State v. Copeland

816 July 25, 2013 No. 32

32

353 Or

State v. Copeland

July 25, 2013

IN THE SUPREME COURT OF

THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

EDWARD ROGER COPELAND,

Petitioner on Review.

(CC 090647486; CA A143210; SC S060370)

En Banc

On review from the Court of Appeals.*

Argued and submitted March 8, 2013.

Kali Montague, Deputy Public Defender, Office of Public

Defense Services, Salem, argued the cause for petitioner

on review. With her on the brief was Peter Gartlan, Public

Defender.

Doug M. Petrina, Assistant Attorney General, Salem,

argued the cause for respondent on review. With him on the

brief were Ellen F. Rosenblum, Attorney General, and Anna

M. Joyce, Solicitor General.

BREWER, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

______________

* Appeal from Multnomah County Circuit Court, Merri Souther Wyatt,

Judge. 247 Or App 362, 270 P3d 313 (2011).

Cite as 353 Or 816 (2013) 817

In this punitive contempt proceeding for violation of a Family Abuse

Prevention Act (FAPA) restraining order, defendant challenges the admission

in evidence of a deputy sheriff’s certificate of service of the restraining order.

Defendant asserts that admission of the certificate of service violated his

confrontation right under Article I, section 11, of the Oregon Constitution,

because the state did not establish that the declarant was unavailable to testify.

Defendant also asserts that the document was “testimonial” evidence that was

inadmissible under the confrontation clause of the Sixth Amendment to the

United States Constitution. The trial court concluded that the certificate was

admissible despite defendant’s constitutional objections, and, after defendant

appealed from his ensuing conviction, the Court of Appeals affirmed. Held: The

out-of-court declaration made by the deputy sheriff who issued the certificate of

service in the underlying FAPA proceeding here was not “witness” evidence that

triggered defendant’s confrontation right under Article I, section 11, because the

certificate was an official record whose content was confined to a matter that

the deputy sheriff was bound by an administrative duty to report, and it did

not include investigative or gratuitous facts or opinions. In addition, the court

concluded that the certificate was not testimonial evidence under the Sixth

Amendment.

The decision of the Court of Appeals and the judgment of the circuit court

are affirmed.

818 State v. Copeland

BREWER, J.

In this punitive contempt proceeding for violation

of a Family Abuse Prevention Act (FAPA) restraining order,

defendant challenges the admission in evidence of a deputy

sheriff’s certificate of service of the restraining order. Defen-

dant asserts that admission of the certificate of service vio-

lated his confrontation right under Article I, section 11, of

the Oregon Constitution, because the state did not establish

that the declarant was unavailable to testify. Defendant

also asserts that the document was “testimonial” evidence

that was inadmissible under the confrontation clause of the

Sixth Amendment to the United States Constitution. The

trial court concluded that the certificate was admissible

despite defendant’s constitutional objections, and, after

defendant appealed from his ensuing conviction, the Court

of Appeals affirmed. State v. Copeland, 247 Or App 362, 270

P3d 313 (2011).

As explained below, we conclude that the out-of-

court declaration made by the deputy sheriff who issued

the certificate of service in the underlying FAPA proceeding

here was not “witness” evidence that triggered defendant’s

confrontation right under Article I, section 11, because the

certificate was an official record whose content was con-

fined to a matter that the deputy sheriff was bound by

an administrative duty to report, and it did not include

investigative or gratuitous facts or opinions. In addition, we

conclude that the certificate was not testimonial evidence

under the Sixth Amendment. Therefore, we affirm the deci-

sion of the Court of Appeals and the judgment of the circuit

court.

I. BACKGROUND

The pertinent facts, summarized from the Court

of Appeals opinion, are few and undisputed. Defendant’s

then-wife, S, obtained a restraining order that prohibited

defendant from coming within 150 feet of her home and other

locations that she frequented, including the Savoy Tavern,

where she worked. Id. at 364. The next day, Deputy Sheriff

Schweitzer certified by written proof of service that he had

personally served defendant with the restraining order

that day. Several weeks later, S was working at the Savoy

Cite as 353 Or 816 (2013) 819

Tavern and noticed that defendant was seated at the bar

of a restaurant across the street. She called the police. The

responding officers determined that defendant was within

150 feet of the tavern and arrested him for violating the

restraining order. Id. at 365.

The state charged defendant with punitive contempt

under ORS chapter 33 for violating the restraining order.1

The charging instrument alleged, in part, that defendant,

“having received notice of [the restraining order] did * * * will-

fully enter *  * [and] remain at the area 150 feet from the

*

Savoy Tavern” in violation of the restraining order. Id.

(brackets and omissions in the original; emphasis omitted).

At trial, the state offered the certificate of service as evidence

that defendant had notice of the restraining order. Defendant

objected, arguing that admission of the certificate of service

without allowing him to confront Schweitzer violated his

state and federal constitutional confrontation rights. The

state responded that the document was admissible under the

official records hearsay exception, OEC 803(8), and therefore

was not subject to the confrontation protections of Article I,

section 11. As to the federal constitution, the state asserted

that the certificate of service was not “testimonial” and thus

defendant’s Sixth Amendment confrontation right was not

triggered. The trial court agreed with the state and admitted

the evidence. Ultimately, the trial court found defendant in

contempt of court and imposed punitive sanctions.

Defendant appealed, renewing his constitutional

objections to the admission of the certificate of service. In

a written opinion, the Court of Appeals affirmed. First, the

court rejected defendant’s federal constitutional argument,

citing its prior decision in State v. Tryon, 242 Or App 51, 59,

255 P3d 498 (2011), where it had held that the admission of

a return of service of a restraining order did not violate the

defendant’s right to confrontation under the Sixth Amend-

ment because the evidence was not testimonial. Copeland,

247 Or App at 364 n 1. Turning to the Oregon Constitution,

the court concluded that, even though the confrontation

1

Defendants in punitive contempt proceedings are generally entitled to the

same constitutional protections afforded defendants in criminal proceedings,

exceptfor the right to a jury trial. ORS 33.065(6).

820 State v. Copeland

guarantee in Article I, section 11, generally precludes the

admission of hearsay evidence “unless the state establishes

that (a) the declarant is unavailable to testify and (b) the

statements bear ‘adequate indicia of reliability,’  id. at 366

”

(quoting State v. Campbell, 299 Or 633, 648, 705 P2d 694

(1985)), that guarantee does not apply to “certain ‘historical

exceptions’ corresponding to types of hearsay that ‘the

framers of the Oregon Constitution would have understood

*  * to have constituted an exception to the confrontation

*

rights guarantee.’ ” Id. at 367 (quoting State v. William, 199

Or App 191, 197, 110 P3d 1114, rev den, 339 Or 406 (2005)).

The court then noted that, in this case, defendant

had acknowledged that some official records fall under an

“historical exception” to the confrontation right, and that

defendant had argued only that, in the context of official

records, the historical exception pertained solely to proof of

“collateral” matters. Id. at 366. Thus, the court concluded

that “[t]he inquiry in this case reduces to whether the

submission of a public record to establish an essential—as

opposed to ‘collateral’—fact in a criminal proceeding falls

within such an ‘historical exception’ to confrontation.” Id. at

367. Relying on its own prior case law, the court concluded

that the official records exception to the state confrontation

right applied equally to the proof of “essential” facts as it

did to “collateral” facts. Id. at 369. In a concurring opinion,

Judge Sercombe stated that he was “not sure that the analy-

sis in William continues to be correct” in light of State v.

