No. 55 October 19, 2017 55

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

KENNETH JAMES HARRIS,

aka Kenneth James Harris-Maynard,

aka Kenneth James Maynard,

Respondent on Review.

(CC 12FE0978; CA A154977; SC S064377)

On review from the Court of Appeals.*

Argued and submitted May 9, 2017.

Gregory A. Rios, Assistant Attorney General, Salem, 

argued the cause for petitioner on review. Jennifer S. Lloyd, 

Assistant Attorney General, filed the brief, joined by Gregory 

A. Rios. Also on the brief were Ellen F. Rosenblum, Attorney 

General, and Benjamin Gutman, Solicitor General.

John Evans, Deputy Public Defender, Salem, argued the 

cause and filed the brief for respondent on review. Also on 

the brief was Ernest G. Lannet, Chief Defender, Office of 

Public Defense Services.

Margaret Garvin, Portland, filed the brief for amicus curiae National Crime Victim Law Institute at Lewis & Clark 

Law School. Also on the brief was Rebecca S.T. Khalil.

Before Balmer, Chief Justice, and Kistler, Walters, 

Landau, and Nakamoto, Justices, and Baldwin, Senior 

Justice pro tempore.

LANDAU, J.

The decision of the Court of Appeals is reversed. The 

judgment of the circuit court is affirmed.

______________

** On appeal from Deschutes County Circuit Court, Alta J. Brady, Judge. 

279 Or App 446, 379 P3d 539 (2016).

** Brewer, J., retired June 30, 2017, and did not participate in the decision 

of this case. Flynn and Duncan, JJ., did not participate in the consideration or 

decision of this case.
56 State v. Harris

Case Summary: In a criminal case, the trial court admitted hearsay evidence over the defendant’s objection that the state had failed to establish that 

its witness was unavailable and so the evidence was barred by his constitutional 

confrontation right. Held: (1) when the state seeks to admit hearsay evidence 

over a confrontation objection, it must affirmatively establish that the witness is 

unavailable, meaning that the state has exhausted reasonable means of obtaining the witness; (2) serving a subpoena on a witness, without more, does not generally constitute exhaustion of reasonable means; and (3) because defendant had 

objected to a continuance to allow the state to pursue further means of obtaining 

the witness, he could not now complain that the court erred in finding that the 

witness was unavailable.

The decision of the Court of Appeals is reversed. The judgment of the circuit 

court is affirmed.
Cite as 362 Or 55 (2017) 57

LANDAU, J.

Article I, section 11, of the Oregon Constitution provides a criminal defendant the right “to meet the witnesses 

face to face.” That right of confrontation is not absolute, 

though. If the state shows that a witness is “unavailable,” it 

may offer reliable hearsay evidence without presenting a live 

witness at trial. The issue in this case is what is required to 

establish that a witness is “unavailable.”

In this case, the state issued a subpoena for a witness against defendant, and the witness did not appear for 

trial. The state then offered hearsay evidence in lieu of live 

testimony, arguing that the witness’s failure to appear in 

response to the subpoena sufficed to establish her unavailability. Defendant argued that a witness is unavailable for 

confrontation purposes only when the state has exhausted 

all reasonable means of securing the appearance of the witness. Once the state became aware that its witness would 

not appear, he argued, it could have taken any number of 

additional actions to secure her appearance, but did not do 

so. The trial court offered to continue the trial to allow the 

state to take such additional steps, but defendant objected. 

The trial court then concluded that the state had made reasonable efforts to produce the witness and admitted the 

hearsay.

The Court of Appeals reversed, holding that “more 

could have been done” to produce the witness at trial. State 

v. Harris, 279 Or App 446, 457, 379 P3d 539 (2016). We 

conclude that, to establish unavailability for Article I, section 11, purposes, the state must show that it is unable to 

produce a witness after exhausting reasonable means of 

doing so. In most cases, the state will not be allowed simply to rely on a subpoena. In this case, however, defendant 

objected to a continuance that would have enabled the state 

to pursue other means of securing its witness. Under the 

circumstances, defendant cannot be heard now to complain 

that the state did not exhaust those measures. We therefore 

reverse the decision of the Court of Appeals and affirm the 

judgment of the circuit court.

