the restraining order. He had confronted her with a shotgun, bound her hands, and put tape over her mouth. Moreover, he believed that he could persuade his wife, in return for giving her money, to recant the allegations against him, give him custody of their daughter, and leave the state.
Defendant told the officers that, when it became clear that his wife would not agree to all the terms of his offer, he still thought that they could reach a compromise where he could give her something and she would “just *** drop it“—namely, his violation of the restraining order. He was clear, however, that he would not let his wife leave, even if she had asked to do so, until he had a “hard copy agreement.” The trial court reasonably could find that defendant feared that, if his wife left without having signed a “hard copy agreement,” she would report his violation of the restraining order, he would go to prison for having violated the order, and his wife would retain custody of their daughter.
Even after the police arrived and were asking defendant to let his wife go, defendant explained that he continued to think that there had to be a better option than letting his wife walk out of the house. To his mind, if he let her walk out, “I‘m gonna go to jail for whatever, for being—violating parole [sic] and having a gun there.” As he explained, there had to be a “[b]etter way for my daughter to be safe and [for me] not [to] go to jail.” One constant theme that ran through defendant‘s confession was his concern that, without an agreement, his wife would report his violation of the restraining order, he would go to jail as a result, and his daughter would not be safe. Given that evidence, the trial court permissibly found that one reason why defendant killed his wife was to prevent her from reporting what he had done.
To be sure, it would not have taken a great deal of reflection for defendant to realize that the consequences of killing his wife were far graver than the consequences of violating the restraining order. But defendant acted in a split second as the officers kicked open the door to his wife‘s home, and the trial court reasonably could have found that the forces that drive a person‘s actions are not always the most rational ones. Moreover, as the trial court implicitly found, eliminating his wife as a witness was not defendant‘s sole purpose in killing her, and we cannot say that the evidence does not support the trial court‘s factual finding that it was one reason for shooting her. Put simply, there is evidence in the record to support the trial court‘s factual finding that one reason defendant killed his wife was to eliminate her as a witness. See Cunningham, 337 Or at 538-39 (stating the standard of review for predicate factual findings regarding
2
As noted, defendant‘s sufficiency argument may rest alternatively on a series of unexplained assumptions. His argument appears to assume that, for his wife‘s statements to be admissible under
Defendant‘s argument assumes initially that
Were there any doubt about the matter, the context resolves it. The legislature enacted
Not only did the Court define “witness” broadly in Crawford, but it also recognized that forfeiture by wrongdoing is one of a limited set of exceptions to the Sixth Amendment confrontation right. See id. at 62 (explaining that “the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds“). As noted, the Oregon legislature enacted
In this case, the trial court could have found that defendant killed his wife to keep her from reporting his violation of the restraining order to the officers—i.e., to keep her from being a “witness” as Crawford used that term. Moreover, defendant stated that, if he had let his wife walk out when the police arrived, he faced the prospect that he would go to prison and his wife would retain custody of their daughter. Given that statement, the trial court reasonably could have found that defendant killed his wife to keep her from testifying in a future contempt proceeding for violating the restraining order and in
Defendant‘s sufficiency argument also rests on the proposition that the trial court had to find that he killed his wife as part of a “plan” or “design” to make her unavailable as a witness. To the extent that defendant uses those terms as synonyms for “intent,” his argument adds little. The text of the rule requires proof of a specific intent—that defendant “intended” to make his wife unavailable as a witness—and that intent is synonymous with defendant‘s purpose in killing her. To the extent, however, that defendant means that the trial court had to find that he had a preconceived plan formed before he entered his wife‘s home, he identifies nothing in the text, context, or history of
Finally, defendant suggests that his wife‘s statements were admissible under
Defendant appears to base his contrary argument on a 2012 Texas Court of Appeals case applying Giles. See Bibbs v. State, 371 SW3d 564, 569-70 (Tex Crim App 2012) (stating, without explanation, that a “closer reading” of Giles showed that the doctrine of forfeiture by wrongdoing did not apply because the defendant in Bibbs had engaged in wrongdoing for two equally likely purposes, one of which was to make the declarant unavailable as a witness). Not only did the Texas Court of Appeals not identify what in Giles led it to that conclusion, but its reasoning is difficult to reconcile with what Giles actually said.