Birchfield, 342 Or 624, 157 P3d 216 (2007), where this court

held that the admission of a criminalist’s laboratory report

without either requiring the state to produce the criminalist

at trial to testify or demonstrating that the criminalist was

“unavailable” violated Article I, section 11. Copeland, 247 Or

App at 370-71 (Sercombe, J., concurring).

On review, defendant does not dispute that the cer-

tificate of service was a qualifying official record under OEC

803(8). That rule provides, in part, that the following are

excepted from the rule against hearsay, even though the

declarant is available as a witness:

“Records, reports, statements or data compilations, in

any form, of public offices or agencies, setting forth:

Cite as 353 Or 816 (2013) 821

“(a)  The activities of the office or agency;

“(b)  Matters observed pursuant to duty imposed by law

as to which matters there was a duty to report, excluding,

in criminal cases matters observed by police officers and

other law enforcement personnel * * *.”2

However, defendant asserts that the Court of Appeals erred

in concluding that its admission did not violate his state

and federal constitutional confrontation rights. As part of

the “first things first” methodology, we consider state consti-

tutional issues before we consider federal claims. Campbell,

299 Or at 647.

With respect to Article I, section 11, defendant argues

that the Court of Appeals incorrectly concluded that the

confrontation requirement does not apply when hearsay evi-

dence, although otherwise admissible as an official record,

is offered to prove an “essential”—as opposed to collateral—

fact in a criminal case. In this case, defendant contends,

the certificate of service was essential to establish a prima

facie case for contempt and, therefore, its admission was

subject to the confrontation protections of Article I, section

11. In particular, defendant urges that the trial court erred

in admitting the certificate of service in the absence of a

showing that Officer Schweitzer was unavailable to testify.

In concluding that the evidence was admissible,

defendant argues, the Court of Appeals made two mistakes.

First, defendant argues that the court misapplied this

court’s decisions discussing the existence of historical excep-

tions to the confrontation right under Article I, section 11.

Defendant asserts that those decisions stand for the pro-

position that certain hearsay evidence may fall outside the

protections of the confrontation right only if the evidence is

“collateral” and no other means of obtaining the evidence

exists. Those decisions do not, defendant urges, support the

Court of Appeals’ conclusion that a trial court may admit

hearsay evidence to prove an element of a crime unless

2

In 2011, OEC 803(8) was amended to add a new subsection (d) that specif-

ically provides that “[i]n civil and criminal proceedings, a sheriff ’s return of ser-

vice” is excepted from the rule against hearsay. Or Laws 2011, ch 661, §14. That

amendment does not apply to this case because the contempt hearing was held

before its effective date.

822 State v. Copeland

the declarant is unavailable to testify. Second, defendant

asserts that the Court of Appeals opinion in this case is

inconsistent with this court’s decision in Birchfield. In that

regard, defendant essentially tracks the concern expressed

in Judge Sercombe’s concurrence.

II.  ARTICLE I, SECTION 11, ANALYSIS

In Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65

(1992), this court held that, when construing a provision of

the original Oregon Constitution, we engage in a three-part

analysis. We examine the text in its context, the historical

circumstances of the adoption of the provision, and the case

law that has construed it. Id. Our goal is to ascertain the

meaning most likely understood by those who adopted the

provision. The purpose of that analysis is not to freeze the

meaning of the state constitution in the mid-nineteenth

century. Rather it is to identify, in light of the meaning

understood by the framers, relevant underlying principles

that may inform our application of the constitutional text to

modern circumstances. State v. Davis, 350 Or 440, 446, 256

P3d 1075 (2011).

Article I, section 11, provides, in part, that a defen-

dant in a criminal prosecution has the right “to meet the

witnesses face to face.” It is an unqualified statement, to be

sure. Nevertheless, this court has observed that “[t]here

is nothing to indicate that the framers of our constitution

intended thereby to do away with the well-established

exceptions to the confrontation rule.” State ex rel Gladden

v. Lonergan, 201 Or 163, 177, 269 P2d 491 (1954). Similarly,

Thomas Cooley explained in his treatise on constitutional

law that “[t]he rule that the prisoner shall be confronted

with the witnesses against him does not preclude such docu-

mentary evidence as would be admissible under the rules

of the common law in other cases.” Thomas M. Cooley, A

Treatise on the Constitutional Limitations 318 n 2 (1878).

One so-called common law exception to the confrontation

rule concerned documentary evidence regarding collateral

facts. This court expressly acknowledged that exception to

Article I, section 11, in State v. Saunders, 14 Or 300, 305,

12 P 441 (1886), overruled in part on other grounds by State

v. Marsh, 260 Or 416, 490 P2d 491 (1971), cert den sub nom

Cite as 353 Or 816 (2013) 823

O’dell v. Oregon, 406 US 974 (1972). In Saunders, the court

noted the rule that, ordinarily, a defendant has the right

of confrontation. 14 Or at 304. Citing Cooley’s treatise, the

court then explained that the rule is subject to a number of

exceptions:

“The rule, although sanctioned by constitutional declar-

ation, like all general rules, has its exceptions. It does not

apply to such documentary evidence to establish collateral

facts, as would be admissible under the rules of the common

law in other cases.”

Id. The court did not apply that exception in Saunders, how-

ever, nor, since Lonergan, has the court had a further occa-

sion to consider whether there are other types of hearsay

evidence to which the confrontation right under Article I,

section 11, does not apply.

A.  The Campbell test

In the meantime, though, we have had several occa-

sions to discuss in detail the general confrontation require-

ments of Article I, section 11. Perhaps our most extensive

elaboration of those requirements occurred in Campbell.

The precise issue before the court in that case was the

admissibility of hearsay statements made by a three-year-

old victim of sexual abuse. 299 Or at 647. We concluded that,

although the testimony otherwise would be admissible under

a statutory hearsay exception—OEC 803(18a)—that applied

on its face irrespective of the availability of the declarant,

its admission nevertheless foundered on the state’s failure

to establish the unavailability of the child declarant. Id. at

650-52. We explained that, under Sixth Amendment juris-

prudence, the admission of out-of-court statements made by

a declarant who does not testify at trial violates a defendant’s

confrontation rights unless the declarant is unavailable and

the out-of-court statements have adequate indicia of reli-

ability. Id. at 648 (citing Ohio v. Roberts, 448 US 56, 66, 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 particular, we applied the following analysis

of the United States Supreme Court as articulated in

Roberts:

824 State v. Copeland

“The Confrontation Clause operates in two separate ways

to restrict the range of admissible hearsay. First, in con-

formity with the Framers’ preference for face-to-face accu-

sation, the Sixth Amendment establishes a rule of necessity.

In the usual case * * *, the prosecution must either produce,

or demonstrate the unavailability of, the declarant whose

statement it wishes to use against the defendant. * * *

“The second aspect operates once a witness is shown to

be unavailable. *  * [T]he Clause countenances only hear-

*

say marked with such trustworthiness that ‘there is no

material departure from the reason of the general rule.’

* * *

“The Court has applied this ‘indicia of reliability’

requirement principally by concluding that certain hearsay

exceptions rest upon such solid foundations that admission

of virtually any evidence within them comports with the

‘substance of the constitutional protection.’ * * *

“In sum, when a hearsay declarant is not present for

cross-examination at trial, the Confrontation Clause

normally requires a showing that he is unavailable. Even

then, his statement is admissible only if it bears adequate

‘indicia of reliability.’ Reliability can be inferred without

more in a case where the evidence falls within a firmly

rooted hearsay exception. In other cases, the evidence must

be excluded, at least absent a showing of particularized

guarantees of trustworthiness.” [Roberts, 448 US] at 65-66,

100 S Ct 2531 (citations and footnotes omitted).

State v. Moore, 334 Or 328, 333-34, 49 P3d 785 (2002)

(quoting Roberts in explaining decision in Campbell).