The relevant facts are not in dispute. Police 

received a 9-1-1 call from a minor victim. The victim told 
58 State v. Harris

the dispatcher that she was hiding in the bathroom from 

her mother’s boyfriend, defendant, who had struck her with 

a belt and was outside the door fighting with her mother in 

front of her younger siblings. Police arrived and found the 

victim “hysterical” in the street outside the house. Defendant 

claimed that he had attempted to discipline the victim. The 

victim testified to a grand jury, and defendant was charged 

with felony fourth-degree assault.

The state subpoenaed the victim to appear as a witness at trial. The record does not include the subpoena or 

the return of service, and it does not show the precise date 

that the subpoena was issued. On the morning of trial, the 

prosecutor learned that the victim was not going to appear. 

In lieu of her testimony, the state offered a recording of the 

9-1-1 call, arguing that the recording was admissible under 

the excited-utterance exception to the rule against hearsay.

The trial court held a hearing on the admissibility 

of the recording, focusing on defendant’s Article I, section 

11, right to confront witnesses face-to-face. The prosecutor 

argued that hearsay testimony is admissible notwithstanding confrontation rights if the declarant is unavailable and 

the statements are reliable. The prosecutor asserted that 

there was no dispute as to the reliability of the recording 

of the victim’s 9-1-1 report, and her failure to appear in 

response to the subpoena established her unavailability. He 

explained that “the State has subpoenaed [the victim] * **. 

[W]e have a return of service on her. We have been trying to 

call her to have her appear and reach her.”

The trial court asked the prosecutor whether “the 

mere fact of not showing up for a subpoena” satisfied the 

state’s obligation to show that a witness is unavailable. The 

prosecutor responded:

“I know we have to make that showing * * *. And I 

think when the State subpoenaed a witness, that we have 

attempted to call her, we can’t reach her. I spoke to her 

mother this morning in order to confirm whether she was 

coming or not.

“* ** I think where the line comes in is where there is no 

effort made, we are just going to not bother to try to get the 

witness here that that becomes an issue. But that was not 
Cite as 362 Or 55 (2017) 59

the state’s intent. * ** [I]t would have been easier to have a 

witness here. We wouldn’t have to be having this argument 

about what comes in and what doesn’t if she were here. And 

we made the efforts to get her here. We did serve her. ** * 

[S]he is refusing to appear.”

Defendant did not dispute the reliability of the 9-1-1 

recording, but did contest that the state established that the 

witness was unavailable. According to defendant, “the effort 

has been minimal at this point, basically no effort finding 

out that she doesn’t want to come in.” Defendant argued that 

the state could ask the court to order her to appear as a 

material witness. Apart from that, he argued, “the Sheriff 

or police officers could be sent out to have her available.”

The court noted that it understood why the state 

might be hesitant to take those actions in a domestic violence case and proposed the following solution:

“[W]e could set this to begin tomorrow ** * and allow 

the state to do whatever further—make whatever further 

efforts it wishes to make at this time whether through officers that are on the case or otherwise. And then we could 

take it up tomorrow morning.

“It feels to me like there is a little bit more—and I am 

not ** * formally ruling on that, but it seems to me that 

there might be a little more that could be done to ensure 

that [defendant’s] Constitutional rights are protected that 

won’t interfere with the operation of this—completion of 

this trial under the circumstances. So I would give the 

state that opportunity to do so.”

The prosecutor agreed to that plan. But defendant objected 

to allowing the state further time to secure the witness’s 

presence, arguing that the court had to decide whether 

the state had satisfied the legal standard for unavailability based on the state’s pretrial efforts to secure her attendance. Given defendant’s objection to the continuance, the 

court instead ruled that,

“based upon the information that the State had prior to 

today’s date, the fact that they had a return of service that 

[the witness] had been served with a subpoena, without 

specific reason to know that she would not comply with that 

such that they need to take additional steps beforehand, 

the guidance *** available from the Court of Appeals on 
60 State v. Harris

this issue is that the State has made a reasonable effort to 

procure her attendance. She has not attended and so is not 

available.”