The Court was careful to explain in Giles that forfeiture by wrongdoing applies in domestic violence cases because “[a]cts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions.” 554 US at 377. The Court added:
“Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution—rendering her prior statements admissible under the forfeiture doctrine.”
Id. Acts of domestic violence that culminate in murder can reflect a complex of motives; limiting forfeiture by wrongdoing to those instances in which the defendant‘s primary motive or purpose was to make the declarant unavailable would undercut the majority‘s explanation of the ways in which the forfeiture doctrine will apply in domestic violence cases.
B
Defendant raises a different reason why, in his view, his wife‘s hearsay statements were not admissible under
Not only does the text of
Finally, the legislative history of
Defendant notes, however, that legislators referred to the proposed rule as the “common-law” rule of forfeiture. Defendant reasons that, because the common law admitted only reliable evidence under the forfeiture
III
Under Article I, section 11, of the Oregon Constitution, “the accused shall have the right *** to meet the witnesses face to face ***” in all criminal prosecutions. Under that provision, out-of-court statements made by a declarant who does not testify at trial are, as a general rule, admissible only if (1) the declarant is unavailable and (2) the statements have adequate indicia of reliability. State v. Campbell, 299 Or 633, 648, 705 P2d 694 (1985) (adopting the test from Ohio v. Roberts, 448 US 56, 66, 100 S Ct 2531, 65 L Ed 2d 597 (1980)); but cf. State v. Copeland, 353 Or 816, 306 P3d 610 (2013) (reasoning that some out-of-court statements are not “witness statements” and do not require that the declarant be unavailable to satisfy Article I, section 11).12 A statement that falls within a “firmly rooted hearsay exception” or has “particularized guarantees of trustworthiness” is considered “reliable” under Campbell and State v. Nielsen, 316 Or 611, 623, 853 P2d 256 (1993).13
In this case, the trial court ruled that admitting the wife‘s hearsay statements posed no constitutional problem, apparently on the strength of Crawford‘s recognition that forfeiture by wrongdoing is an exception to the federal confrontation right. The Court of Appeals upheld that ruling on an additional ground. Noting that the origins of the doctrine of forfeiture by wrongdoing date to the seventeenth century, the court concluded that that doctrine was a “firmly rooted” exception by virtue of that history. Supanchick, 245 Or App at 660-61. Accordingly, admitting statements under
Defendant argues that forfeiture by wrongdoing is not a “firmly rooted hearsay exception,” as Campbell used that phrase; he reasons that it is not a hearsay exception at all but an equitable principle applied without regard to the evidence‘s inherent reliability. Further, defendant contends that, if this court recognizes forfeiture by wrongdoing as an exception to the state confrontation clause, the rule must retain the features it had at common law. In defendant‘s view, at common law, certain procedural requirements, unrelated to the forfeiture doctrine itself, ensured that statements admitted under the forfeiture doctrine would be reliable. It follows, defendant argues, that Article I, section 11, requires similar guarantees of reliability before statements can be admitted under the doctrine of forfeiture by wrongdoing. Finally, defendant argues that parties cannot relinquish their state confrontation rights unless they knowingly and intelligently waive them.
The state responds that deciding whether forfeiture by wrongdoing satisfies Campbell is unnecessary because forfeiture is an equitable principle necessary to protect the integrity
A
As a starting point, we agree with the parties that forfeiture by wrongdoing has roots in equity, not reliability. See Crawford, 541 US at 62 (“[t]he rule of forfeiture by wrongdoing *** extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability“). Accordingly, the rule differs significantly from other hearsay exceptions that admit categories of hearsay evidence because they are considered inherently reliable.14 For that reason, forfeiture by wrongdoing is not a “firmly-rooted hearsay exception,” as the court used that phrase in Campbell.
That does not end the matter, however. The state does not contend that forfeiture is a firmly rooted hearsay exception that satisfies Campbell. Rather, the state argues that forfeiture by wrongdoing historically has foreclosed confrontation claims on equitable grounds and that that history informs the meaning of Article I, section 11. To put the parties’ arguments in perspective, we first consider the history of the forfeiture doctrine that preceded the adoption of Article I, section 11, in 1857. We then turn to what that history reveals about the meaning of Article I, section 11. See State v. Reinke, 354 Or 98, 106, 309 P3d 1059 (2013), adh‘d to as modified, 354 Or 570, 316 P3d 286 (2013) (looking to the cases that preceded the adoption of constitutional provisions to determine the meaning of those provisions).