In Campbell, we “adopt[ed] the reasoning of the

Supreme Court of the United States in determining what

constitutes unavailability of a hearsay declarant and what

constitutes adequate indicia of reliability of hearsay declara-

tions to satisfy our state constitutional confrontation clause.”

299 Or at 648. We did so “on independent and separate

state grounds,” thus implicitly concluding that Article I,

section 11, reflected that same reasoning. Id. Applying that

two-part test in Campbell, we concluded that admission of

the challenged evidence had violated the defendant’s right

to meet the witness face to face because the state had not

Cite as 353 Or 816 (2013) 825

demonstrated that the declarant was unavailable or incom-

petent to testify. Id. at 651-52.

We returned to the confrontation requirement of

Article I, section 11, in Moore, where we addressed the admis-

sibility of hearsay statements that a nontestifying witness

made to a police officer who was investigating a possible

crime. Moore, 334 Or at 335. Although there was no show-

ing that the declarant was unavailable to testify, the state

asserted that the evidence was admissible under the excited

utterance exception to the hearsay rule, OEC 803(2), which

does not require the declarant to be unavailable as a con-

dition of admission. The state conceded on appeal that, under

Campbell, the statements were inadmissible under Article I,

section 11, in the absence of proof of the unavailability of the

declarant. The state nevertheless argued that the court

should abandon Campbell in light of more recent develop-

ments in the federal constitutional case law. This court

declined the state’s invitation, emphasizing that the test

endorsed in Campbell was consistent with what the framers

of the Oregon Constitution would have intended with respect

to Article I, section 11. Moore, 334 Or at 338-39. The court

concluded:

“Accordingly, we reaffirm the unavailability requirement

and the methodology articulated in Campbell and subse-

quent cases. Before the state may introduce into evidence

a witness’s out-of-court declarations against a criminal

defendant, the state must produce the witness at trial or

demonstrate that the witness is unavailable to testify.”

Id., at 340-41.

Later, in Birchfield, we again followed the test set

out in Campbell. At issue in Birchfield was whether the

admission of a laboratory report at the defendant’s trial

violated his confrontation right under Article I, section 11,

where the trial court, pursuant to ORS 475.235 (2005),3 had

3

ORS 475.235 (2005) provided, 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.

826 State v. Copeland

allowed the state to introduce the laboratory report without

calling the criminalist who prepared it to testify and with-

out demonstrating that the criminalist was unavailable. In

Birchfield, we explained:

“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 that a defendant do more

changes the right to insist that the state present evidence

the ‘old-fashioned way’ into an obligation to procure a wit-

ness 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 that

the criminalist was unavailable to testify violated defen-

dant’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.”

Birchfield, 342 Or at 631-32.

As explained below, unlike the challenged evidence

in this case, the evidence that we rejected in Birchfield con-

tained investigative facts and opinions involving suspected

criminal activity. Id. at 626. Accordingly, we properly con-

cluded that it was subject to the defendant’s confrontation

right under Article I, section 11. To be sure, in Moore, the

court referred to the unavailability requirement in sweep-

ing terms. Moore, 334 Or at 341. However, as was the

circumstance in Campbell and Birchfield, the court in Moore

did not have any occasion to address the decisive question

“(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 at no cost to the defendant.”

ORS 475.235 was amended in 2007, among other reasons, for the purpose of

deleting subsections (4) and (5). Or Laws 2007, c 636, § 1.

Cite as 353 Or 816 (2013) 827

in this case—that is, whether certain types of documentary

hearsay evidence simply do not implicate the confrontation

right at all. Thus, although we have engaged in extended

analyses of other aspects of the confrontation right expressed

in Article I, section 11, this case requires that we further

consider and elaborate the scope of that right. See State v.

Cavan, 337 Or 433, 98 P3d 381 (2004) (adopting similar

approach in considering scope of impartial jury guarantee

under Article I, section 11).

B.  Animating principles of the confrontation right

As noted, Article I, section 11, provides, in part,

thatan accused in a criminal action has the right “to meet

the witnesses face to face.” Article I, section 11 was adopted

in 1857 without amendment or debate. Claudia Burton

& Andrew Grade, A Legislative History of the Oregon

Constitution of 1857 - Part I (Articles I & II), 37 Willamette

L Rev 469, 517-18 (2001). The provision was derived from

the identically worded article from Indiana’s Constitution

adopted in 1851. Lonergan, 201 Or at 175. The specific

wording of the confrontation clause—“to meet the witnesses

face to face”—can be traced back to the Massachusetts

Constitution of 1780, which was one of the original state

confrontation provisions that led to the similarly worded

confrontation provision in the United States Constitution.

State v. Smyth, 286 Or 293, 297 n 3, 593 P2d 1166 (1979).

The state and federal confrontation provisions were

a response to historical abuses involving the civil-law mode

of criminal procedure that prevailed in 16th and 17th cen-

tury England and colonial America when ex parte exam-

inations were used as evidence in criminal trials. Crawford,

541 US at 43-50. “It was th[o]se practices that the Crown

deployed in notorious treason cases like [Sir Walter]

Raleigh’s; that the Marian [bail and committal] statutes

invited; that English law’s assertion of a right to confronta-

tion was meant to prohibit; and that the founding-era rhetoric

decried.” Id. at 50. The framers were “keenly” aware that

the “[i]nvolvement of government officers in the production

of testimony with an eye toward trial presents unique

potential for prosecutorial abuse.” Id. at 56 n 7. The people

adopted confrontation guarantees to ensure the reliability

828 State v. Copeland

of that evidence by requiring in-court testimony and the

opportunity for cross-examination. Id. at 44-50, 61-62.

Previous decisions by this court are consistent with

that understanding. In Lonergan, the court stated that

“[t]he essential purpose of confrontation * * * is to secure for

the accused the opportunity of cross-examination. However,

it is recognized that there is a secondary advantage to be

gained by the personal appearance of the witness before

the court and jury where his testimony is orally given. This

advantage is stated by Professor Wigmore as follows: ‘the

judge and the jury are enabled to obtain the elusive and

incommunicable evidence of a witness’ deportment while

testifying, and a certain subjective, moral effect is produced

upon the witness.’ 5 Wigmore, Evidence 3d ed 125, § 1395.

“In 5 Wigmore, Evidence 3d ed 127, § 1396, the author

states:

“ ‘* * * [T]he secondary advantage * * * is an advantage to be

insisted upon whenever it can be had. No one has doubted

that it is highly desirable, if only it is available. But it is

merely desirable. Where it cannot be obtained, the require-

ment ceases. * * *’ ”

Lonergan, 201 Or at 173-74 (emphasis omitted). In Smyth,

286 Or at 300, the court amplified:

“In our system a defendant is not tried on a dossier compiled

in prior hearings, no matter how fairly and judiciously

conducted. His guilt must be established at the trial by

evidence that convinces a factfinder beyond a reasonable

doubt. *  * As the United States Supreme Court stated in

*

Barber [v. Page, 390 US 719, 725, 88 S Ct 1318, 20 L Ed 2d

255 (1968)], ‘[t]he right to confrontation is basically a trial

right. It includes both the opportunity to cross-examine

and the occasion for the jury to weigh the demeanor of the

witness.’ ”

Two modern practices most closely resemble the

historical abuses against which the confrontation right

was meant to guard. The first is the use in a criminal pro-

ceeding of statements obtained during police interrogations.