The court further ruled that the statements were reliable as 

excited utterances and admitted the 9-1-1 recording.1

 The 

court found defendant guilty of the lesser-included offense of 

attempted misdemeanor fourth-degree assault.

Defendant appealed to the Court of Appeals, assigning error to the trial court’s decision to admit the 9-1-1 

recording. He argued that the court incorrectly determined 

that the state had made an adequate effort to secure the 

witness to establish her unavailability for Article I, section 

11, purposes. The state reprised its argument that service 

of a subpoena alone was a sufficient effort to secure witness 

testimony.

The Court of Appeals agreed with defendant. The 

court explained that “the test for unavailability is, ultimately, one of necessity,” and the state failed to satisfy that 

test. Harris, 279 Or App at 454 (emphasis in original). In 

the view of the Court of Appeals, the state’s effort to locate 

the witness was minimal:

“[T]he state did not attempt to locate [the witness] through 

her mother, who was present at the courthouse, or through 

other relatives or law enforcement; it did not send or even 

propose to send law enforcement to get her; nor did the 

state invoke the court’s contempt power or seek a material 

witness order to ensure [the victim’s] attendance once she 

failed to show up on the morning of trial; and, although the 

prosecutor was perhaps amenable to a continuance to make 

further efforts to procure [the witness’s] testimony, he did 

not request a continuance for that purpose.”

Id. at 456-57. The court noted that the state had agreed to 

a continuance to pursue other means of producing the witness, but concluded that that was of no significance because 

the state had not moved for a continuance. Id. at 457 n 4. 

1 OEC 803(2) states an exception to the rule against the admission of hearsay evidence that applies to “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the 

event or condition.” See generally State v. Longo, 341 Or 580, 601-02, 148 P3d 892 

(2006) (applying rule).
Cite as 362 Or 55 (2017) 61

Because the court determined that the state had failed 

to make a reasonable good-faith effort to secure the witness’s presence at trial, the Court of Appeals reversed and 

remanded.

Before this court, the state argues that the Court 

of Appeals erred in requiring more than a showing that it 

served a witness with an enforceable subpoena to establish 

the witness’s unavailability. In the state’s view, the court 

placed too much emphasis on references in this court’s precedents to a requirement that the proponent of the admission of hearsay over confrontation objections must prove the 

“necessity” of relying on hearsay. According to the state, 

Article I, section 11, requires only that the state demonstrate “reasonable, good-faith efforts to obtain in-person 

trial testimony from a hearsay declarant” and that it satisfies that obligation “when it shows that it has served her 

with a valid subpoena requiring her to appear at trial, but 

she nonetheless fails to appear.”

Defendant responds that the state satisfies its obligation to establish the unavailability of a witness only when 

it shows that it has “exhaust[ed] every reasonable means 

of securing the witness’s appearance.” In this case, defendant argues, “[t]he state had reasonable and readily available methods for securing [the witness’s] attendance that it 

never tried.” Among other things, defendant suggests that 

the state “could have sent someone to her house to persuade 

her to attend and to offer her a ride to the courthouse.” 

Defendant adds that the prosecutor also could have “asked 

the court to set over the trial so that remedial-contempt proceedings could be initiated.”

Under Article I, section 11, of the Oregon 

Constitution, a defendant has the right “to meet the witnesses face to face” in all criminal prosecutions. The constitution states the right in absolute, unqualified terms. Yet 

this court has never interpreted it literally. To the contrary, 

the court has concluded that Article I, section 11, must be 

construed in light of certain well-established exceptions that 

existed at common law. State v. Copeland, 353 Or 816, 822, 

306 P3d 610 (2013). Among those well-established exceptions 

is one that permits the use of prior out-of-court statements 
62 State v. Harris

that are “necessary” because of the “unavailability” of the 

declarant. In State ex rel. Gladden v. Lonergan, 201 Or 163, 

269 P2d 491 (1954), for example, the court held that the confrontation guarantee of Article I, section 11, did not foreclose the admission of depositions and former testimony if 

the declarant was unavailable. The court did not precisely 

define what must be shown to establish the unavailability of 

a witness. It did, however, emphasize that the issue is controlled by “the simple principle of necessity—i.e., the absence 

of any other means of utilizing the witness’ knowledge.” Id.