1
Forfeiture by wrongdoing arose from evidentiary procedures in seventeenth-century English felony cases. Those procedures developed out of the so-called “Marian statutes,” which required magistrates to interview witnesses in felony cases before deciding whether to commit a suspect to jail or to release the suspect on bail. 1 & 2 Phil & M, c 13, § 1 (1554-55); 2 & 3 Phil & M, c 10 (1556). Among other things, the Marian statutes required that justices of the peace—and later coroners—make available to the court a record of their hearings. Id. It appears that witnesses at Marian proceedings were required to testify under oath. See Thomas Y. Davies, Selective Originalism, 13 Lewis & Clark L Rev 605, 619 (2009).15 Moreover, suspects probably would have had an opportunity to cross-examine witnesses at committal hearings, but that opportunity was less likely to have been available at coroners’ inquests. Robert Kry, Forfeiture and Cross-Examination, 13 Lewis & Clark L Rev 577, 583-84 (2009); see Robert Kry, Confrontation under the Marian Statutes, 72 Brook L Rev 493, 511-33 (2007) (inferring from the records of English Marian examinations and other sources that, by 1789, prisoners in committal proceedings would have had an opportunity to cross-examine witnesses).
For obvious reasons, recorded Marian testimony became an appealing source of evidence when witnesses could not testify at trial. See Crawford, 541 US at 44 (citing M. Hale, 2 Pleas of the Crown 284 (1736)). But strict rules governed when it could be introduced. One rule was that testimony could not be read unless the
To put a simple point on the history, the forfeiture doctrine originated as part of the Marian unavailability rule, similar to the rules for unavailability described in
In ruling on the admissibility of the witnesses’ statements, the judges in Lord Morley‘s Case did not mention whether Lord Morley had had an opportunity to confront the witnesses at the coroner‘s inquest. Not only is the decision silent on that point, but whether Lord Morley had had that opportunity appears to have been immaterial to whether the witnesses’ statements were admissible. If Lord Morley had been able to cross-examine the witnesses at the
coroner‘s inquest, then any concerns about confrontation would have been satisfied, and the doctrine of forfeiture by wrongdoing would have served only as an additional way of proving unavailability. Conversely, if Lord Morley had not had the opportunity to cross-examine the witnesses at the coroner‘s inquest, then it is difficult to see how the doctrine of forfeiture by wrongdoing, as it was first articulated, had anything to do with confrontation. After all, the judges ruled that the testimony of three witnesses who had died after the inquest could be admitted at the later criminal trial, as well as the testimony of a fourth witnesses if Lord Morley had procured his absence from trial. Under Lord Morley‘s Case, the admissibility of all four witnesses’ testimony turned only on whether they were unavailable, and forfeiture by wrongdoing served only as an additional way of proving unavailability.That was the state of the forfeiture doctrine when it was first articulated in 1666. The Court, however, explained in Crawford and confirmed in Giles that the doctrine had taken on greater significance by 1791 when the
That conclusion, which the Court drew from English and American common law, rests on two premises. First, the Court concluded in Crawford that, when the
The Court‘s view of history in Crawford and Giles has been the subject of debate. Some commentators have reasoned that the Americans who ratified the
Other commentators have started from the opposite premise. See Kry, 13 Lewis & Clark L Rev at 579. In their view, the Americans who ratified the
Even though both views of history start from different premises, they share the same view of forfeiture by wrongdoing: In 1791, it would have been understood only as another way of proving unavailability. Again, the Court took a middle position in Crawford and Giles, finding that by 1791 the doctrine of forfeiture by wrongdoing had become an equitable bar to asserting a confrontation claim under both the common law and the
We need not weigh in on that debate to resolve the meaning of
2
In America, one aspect of the common law had become settled by 1857: Unconfronted statements taken during Marian examinations were not admissible in later criminal proceedings. State v. Campbell, 30 SCL (1 Rich) 124, 125 (1844) (coroner‘s inquest); State v. Hill, 20 SCL (2 Hill) 607, 610-11 (1835) (committal hearing); see State v. Houser, 26 Mo 431, 436-38 (1858) (affirming general rule and excluding the statement because the state had failed to prove that the witness was unavailable); cf. State v. McO‘Blennis, 24 Mo 402 (1857) (holding that confronted statements taken during a committal hearing were admissible when the witness had died before the criminal trial). For example, in Campbell and also in Hill, the witness had died between the time he or she had testified at the Marian examination and
Those cases expressly rejected the rule recognized in some earlier English authorities that statements taken under oath in the course of a Marian examination were admissible whenever the witness was unavailable. Campbell, 30 SCL at 124-25; Hill, 20 SCL at 610-11.20 The court explained in Hill why it did not view the presence of an oath as sufficient: “[H]owever much inclined the witness may be to speak the truth, and the magistrate to do his duty in taking the examination, [the witness‘s] evidence will receive a coloring in proportion to the degree of excitement under which he labors.” 20 SCL at 610-11. The courts accordingly rejected the proposition that the oath was a sufficient guarantee of reliability and concluded instead that the opportunity for cross-examination was the necessary prerequisite for admitting the testimony in a later criminal case. Id.; accord Campbell, 30 SCL at 124-25.