Crawford, 541 US at 52-53, 68. “Statements taken by

police officers in the course of interrogations *  * bear a

*

striking resemblance to examinations by justices of the

peace in England” who were discharging “essentially [an]

Cite as 353 Or 816 (2013) 829

investigative and prosecutorial function.” Id. at 52-53. “The

involvement of government officers in the production of

testimonial evidence presents the same risk, whether the

officers are police or justices of the peace.” Id. at 53.

The second involves the use of prior testimony con-

cerning the guilt of the defendant in lieu of live testimony from

the same witness at the defendant’s present trial. From the

beginning of its jurisprudence concerning Article I, section

11, this court has grappled with that issue. See, e.g., State v.

Moen, 309 Or 45, 64, 786 P2d 111 (1990) (holding that, where

a witness is unavailable for trial, Article I, section 11, is not

violated by admission of transcript of that witness’s prior

sworn testimony, provided statutory prerequisites of OEC

804(3)(a) are met);4 State v. Von Klein, 71 Or 159, 165-69,

142 P 549 (1914) (where unavailable witnesses had been sub-

ject to cross examination by defendant, testimony of wit-

nesses at previous trial of defendant on different charges

held admissible); State v. Meyers, 59 Or 537, 541-42, 117

P 818 (1911) (where unavailable witnesses had been subject

to cross examination by defendant, testimony of witnesses

at a previous trial of the defendant on same charges held

admissible); State v. Walton, 53 Or 557, 562-63, 99 P 431

(1909) (same); State v. Bowker, 26 Or 309, 313, 38 P 124

(1894) (where unavailable witnesses had been subject to

cross examination by defendant, deposition testimony of wit-

ness to which defendant had consented held admissible).

Given that historical context, we conclude that the

framers of the Oregon Constitution likely were influenced

to adopt the Article I, section 11, confrontation requirement

(1) to prevent the government from using ex parte exam-

inations of suspects and witnesses; and (2) to limit and

condition the use of prior testimony in lieu of live witness

testimony at trial. With that background in mind, we turn

to the general category of evidence at issue here, official

4

OEC 804(3)(a) provides:

“The following are not excluded by [OEC 802, the hearsay rule] if the

declarant is unavailable as a witness:

“(a) Testimony given as a witness at another hearing of the same or a

different proceeding *  *, if the party against whom the testimony is now

*

offered *  * had an opportunity and similar motive to develop the testimony

*

by direct, cross, or redirect examination.”

830 State v. Copeland

records, and the applicability of the confrontation right to

such evidence.

C.  The official records hearsay exception

After the general rule prohibiting hearsay crystal-

lized by the beginning of the 18th century, several “classes

of hearsay statements continued to be received as before.”

See John Henry Wigmore, 5 Evidence in Trials at Common

Law § 1426, 256 (James H. Chadbourn rev 1974). Those his-

torical hearsay exceptions included, among others, quali-

fying official records. Id. § 1426 at 257. Official records have

long been “admissible in evidence on account of their public

nature, though their authenticity be not confirmed by the

usual tests of truth; namely, the swearing and the cross

examination of the persons who prepared them.” Gaines v.

Relf, 53 US (12 How) 472, 570, 13 L Ed 1071 (1851). The

official records hearsay exception permitted the admission of

“official registers or records kept by persons in public office

in which they [were] required, either by statute or by the

nature of their office, to write down particular transactions

occurring in the course of their public duties or under their

personal observation.” Evanston v. Gunn, 99 US 660, 666, 25

L Ed 306 (1878). The exception rests on a “presumption that

public officers do their duty.” Wigmore, § 1632 at 618. “The

fundamental circumstance is that an official duty exists

to make an accurate statement, and that this special and

weighty duty will usually suffice as a motive to incite the

officer to its fulfillment.” Id.

To say that such documents are deemed reliable,

though, does not fully answer a confrontation challenge under

Article I, section 11. As discussed, there also is the general

requirement of necessity to consider. In that regard, although

the official records exception is one of the well established

common law hearsay exceptions, it does not require the

unavailability of the out-of-court declarant as a condition

of admission. See OEC 803(8). According to defendant, the

absence of proof of the declarant’s unavailability precluded

admission of the certificate of service in this case because

the fact to be proved—that defendant had notice of the

restraining order—was an element of the contempt charge.

Defendant asserts that hearsay documents such as the

Cite as 353 Or 816 (2013) 831

certificate of service are admissible under a limited exception

to the confrontation right only when they are offered to

establish collateral facts. Defendant is mistaken.

D.  The collateral facts confrontation “exception”

The so-called collateral facts “exception” to the con-

frontation right has been referred to, and applied, in two

distinct patterns of circumstances that do not necessarily

implicate identical principles. In one line of cases, perhaps

best represented by the United States Supreme Court’s

decision in Dowdell v. United States, 221 US 325, 31 S Ct

590, 55 L Ed 753 (1911), courts have determined that the

admission of challenged evidence did not violate a defen-

dant’s confrontation right because the evidence did not con-

stitute the declaration of a witness with respect to the defen-

dant’s guilt or innocence. In Dowdell, the Court considered

a statutory codification of the Sixth Amendment right, as

it appeared in the Philippine Bill of Rights. On his initial

appeal to the Philippine Supreme Court, a question arose

as to whether the defendant had ever entered a plea to the

charge, and whether he had been present, as required,

throughout his trial. The record was unclear as to the

latter question, and, to clarify it, the territorial Supreme

Court directed the trial court clerk to certify (1) whether

he, the clerk, had been present throughout the trial, and

(2) whether, from the clerk’s own observation, the defendant

also had been continuously present. Citing the collateral

facts exception, the Court upheld that procedure against a

confrontation challenge, stating:

“In the present case, the judge, clerk of the court, and the

official reporter were not witnesses against the accused

within the meaning of this provision of the statute. They

were not asked to testify to facts concerning their guilt

or innocence. They were simply required to certify, in

accordance with a practice approved by the supreme court

of the Philippine Islands, as to certain facts regarding the

course of trial in the court of first instance. The taking

of such certification involved no inquiry into the guilt or

innocence of the accused; it was only a method which the

court saw fit to adopt to make more complete the record

of the proceedings in the court below, which it was called

upon to review. Where a court, upon suggestion of the

832 State v. Copeland

diminution of the record, orders a clerk of the court below

to send up a more ample record, or to supply deficiencies in

the record filed, there is no production of testimony against

the accused, within the meaning of this provision as to

meeting witnesses face to face, in permitting the clerk to

certify the additional matter.”

Id., 221 US at 331.

Interestingly, in reaching that conclusion, the Court

relied on the Michigan Supreme Court’s decision in People

v. Jones, 24 Mich 215 (1872), a case that Cooley also cited

in his discussion of the collateral facts exception.5 Jones,

however, involved a different sort of problem. In that case,

the defendant was charged with attempting to set fire to a

clothing store with intent to injure the insurer of the store.

An element for conviction was proof that the insurer was

authorized to do business in the state, which the prosecutor

offered to show by means of a certificate from the Secretary of

State. See Gregory v. State, 40 Md App 297, 313, 391 A2d 437

(1978) (so describing Jones). Against a confrontation objec-

tion, the court stated:

“We do not think the provision of the [Michigan] con-

stitution securing to the defendant in a criminal prosecution

the right ‘to be confronted with the witnesses against him’

can apply to the proof of facts in their nature essentially

and purely documentary, and which can only be proved

by the original, or by a copy officially authenticated in

some way, especially when the fact to be proved comes up

collaterally, as in the present case. In such a case, it would,

in fact, be impossible to apply it, except by requiring the

attendance and testimony of the secretary of state, to the

fact of the filing of the papers, etc., to which he has certified.