at 182 (quoting 5 John Henry Wigmore, A Treatise on the 

Anglo-American System of Evidence § 1402 (3d ed 1940) 

(emphasis in original)).2

 Thus, at least under Lonergan, it 

was not enough for the state to show that it had attempted 

unsuccessfully to produce a witness by a reasonable means. 

Rather, the court required that the court exhaust all reasonable means.

In State v. Herrera, 286 Or 349, 594 P2d 823 (1979), 

the court reaffirmed the validity of an unavailability exception to the confrontation guarantee. But it cautioned that 

the exception applies only “when a witness is truly unavailable to testify at trial.” Id. at 355. Because of the defendant’s 

“strong interest” in being able to confront witnesses, the 

court said, “this exception cannot be granted routinely.” Id.

Before the state can rely on prior out-of-court statements, 

it must demonstrate why the use of such evidence is “genuinely necessary.” Id.

The manner in which the court applied those principles in Herrera illustrates the demanding nature of the 

showing required of the proponent of the out-of-court statements. In Herrera, the state argued that its witness was 

unavailable because he had invoked the privilege against 

self-incrimination. Id. at 355-56. The court concluded that 

the simple fact that the witness had invoked the privilege 

2 The section of Wigmore that the court cited went on to say that the rule at 

common law required unavailability “by any means whatever,” but noted that it 

was not clear whether, in practice, all courts consistently followed that rule. Id.

Wigmore cited, among other things, Simon Greenleaf’s nineteenth-century treatise on evidence for the proposition that, to prove unavailability, the proponent of 

hearsay evidence must show that it had “irrecoverably lost the power of producing the witness.” Id. (quoting Simon Greenleaf, A Treatise on the Law of Evidence 

§ 168 (1842)).
Cite as 362 Or 55 (2017) 63

was insufficient to show that he was unavailable. The court 

noted that the witness had invoked the privilege because 

he had been promised immunity and that, under those circumstances, the state had available to it statutory means of 

nevertheless compelling the witness’s testimony. Id. at 357. 

To establish unavailability for confrontation purposes, the 

court explained, “at the minimum the state must show *** 

why it does not wish to avail itself of statutes which can 

compel his testimony at the trial.” Id. at 356. In other words, 

to establish unavailability, the state was required to explain 

why it had not followed reasonable means of compelling the 

testimony.

The court in Herrera cited as authority for its constitutional analysis the United States Supreme Court’s decision in Barber v. Page, 390 US 719, 88 S Ct 1318, 20 L Ed 

2d 255 (1968), which construed the parallel confrontation 

guarantee of the Sixth Amendment to the United States 

Constitution.3

 In that case, the state sought to introduce a 

transcript of a preliminary hearing in lieu of the live testimony of a witness who was then incarcerated in another 

state. The state argued that the transcript was admissible because the witness was outside the jurisdiction. The 

Supreme Court rejected the argument, explaining that the 

confrontation guarantee allowed such out-of-court testimony in cases of “necessity.” Id. at 722. Because the state 

had not explained why it had not pursued existing statutory 

means of obtaining the witness in spite of his location, the 

Court said, the state had not demonstrated the necessity of 

admitting the hearsay. Id. at 722-24.

This court again relied on federal precedents to 

interpret and apply the confrontation guarantee of Article I, 

section 11, in State v. Campbell, 299 Or 633, 651, 705 P2d 

694 (1985). At issue was the admissibility of the hearsay 

testimony of a mother as to her child’s statements. The 

state argued that the testimony was admissible because 

the child, then three years of age, was not competent to 

testify. Addressing the question whether admission of that 

hearsay evidence violated the defendant’s Article I, section 

3 The Sixth Amendment guarantees a criminal defendant the right “to be 

confronted with the witnesses against him.”
64 State v. Harris

11, confrontation rights, this court expressly adopted the 

reasoning of the United States Supreme Court in Ohio v. 