In Hill, Campbell, Houser, and McO‘Blennis, the defendants had not procured the witnesses’ absence from the later criminal trials. Accordingly, none of those cases had occasion to consider the doctrine of forfeiture by wrongdoing or decide whether the application of that doctrine would result in the admission of the witness‘s statements. However, two cases that bracketed the adoption of the Oregon Constitution identified the equitable principle underlying the forfeiture doctrine as a bar to asserting a confrontation claim; that is, they explained that a defendant who purposefully keeps a witness away from trial cannot object to the admission of the witness‘s statements on the ground that the defendant cannot confront the witness at trial.
In 1856, the Georgia Supreme Court explained that the doctrine of forfeiture by wrongdoing would lead to the admission of a witness‘s examination before the committing magistrate. See Williams v. Georgia, 19 Ga 402, 402-03 (1856). The court began its analysis by citing Lord Morley‘s Case for the broad proposition that, if “any witness who had been examined by the Crown, and was then absent [because] *** the witness was detained by means or procurement of the prisoner, then the examination should be read.” Id. at 403. After concluding that the state had failed to lay a sufficient foundation for the admission of the evidence under the forfeiture doctrine, the court added in dicta that it did not think that the
Approximately 20 years later, the United States Supreme Court clarified what the Georgia Supreme Court had intimated in Williams. See Reynolds v. United States, 98 US 145, 25 L Ed 244 (1878). One of the questions in Reynolds was whether a witness‘s testimony from the defendant‘s earlier criminal trial could be admitted at a later trial for the same offense. The district court had found that the defendant had procured the witness‘s absence from the later trial, and the Court explained that the defendant‘s actions barred him from raising any objection on confrontation grounds. The Court reasoned:
“The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by [the accused‘s] own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.”
Having concluded that a defendant who prevents a witness from testifying cannot object on confrontation grounds to admitting the witness‘s prior statements, the Court turned to the question whether the “evidence [in that case had been] supplied in some lawful way.” Specifically, the Court turned “to the consideration of what the former testimony was, and the evidence by which it was proven to the jury.” Id. at 160.
The defendant in Reynolds had challenged the means by which the government had proved the missing witness‘s former testimony,21 and the Court relied on a civil evidence treatise that explained when former testimony was admissible as an exception to the rule against hearsay. See id. at 161 (citing Francis Wharton, 1 A Commentary on the Law of Evidence in Civil Issues § 177 (1877)). The treatise noted that former testimony could be proved by persons who had heard the witness‘s testimony, and it explained that
“[t]he admission of such evidence is based on the fact that the party against whom the evidence is offered, having had the power to cross-examine on the former trial, and the parties and issue being the same, the second suit is virtually a continuation of the first.”
Wharton, 1 Evidence § 177 at 180. Citing section 177 of Wharton‘s treatise, the Court noted that the testimony had been given at the defendant‘s trial on the same offense, that it was substantially the same as that given in the earlier trial, and that defendant had been present and had had “full opportunity of cross-examination.” 98 US at 160-61. The Court concluded, “This brings the case clearly within the well-established rules. The cases are fully cited in 1 Whart. Evid., sect. 177.” Id. at 161.