We have been cited to no case, and are not aware of any,

which would authorize us to reject the certificates on this

ground.”

Jones, 24 Mich at 225. In contrast to Dowdell, the document

at issue in Jones was proffered to prove an element of the

charged offense. The court nonetheless rejected a confron-

tation challenge because the fact to be proved—that is, the

existence of the certificate itself—was essentially documen-

tary.

5

Cooley, 1 Constitutional Limitations 662 n 4 (8th ed 1927).

Cite as 353 Or 816 (2013) 833

There are other examples of the strands of reasoning

reflected in Dowdell and Jones, but those cases adequately

set the markers for present purposes. The doctrine appears

to have been applied equally to circumstances where, as

in Dowdell, the proffered document was literally collateral

to the trial of the defendant’s guilt or innocence, and to

circumstances where, as in Jones, although pertinent to guilt

or innocence at trial, the proffered document was not central

to the merits of the case and was itself primary evidence

of the asserted fact. Thus, although defendant seems to

believe that, for a document to be “collateral,” it must not

be proffered to prove an element of a criminal charge, Jones

shows that that is not invariably true. Rather, over the years,

those two loosely connected patterns of circumstances have

been classified as a single exception to the confrontation

right that has been applied to various types of documents,

including but not limited to, official records.6

Most importantly for our purposes here, the

collateral facts doctrine actually is not an exception to the

confrontation right at all. Rather, qualifying documents are

admissible in the face of a confrontation objection because

they do not contain the statement of a “witness” for purposes

of the constitutional guarantee. Dowdell, 221 US at 330-31.

E.  Official records and the confrontation right

Contrary to defendant’s view, there are other arrays

of circumstances in which the admission of documentary

evidence has been held not to violate a defendant’s

confrontation right. One such array, embodied in the official

records doctrine, dates back in criminal cases to at least

the eighteenth century in England. That doctrine does not

focus in particular on whether the proffered evidence goes

to an element of a charged offense, as opposed to collateral

6

See, e.g., United States v. Benner, 24 Fed Cas 1084 (1830) (similarly to Jones,

holding that certificate of secretary of state that victim had been accredited as a

foreign minister was admissible in prosecution for arrest of foreign minister); U.S.

v. Bacas, 662 F Supp 2d 481 (ED Va 2009) (relying on Dowdell for conclusion that

“[n]eutral statements that relate only to the operation of a machine” constitute

collateral facts); Sangster v. State, 70 Md App 456, 468, 521 A 2d 811 (1987) (rely-

ing on Dowdell, concluding that statements of physicians in medical records per-

taining to the defendant’s competence to stand trial were not declarations of “ ‘wit-

nesses against’ the defendant”).

834 State v. Copeland

facts. King v. Aickles, 168 Eng Rep 297 (1785), is a leading

authority on point.

In Aickles, the defendant was indicted for the felony

of prematurely returning from overseas exile after being

discharged from prison. Thus, the date of the defendant’s

discharge was an essential element of the charge. To

establish that date, the trial court admitted prison records,

which included a turnkey’s entry showing the defendant’s

release date. 168 Eng Rep at 298. The defendant asserted

that the prosecution should have produced the turnkey

who made the underlying entry rather than the clerk of the

prison papers. But the admission of the evidence was upheld,

because “the law reposes such a confidence in public officers,

that it presumes they will discharge their several trusts

with accuracy and fidelity; and therefore whatever acts they

do in discharge of their public duty may be given in evidence,

and shall be taken to be true.” Id. The court explained that

“[t]he daily book of a public prison is good evidence to prove

the time of a prisoner’s discharge,” and that there was no

difference between civil and criminal cases with respect to

such evidence. Id. at 298 n 1.7

The official records doctrine has long been recog-

nized in the United States as well. In his 1804 criminal-law

treatise, Leonard MacNally explained that “[t]he books of

public offices, and of public bodies, which of course are not

interested in the event of the trial, are admissible evidence.”

L. MacNally, Rules of Evidence on Pleas of the Crown 475

(Philadelphia 1804). In his 1842 treatise, Simon Greenleaf

stated:

“We are next to consider the admissibility and effect of

the public documents, we have been speaking of, as instru-

ments of evidence. And here it may be generally observed

7

See also King v. Rhodes, 168 Eng Rep 115-116, 116 n (b) (1742) (admitting

ship’s musterbook from the Navy Office to prove that a person died and noting

that, in a prior case, an official court entry had been admitted to prove a court

order); King v. Martin, 170 Eng Rep 1094-1095, 1095 (1809) (admitting vestry book

in libel prosecution to prove that a person was appointed treasurer, explaining that

“[t]he books of the Bank of England, and of other public companies are evidence

to a great variety of purposes,” and also noting that public corporation books

involving the government of cities and towns are admissible when the entries are

made by proper officers).

Cite as 353 Or 816 (2013) 835

that to render such documents, when properly authenticated,

admissible in evidence, their contents must be pertinent to

the issue. It is also necessary that the document be made

by the person, whose duty it was to make it, and that the

matter it contains be such as belonged to his province, or

came within his official cognizance and observation. Docu-

ments having these requisites are, in general, admissible

to prove, either prima facie or conclusively, the facts they

recite.”

Simon Greenleaf, 1 A Treatise on the Law of Evidence § 491,

538 (1972 reprint of first ed 1842). See also White v. United

States, 164 US 100, 104, 17 S Ct 38, 41 L Ed 365 (1896)

(observing that discharge entries from jail records “would be

evidence in and of themselves” to show whether a particular

prisoner was present in court, where the defendant was

charged with defrauding the government while employed to

bring witnesses to court); Gaines, 53 US at 570 (recognizing

“public or official writings” exception and noting that “[t]he

same rule prevails in the courts of all of the states of this

Union”); United States v. Johns, 4 US 412, 415, 1 L Ed 888

(CC Pa 1806) (a copy of ship’s manifest that custom-house

officers were required to maintain was “clearly admissible”

to show the value of a ship—that is, harm to the victim—in

criminal prosecution for fraudulently sinking the ship with

intent to defraud insurer); Heike v. United States, 192 F 83

(2d Cir 1911) (public dock records showing cargo weight

admissible in prosecution for importing goods at less than

true weight).

The content of official records that is admissible in

the absence of confrontation is confined to matters that must

be recorded pursuant to an official administrative duty and

may not include investigative or gratuitous facts or opinions.

Salte v. Thomas, 127 Eng Rep 104 (1802) (prison records

admissible to show dates of defendant’s confinement, but not

cause of confinement; distinguishing Aickles accordingly);

Olender v. United States, 210 F2d 795, 801 (9th Cir 1954)

(information set out in an official record “based upon general

investigations and upon information gleaned second hand

from random sources must be excluded”). One of the most

clearly expressed statements of that limitation is found in

Commonwealth v. Slavski, 245 Mass 405, 140 NE 465, 469

836 State v. Copeland

(1923), where, after surveying numerous common law deci-

sions, the court said:

“The principle which seems fairly deducible from [those

decisions] is that a record of a primary fact made by a

public officer in the performance of official duty is or may

be made by legislation competent prima facie evidence as to

the existence of that fact, but that records of investigations

and inquiries conducted, either voluntarily or pursuant to

requirement of law, by public officers concerning causes

and effects and involving the exercise of judgment and

discretion, expressions of opinion, and making conclusions

are not admissible as evidence as public records.”

Greenleaf acknowledged a similar limitation:

“In regard to official registers, we have already stated

the principles, on which these books are entitled to credit;

to which it is only necessary to add, that where the books

possess all the requisites there mentioned, they are admis-

sible as competent evidence of the facts they contain. But it

is to be remembered, that they are not, in general, evidence

of any facts not required to be recorded in them, and which

did not occur in the presence of the registering officer.”