Roberts, 448 US 56, 100 S Ct 2531, 65 L Ed 2d 597 (1980), 

overruled by Crawford v. Washington, 541 US 36, 43-50, 124 

S Ct 1354, 158 L Ed 2d 177 (2004).

In Roberts, the Supreme Court had articulated a 

two-part test for the admissibility of hearsay testimony over 

confrontation-rights objections: First, the declarant must 

be unavailable. Second, if the declarant is unavailable, the 

declarant’s out-of-court’s statements must have “adequate 

indicia of reliability.” Roberts, 448 US at 66. Quoting its earlier opinion in Barber, the Court explained that a witness 

is not unavailable, for confrontation purposes, “unless the 

prosecutorial authorities have made a good-faith effort to 

obtain his presence at trial.” Roberts, 448 US at 74. The 

Court commented that, although “[t]he law does not require 

the doing of a futile act,” the prosecutor must exhaust reasonable measures for obtaining the witness: “[I]f there 

is a possibility, albeit remote, that affirmative measures 

might produce the declarant, the obligation of good faith 

may demand their effectuation.” Id. (emphasis in original). 

Ultimately, the Court said, the extent of the prosecutor’s 

obligation to procure the witness is a question of reasonableness. Id

Applying those principles in Campbell, this court 

concluded that the state had failed to make a record establishing the incompetency of the child victim to testify. 

Accordingly, it reversed and remanded for the trial court to 

make that determination. 299 Or at 652.

To be sure, in later cases, the Supreme Court 

first qualified and then overruled its decision in Roberts. 

See United States v. Inadi, 475 US 387, 392-94, 106 S Ct 

1121, 89 L Ed 2d 390 (1986) (unavailability not required to 

admit hearsay testimony of coconspirator); White v. Illinois, 

502 US 346, 353-56, 112 S Ct 736, 116 L Ed 2d 848 (1992) 

(unavailability not required to admit spontaneous declarations); Crawford, 541 US at 43-65 (overruling Roberts). 

Nevertheless, this court continues to adhere to the Roberts

analysis in interpreting and applying the confrontation 

guarantee of Article I, section 11.
Cite as 362 Or 55 (2017) 65

Of particular significance for our purposes is this 

court’s opinion in State v. Moore, 334 Or 328, 49 P3d 785 

(2002). In that case, the state argued that, in light of the 

federal case law after Roberts, this court should reconsider 

its adherence to Roberts. This court declined to do so. After 

considering the text of Article I, section 11, the provision’s 

historical purposes, and the prior case law construing it, 

the court decided to maintain the Roberts requirements 

of unavailability and reliability. Moore, 334 Or at 339-40. 

Citing Lonergan, the court emphasized that its prior cases 

adhered to a demanding requirement of unavailability: “only 

when confrontation, in the classic sense was impossible,” the 

court observed, was hearsay admitted over confrontation 

objections. Id. at 339 (emphasis in original). That case law, 

the court said, “continued to focus on necessity as the justification for admitting hearsay against a criminal defendant, 

once confrontation became impossible.” Id.

This court has reaffirmed Campbell and Moore in a 

number of subsequent decisions. In State v. Birchfield, 342 

Or 624, 629, 157 P3d 216 (2007), the court noted Moore’s

express adherence to the two-part test of Roberts and, in 

particular, on the unavailability requirement. Indeed, it 

emphasized Moore’s insistence that “the focus when considering the strictures of the Oregon Constitution had been 

and would continue to be on ‘necessity as the justification for 

admitting hearsay against a criminal defendant, once confrontation became impossible.’” Birchfield, 342 Or at 629-30 

(quoting Moore, 334 Or at 339). More recently, in Copeland, 

353 Or at 826, the court reaffirmed Campbell and Moore. 

The court noted that the latter decision had “referred to the 

unavailability requirement in sweeping terms.” Id. But it 

did nothing to qualify that requirement.