The Court‘s opinion in Reynolds divides into two parts. When the Court addressed the defendant‘s constitutional objections to the admission of the testimony, it concluded broadly that the equitable principles underlying the forfeiture doctrine foreclosed the defendant from objecting to the admission of the testimony on confrontation grounds. When the Court turned to the defendant‘s evidentiary objections to the admission of the witness‘s former testimony, it relied on a treatise governing the admission of evidence in civil proceedings to conclude that the trial court‘s ruling was “clearly within well-established rules.” To be sure, as the Court noted, the statements at issue in Reynolds had been subject to cross-examination in the defendant‘s first trial. However, that consideration appears to have factored into the Court‘s analysis only in resolving the defendant‘s evidentiary objections to the admission of the evidence. Not only did the Court resolve the defendant‘s
With that background in mind, we turn to defendant‘s state constitutional argument. Defendant advances two separate arguments. His first argument is based on the common law. Defendant acknowledges that the common-law doctrine of forfeiture by wrongdoing excused the need for confrontation. He contends, however, that the common-law forfeiture doctrine applied only if the statements admitted under that doctrine had an independent guarantee of reliability, and he points to the fact that, at common law, statements taken during a Marian examination would have been taken under oath. In his view, the presence of an oath was evidence that, at common law, the doctrine of forfeiture by wrongdoing required an irreducible minimum guarantee of reliability before an ex parte statement could be admitted. He reasons that
Before turning to defendant‘s reliability argument, we note our agreement with the premise of his argument.
For the reasons set out above, we agree with defendant that, by 1857, the equitable principle underlying the doctrine of forfeiture by wrongdoing served as a bar to asserting a common-law confrontation right. The framers of Oregon‘s constitution accordingly would have understood that, at common law, a defendant who engaged in wrongdoing for the purpose of making a witness unavailable could not complain that the witness‘s prior statements were admissible without the defendant having the opportunity to meet the witness “face to face.” We are also persuaded that, in adopting
As we understand defendant‘s argument, it rests on the proposition that a defendant who gives up his or her
To be sure, this court held in Campbell that
The common-law context against which
We note, finally, that no direct evidence exists of what the people who framed the Oregon Constitution thought about the right to confrontation.
Having reached that conclusion, we recognize that other sources of law provide some assurance against the admission of unreliable evidence. As the trial court observed, rules of evidence, such as
We conclude that, when a defendant has intentionally made a witness unavailable to testify, the defendant loses the right to object that that evidence should not be admitted on state constitutional confrontation grounds. The defendant‘s act ensures that the witness‘s testimony can never be subject to “testing in the crucible of cross-examination.” Crawford, 541 US at 61. In other words, where a defendant acts wrongfully to make a witness unavailable, that defendant largely controls the very feature of the evidence to which he objects. The principle of forfeiture by wrongdoing, as its history shows, ensures that a defendant cannot manipulate proceedings in that way. It likewise establishes that, if a defendant attempts that kind of manipulation, he or she cannot evade its consequences.
Defendant advances a second state constitutional argument. He contends that he can lose his confrontation rights under
IV
The
The state does not dispute that the hearsay statements that the trial court admitted are testimonial, nor does it contend that defendant had the ability to cross-examine his wife regarding some of those statements.23 We assume, therefore, that the
Defendant‘s argument is difficult to square with Crawford. The Court made clear in Crawford that the
V
Defendant argues that, even if admitting his wife‘s statements under
Defendant does not argue that his deceased wife‘s statements come within any of the categories of evidence that the Court previously has recognized are so unreliable that their admission violates due process. Rather, defendant argues that the admission of his wife‘s statements violates due process because he “lacked one of his critical procedural mechanisms for challenging unreliable evidence“—namely, cross-examination. To the extent that defendant‘s inability to cross-examine his wife is the crux of his due process argument, it suffers from three problems. First, defendant can hardly complain that he cannot cross-examine his wife when he purposefully made her unavailable to testify. The second problem is related to the first; if defendant is correct, his interpretation of the
Beyond noting his inability to cross-examine his wife, defendant provides no reason to think that the statements his wife made in anticipation of litigation are so unreliable that their admission violates due process. See, e.g., Albrecht v. Horn, 485 F3d 103, 135 (3d Cir 2007) (holding that out-of-court statements to an attorney were sufficiently reliable in part because the client knew that the statements would have to be proved at trial). We conclude that, the trial court did not err in admitting, over defendant‘s statutory and constitutional objections, some of the statements that his wife made before her death.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.