Greenleaf, 2 Evidence § 493 at 540. Likewise:

“In regard to certificates, given by persons in official

station, the general rule is, that the law never allows a

certificate of a mere matter of fact, not coupled with any

matter of law, to be admitted as evidence. If the person was

bound to record the fact, then the proper evidence is a copy

of the record, duly authenticated. But, as to matters, which

he was not bound to record, his certificate, being extra-

official, is merely the statement of a private person, and

will therefore be rejected. So, where an officer’s certificate

is made evidence of certain facts, he cannot extend its effect

to other facts, by stating them also in the certificate; but

such parts of the certificate will be suppressed. The same

rules are applied to an officer’s return.”

Id. § 498 at 544-45.

Turning to the particular type of evidence at issue

in this case, at common law a sheriff’s return of service was

Cite as 353 Or 816 (2013) 837

admissible as an official record in civil and criminal cases.

Wigmore, § 1664 at 769 (sheriff’s returns were admissible

under official-records exception).8 None of the cases on which

defendant relies are to the contrary.9 Disputes arose involving

the scope of the returns, however. The rule was that returns

of service were admissible to prove facts that the officers were

required to certify as part of their official administrative

duties. Driggers v. United States, 21 Okla 60, 95 P 612, 618

(1908). Typically, a sheriff was required to serve process and

make a written return of that fact. See, e.g., General Laws of

Oregon, Civ Code, ch XIII, title III, § 965, p 389 (Deady 1845-

1864) (imposing those requirements). Hence, a statement

that the officer was required to make—such as that the

officer served a subpoena—was admissible. See Driggers, 95 P

at 618 (authorized statements admissible); People v. Lee, 128

Cal 330, 332-33, 60 P 854 (1900) (return would be admissible

to prove service); State v. Daggett, 2 Aik 148 (Vt 1826) (return

on writ was prima facie evidence). A gratuitous statement

of fact or opinion in the return, however—such as that the

subpoenaed person was dead or could not be found within

the county after a diligent search—was not admissible at

common law. See, e.g., Driggers, 95 P at 618 (witness dead);

Lee, 128 P at 331-33 (witness not in county).

The original Deady Code adopted a comparable view.

The code included extensive provisions governing the admis-

sion of a broad range of official records, General Laws of

8

Another treatise that was prominent in the 19th century, but which defen-

dant cites for a different proposition, similarly proclaimed:

“As the sheriff is a public officer and minister of the court, credit is given to the

statement upon his return, as to his official acts.”

Thomas Starkie, Practical Treatise of the Law of Evidence, 436 (4th ed 1876)

9

Defendant heavily relies on Francis v. Wood, 28 Me 69, 15 Shep 69 (1848),

but that case—a civil case—is not on point. Francis contained a single sentence,

unsupported by authority, about the need for in-court testimony in a criminal

case. 28 Me at 75. That was dicta, because the issue was whether the return of

service was conclusive evidence in a civil case. Moreover, the key statement in

the return of service was not a genuine official record: the officer certified that he

arrested a person but that the arrestee was then “subsequently wrested from

[him] by Captain Albert Wood, master of the schooner James, and by him carried

to sea in said schooner.” Id. at 71. That gratuitous entry more closely resembled

a statement in a police report detailing a hindering-prosecution offense than an

official statement narrowly documenting the fulfillment of the officer’s official duty

(which was to make the arrest and document the fact of arrest).

838 State v. Copeland

Oregon, Civ Code, ch VIII, title V, §§ 707-739, p 326-32

(Deady 1845-1864), including a provision making official

records “primary evidence of the facts stated therein.” See

id. § 735, p 331-32 (“[e]ntries in public or other official books

or records, made in the performance of his duty, by a public

officer of this state, or of the United States, or by another

person in the performance of a duty specially enjoined by

the law of either, are primary evidence of the facts stated

therein”). The official records provisions applied in civil and

criminal cases alike. See General Laws of Oregon, Crim

Code, ch XXII, § 210, p 477 (Deady 1845-1864) (“[t]he law

of evidence in civil actions is also the law of evidence in

criminal actions and proceedings, except as otherwise

specially provided in this code”).

It is true that the Deady Code provided that affiants

in civil actions were “witnesses.” See General Laws of Oregon,

Civ Code, ch VIII, title III, § 699, p 324 (Deady 1845-1864)

(defining “witness” as “a person whose declaration under

oath or affirmation is received as evidence for any purpose,

whether such declaration be made on oral examination, or

by deposition or affidavit”). In criminal cases, by contrast, a

statutory confrontation right has always existed, such that,

in the absence of consent to a deposition, “the testimony of a

witness must be given orally, in the presence of the court and

jury.”. General Laws of Oregon, Crim Code, ch XXIII, § 213,

p 478 (Deady 1845-1864).10 However, that requirement was

not offended by the admission of qualifying official records

in a criminal case.

The code provided that “there are four kinds of

evidence,” among them “the testimony of witnesses” and

“writings.” General Laws of Oregon, Civ Code, ch VIII,

§ 658, p 316 (Deady 1845-1864). Thus, the code plainly

distinguished between “witnesses” and “writings.” In addi-

tion, as noted, the code provided that a particular class of

writings—official records—was admissible as “primary evi-

dence of the facts stated therein.” The code defined “primary

evidence” as

“that, which suffices for the proof of a particular fact,

until contradicted and overcome [by] other evidence. For

10

That statutory requirement exists today in identical form. See ORS 136.420.

Cite as 353 Or 816 (2013) 839

example; the certificate of a recording officer is primary

evidence of a record; but it may be afterwards overcome

upon proof that there is no such record.”

General Laws of Oregon, Civ Code, ch VIII, § 664, p 316

(Deady 1845-1864). Thus, an official record was primary evi-

dence of the facts stated therein; it was admissible as a

writing, not as the testimony of a “witness” that was subject

to the confrontation requirement of section 213 of the crim-

inal code. It follows that, when Article I, section 11, was

adopted, the framers of the Oregon Constitution would have

understood that the admission of qualifying official records

prepared pursuant to an administrative duty generally would

not violate the confrontation right of a person accused of a

crime.

To recapitulate: Records made by a public officer

in the performance of an official administrative duty are

primary evidence of the facts stated in them. Although official

records may contain hearsay declarations, such declarations

are not “witness” statements that offend a defendant’s con-

frontation right if they are confined to matters that the

officer is bound by administrative duty to report and do not

include investigative or gratuitous facts or opinions. See,

e.g., Slavski¸ 140 NE at 469; see also Driggers, 95 P at 618;

Lee, 128 P at 331-33. That understanding is consistent with

the principles that animate the confrontation right because

it forecloses the admission, in the guise of official records, of

ex parte examinations of criminal suspects or witnesses or

prior witness testimony that the right was meant to guard

against. It also is consistent with the rationale of our decision

in Birchfield, where we applied Article I, section 11, to more

contemporary circumstances. As discussed, the challenged

documentary evidence in that case—a laboratory report—

contained investigative facts and opinions pertaining to

suspected criminal activity. 342 Or at 626.11 In those

circumstances, we properly concluded that—irrespective of

statutory authority for its admission—the admission of the

report violated the defendant’s confrontation right under

Article I, section 11, in the absence of a showing that the

declarant was unavailable to testify.

11

In fact, the state did not argue in Birchfield that the criminalist’s report was

an official record under OEC 803(8).