As did the court in Copeland, we acknowledge that 

there is phrasing in Moore that is indeed sweeping. The 

court there referred to “necessity as the justification for 

admitting hearsay against a criminal defendant, once confrontation became impossible.” Moore, 334 Or at 339. The 

reference to impossibility must be taken in the light of the 

Supreme Court’s qualification in Roberts that, of course, the 

law does not require the state to engage in futile measures. 

Roberts, 448 US at 74.
66 State v. Harris

That said, in light of the foregoing case law, the 

state’s contention that Article I, section 11, requires only 

that it have subpoenaed a witness is untenable. The constitutional confrontation guarantee requires the state to 

do more than select one from any number of reasonable 

means of securing the presence of a witness and call it a 

day. Reliance on hearsay in lieu of live testimony must be 

a matter of “necessity.” The state must have exhausted all 

reasonably available means of producing the witness.

In that regard, we have found a notable lack of 

support in the case law of this state or others for the view 

that the state proposes in this case, viz., that unavailability 

may be established simply by showing that a witness did 

not comply with a subpoena.See, e.g., State v. Beyer, 72 Haw 

469, 473, 822 P2d 519 (1991) (“Mere service of a subpoena on 

the complaining witness did not establish her unavailability.”), overruled on other grounds by State v. Moore, 82 Haw 

202, 921 P2d 122 (1996); State v. Rivera, 51 Wash App 556, 

561, 754 P2d 701 (1988) (“The State cannot claim good faith 

solely on the issuance of the subpoena.”); Bentley v. State, 

706 P2d 1193, 1197 (Alaska Ct App 1985). But see State v. 

Trice, 292 Neb 482, 490, 874 NW2d 286 (2016) (“[S]erving 

a witness with a subpoena to testify ordinarily constitutes 

a sufficient good faith effort to procure the witness’ attendance at trial.”).

It is undisputed that the state could have pursued other measures to produce the victim in this case. 

We need not decide, however, whether the state reasonably 

should have pursued those other measures. In this case, the 

state agreed to a continuance to permit it to make further 

attempts to secure its witness. But defendant objected to 

any such continuance. Defendant does not explain, and we 

do not understand, how the state can be faulted for failing 

to obtain a continuance to pursue other means of producing the witness when defendant objected to the state being 

allowed to do just that. The Court of Appeals found it significant that the state did not request a continuance. Harris, 

279 Or App at 457 n 4. But, given that the trial court had 

said that it would allow the state additional time to secure 

the witness, a specific request for the court to do that was 

not necessary.
Cite as 362 Or 55 (2017) 67

By objecting to the state being allowed to take further measures to produce its witness, defendant essentially 

invited any error that may have resulted. As this court has 

long held, invited error is no basis for reversal. See, e.g., 

State v. Koennecke, 274 Or 169, 173-74, 545 P2d 127 (1976) 

(state, having invited error by asking the trial judge to enter 

an order, could not appeal that order); Valdin v. Holteen and 

Nordstrom, 199 Or 134, 152, 260 P2d 504 (1953) (“[D]efendant objected, and, because of his objection, the proper procedure was not followed. * ** Defendant invited this error 

and is in no position to complain thereof.”); State v. Weitzel, 

157 Or 334, 344, 69 P2d 958 (1937) (“It will not do for counsel to invite error and then complain about it.”).

In sum, we reject the state’s contention that the 

unavailability requirement of Article I, section 11, is satisfied when a witness fails to comply with a subpoena. The 

state must exhaust reasonably available measures for producing the witness. In so holding, however, we reiterate that 

the rule is one of reasonableness under the circumstances of 

the individual case.

In this case, defendant objected to the state being 

granted the time to pursue other means of producing the 

victim as a witness. Under those circumstances, defendant 

is in no position to complain that the trial court erred in 

concluding that the victim was unavailable for confrontation 

purposes and in admitting the 9-1-1 recording of her report.

The decision of the Court of Appeals is reversed. 

The judgment of the circuit court is affirmed.