840 State v. Copeland

F.  Application

With that understanding in mind, we return to the

issue in this case: Whether, in the absence of a showing

that the declarant was unavailable to testify, the admission

of the deputy sheriff’s certificate of service of the FAPA

restraining order in defendant’s contempt trial violated his

confrontation right under Article I, section 11. The certificate

of service was created pursuant to a statutory duty imposed

by ORS 107.718(8)(b), which provides:

“The county sheriff shall serve the respondent person-

ally [with a FAPA restraining order] unless the petitioner

elects to have the respondent served personally by a private

party or by a peace officer who is called to the scene of a

domestic disturbance at which the respondent is present,

and who is able to obtain a copy of the order within a

reasonable amount of time. Proof of service shall be made

in accordance with ORS 107.720. When the order does not

contain the respondent’s date of birth and service is

effected by the sheriff or other peace officer, the sheriff or

officer shall verify the respondent’s date of birth with the

respondent and shall record that date on the order or proof

of service entered into the Law Enforcement Data System

under ORS 107.720.”

ORS 107.720(1)(a) (2009), in turn, provided, in pertinent

part:

“Whenever a restraining order, as authorized by ORS

107.095 (1)(c) or (d), 107.716 or 107.718, that includes a

security amount and an expiration date pursuant to ORS

107.095, 107.716 or 107.718 and this section, is issued and

the person to be restrained has actual notice of the order, the

clerk of the court or any other person serving the petition

and order shall immediately deliver to a county sheriff a

true copy of the affidavit of proof of service, on which it is

stated that personal service of the petition and order was

served on the respondent, and copies of the petition and

order. * * * Upon receipt of a copy of the order and notice of

completion of any required service by a member of a law

enforcement agency, the county sheriff shall immediately

enter the order into the Law Enforcement Data System

maintained by the Department of State Police and into the

databases of the National Crime Information Center of the

United States Department of Justice. * * * The sheriff shall

provide the petitioner with a true copy of any required proof

Cite as 353 Or 816 (2013) 841

of service. Entry into the Law Enforcement Data System

constitutes notice to all law enforcement agencies of the

existence of the order. * * *.”12

Taken together, those statutes imposed adminis-

trative duties on the deputy sheriff to serve the restraining

order on defendant personally, to make proof of that ser-

vice, and to make corresponding entries in pertinent law

enforcement databases to provide notice of the existence of

the order.13 The deputy issued the certificate pursuant to

those duties in the underlying restraining order proceeding,

and it did not contain any investigative or gratuitous facts

or opinions.14 Accordingly, the certificate did not contain the

statement of a witness so as to trigger defendant’s confron-

tation right under Article I, section 11, and it was not

necessary to establish that the declarant was unavailable as

a condition of its admission. We therefore reject defendant’s

challenge under Article I, section 11.

We emphasize that our holding in this case is a

limited one. This case does not present an occasion to con-

template a broad or universal definition of the term “witness”

for purposes of the confrontation right under Article I, section

11. Moreover, we do not hold that every document that falls

within the official records hearsay exception, OEC 803(8),

necessarily is admissible in the face of a confrontation objec-

tion. Instead, we hold only that the official record in this

case did not contain a witness statement that implicated

defendant’s confrontation right because the declaration with-

in it was confined to an administrative matter that the

deputy sheriff was bound by an official duty to report, and

the record did not include investigative or gratuitous facts

or opinions.

12

The legislature amended ORS 107.720 in 2011, but those amendments apply

only to protective orders entered on or after the effective date of the legislation—

that is, January 1, 2012. Or Laws 2011, ch 269, §§ 1, 9.

13

Although the parties have not raised the issue, we note that, at least

with respect to service of a FAPA order by a person who is not a member of a

law enforcement agency, ORS 107.720(1) appears to require the provision of an

“affidavit” of service; in this case, the proof that the deputy sheriff made was a

“certificate” of service. Defendant does not assert that the proof did not comply

with the statute and, accordingly, we do not consider the matter further.

14

Again, the latter point distinguishes this case from Birchfield, where the

criminalist’s report was prepared to investigate and prosecute criminal conduct.

842 State v. Copeland

III.  SIXTH AMENDMENT ANALYSIS

We turn to defendant’s Sixth Amendment challenge.

In Crawford, the United States Supreme Court held that

the confrontation clause prohibits the admission of out-of-

court statements that are testimonial in nature, unless the

witness appears at trial or, if the witness is unavailable, the

defendant had a prior opportunity for cross-examination. 541

US at 53-54. As discussed, the state does not contend that

Schweitzer was unavailable or that defendant had a prior

opportunity to cross-examine him, so the only question is

whether the officer’s certificate of service was testimonial.

The state argues that it was not testimonial because (1) it

wasnot generated in response to a law enforcement or other

prosecutorial request, and (2) it falls under the public records

hearsay exception, which, the state argues, is inherently non-

testimonial.

A.  Documentary evidence and the Crawford test

In Crawford, the Court described a testimonial state-

ment as one made by an “accuser” that can be characterized as

“a solemn declaration or affirmation made for the purpose

of establishing or proving some fact.” Id. at 51 (internal

quotation marks omitted). In Melendez-Diaz v. Massachusetts,

557 US 305, 129 S Ct 2527, 2538-40, 174 L Ed 2d 314 (2009),

the Court applied Crawford to documents, holding that

sworn certificates prepared to show the results of a forensic

analysis of seized substances in that case were testimonial

statements. In so holding, the Court rejected an argument

that all evidence falling within the well-established hear-

say exception for business records at common law is admis-

sible absent confrontation. Melendez-Diaz, 557 US at 321.

Business and public records generally do not raise confron-

tation concerns, the Court reasoned, “not because they qual-

ify under an exception to the hearsay rules, but because—

having been created for the administration of an entity’s

affairs and not for the purpose of establishing or proving

some fact at trial—they are not testimonial.” Id. at 324.

The Court in Melendez–Diaz further explained

that the forensic certificates were made for the purpose of

Cite as 353 Or 816 (2013) 843

proving a fact at trial: (1) they were sworn affidavits, thus

constituting formalized materials that contained “the precise

testimony the analysts would be expected to provide if called

at trial,” id. at 311; (2) they were prepared in response to

an investigative law enforcement request, id.; and (3) under

the relevant Massachusetts statute requiring production

of the forensic certificates, the “sole purpose” of creating

the certificates was to provide prima facie evidence in a

criminal proceeding. Id. Based on those factors, the Court

concluded that the forensic certificates were documents

created specifically for use at trial. Therefore, the Court

concluded that, unlike business and public records created

for an administrative purpose, the certificates constituted

testimonial statements subject to confrontation under the

Sixth Amendment. Id.

Although Melendez-Diaz rejected the premise that

all documents falling within the historical hearsay exception

are admissible without confrontation, the certificate of ser-

vice at issue here is readily distinguishable from the forensic

certificates held to be testimonial in Melendez-Diaz. First,

the certificate of service was not prepared in response to

a request made by law enforcement during the course of

an investigation. In fact, the violation of the restraining

order did not occur until well after service was completed.

Further, unlike in Melendez-Diaz, the statutes that required

production of the certificate of service in this case, ORS

107.718 and ORS 107.720, demonstrate that the certificate

was made for the primary purpose of “administration of

an entity’s affairs.” Melendez-Diaz, 557 US at 324. As dis-

cussed, under ORS 107.718(8)(b), the county sheriff or

another peace officer—in this case a deputy sheriff—has

a legal duty to personally serve a restraining order and

to make proof of that service. The routine fulfillment of

those duties ensures that respondents in restraining order

proceedings receive the notice to which they are statutorily

and constitutionally entitled, establishes a time and manner

of notice for purposes of determining when the order expires

or is subject to renewal, and assures the petitioner that the

respondent knows of its existence.

Later decisions of the Court reinforce those dis-

tinctions. In Bullcoming v. New Mexico, ___ US ___, 131 S Ct

844 State v. Copeland

2705, 180 L Ed 2d 610 (2011), the question presented was

whether a “certificate of analyst” containing the results of a

blood-alcohol content (BAC) test administered after a DUII

arrest required the testimony of the analyst who conducted

the gas chromatograph test. Id. at 2710-11. The trial court

had admitted the certificate as a business record, and allowed

its introduction through the testimony of “an analyst who did

not sign the certification or personally perform or observe

the performance of the test reported in the certification.” Id.

at 2713. The Court rejected the suggestion that the report

was nontestimonial:

“In all material respects, the laboratory report in this

case resembles those in Melendez-Diaz. Here, as in Melendez-

Diaz, a law-enforcement officer provided seized evidence

to a state laboratory required by law to assist in police

investigations[.] *  * Like the analysts in Melendez-Diaz,

*

[the analyst] tested the evidence and prepared a certificate

concerning the result of his analysis. * * * Like the Melendez-

Diaz certificate, [the certificate here] is ‘formalized’ in a

signed document. * * * In sum, the formalities attending the

‘report of blood alcohol analysis’ are more than adequate to

qualify [the analyst’s] assertions as testimonial.”

Id. at 2717 (citations omitted). Justice Sotomayor concurred.

In her view:

“To determine if a statement is testimonial, we must decide

whether it has ‘a primary purpose of creating an out-of-

court substitute for trial testimony.’ * * * When the ‘primary

purpose’ of a statement is ‘not to create a record for trial,’

‘the admissibility of the statement is the concern of the

state and federal rules of evidence, not the Confrontation

Clause.’ ”

Bullcoming, 131 S Ct at 2720 (Sotomayor, J., concurring)

(quoting Michigan v. Bryant, 562 US ___, ___, 131 S Ct 1143,

1155, 179 L Ed 2d 93 (2011) (internal citations omitted).

Noting that Bullcoming was “not a case in which the State

suggested an alternate purpose, much less an alternate

primary purpose, for the BAC report,” such as to provide

for medical treatment, Justice Sotomayor concluded that the

primary purpose “is clearly to serve as evidence,” and its

introduction without confrontation was therefore in error.

Id. at 2722-23 (emphasis omitted).

Cite as 353 Or 816 (2013) 845

Williams v. Illinois, ___ US ___, 132 S Ct 2221, 183

L Ed 2d 89 (2012), is the latest Supreme Court decision

addressing a confrontation clause challenge to evidence of a

laboratory record. In that case, an expert witness testified

in a rape trial that a DNA profile produced by a private

laboratory from vaginal swabs taken from the rape victim

matched a DNA profile produced by a police laboratory from

a sample of the defendant’s blood. 132 S Ct at 2227-28. A

plurality of the Court concluded that the testimony did

not violate the confrontation clause because “[o]ut-of-court

statements that are related by the expert solely for the pur-

pose of explaining the assumptions on which that opinion

rests are not offered for their truth and thus fall outside the

scope of the Confrontation Clause.” Id. at 2228. Significantly

for this case, the plurality further held that, even if the pros-

ecution had elicited testimony about the laboratory report

to establish its truth, the confrontation clause would not

have been violated. Id. at 2242-43. The plurality applied an

objective test to determine “the primary purpose that a

reasonable person would have ascribed to the [out-of-court]

statement, taking into account all of the surrounding cir-

cumstances.” Id. at 2243. Because the primary purpose of

the laboratory report “was not to accuse [the defendant] or

to create evidence for use at trial,” the laboratory tech-

nicians had no incentive to fabricate the report, and the

Court concluded that use of the report “  ‘bears little if any

resemblance to the historical practices that the Confrontation

Clause aimed to eliminate.’ ” Id. at 2243-44 (quoting Bryant,

___ US at ___, 131 S Ct at 1167 (Thomas, J., concurring).

Although a majority of the Williams Court agreed

that an assessment of the primary purpose of an out-of-court

statement is required to determine whether it is testimonial,

a majority did not agree on the scope of that inquiry. The

plurality asked whether the statement had “the primary

purpose of accusing a targeted individual of engaging in

criminal conduct.” 132 S Ct at 2242; see also id. at 2250-51

(Breyer, J., concurring). Justice Thomas disputed that the

primary purpose of a testimonial statement must be to tar-

get an individual rather than to establish a fact for poten-

tial use in a criminal prosecution. Id. at 2261-63 (Thomas, J.,

846 State v. Copeland

concurring). Although he disagreed with the proposition that

the laboratory was not primarily concerned with producing

evidence for a criminal prosecution, he concurred in the judg-

ment because, in his opinion, a testimonial statement must

bear indicia of solemnity, which the laboratory report lacked.

Id. at 2261-65 (Thomas, J., concurring). The dissenting jus-

tices did not disavow the primary purpose test but criticized

the plurality’s description of it as including an inquiry

whether the speaker intended to target a particular person.

Id. at 2272-74 (Kagan, J., dissenting). We need not dwell on

those disagreements further, however, because, as we will

explain, under any iteration of the applicable test, we con-

clude that the primary purpose of the return of service in

this case was administrative, not prosecutorial.

B.  Application

As discussed, the primary purpose for which the

certificate of service in this case was created was to serve

the administrative functions of the court system, ensuring

that defendant, the respondent in the restraining order

proceeding, received the notice to which he is statutorily and

constitutionally entitled, establishing a time and manner of

notice for purposes of determining when the order expires

or is subject to renewal, and assuring the petitioner that the

subject of the order knew of its existence. It was foreseeable

that the certificate might be used in a later criminal pros-

ecution to furnish proof that defendant had notice that the

order had been entered against him. However, the more

immediate and predominant purpose of service was to ensure

that defendant could—and would—comply with the order—

that is, avoid a violation, consistently with the primary goal

of the FAPA process, which is “abuse prevention,” not pun-

ishment. See ORS 107.700 (“ORS 107.700 to 107.735 shall be

known and may be cited as the ‘Family Abuse Prevention

Act.’ ”).

Similarly, federal courts have held that warrants of

deportation are nontestimonial when introduced in a later

prosecution for illegal reentry into the United States. To

Cite as 353 Or 816 (2013) 847

convict a person of illegally reentering the United States,

8 USC § 1326 (2006), the government must prove that the

defendant was previously deported. United States v. Burgos,

539 F3d 641, 643 (7th Cir 2008). To prove the defendant’s

prior deportation, the government will typically offer a war-

rant of deportation, a document signed by an immigration

official attesting to the fact that the official observed the

deportee leaving the country. United States v. Torres-

Villalobos, 487 F3d 607, 612 (8th Cir 2007). Such warrants

are analogous to the returns of service challenged here: In

each case, a document is created and kept in a public agency’s

ordinary course, with an attestation by a public official

that he or she did something (served the defendant) or saw

the defendant do something (leave the country), and is offered

to prove an element of a crime in a subsequent prosecution.

The warrants of deportation, both pre- and post-Melendez-

Diaz, have consistently been held to be nontestimonial because

their “primary purpose is to maintain records concerning

the movements of aliens and to ensure compliance with

orders of deportation, not to prove facts for usein future

criminal prosecutions.” Torres-Villalobos, 487 F3d at 613; see

also United States v. Garcia, 452 F3d 36, 42 (1st Cir 2006);

Burgos, 539 F3d at 644-645; United States v. Diaz-Gutierrez,

354 Fed Appx 774, 775 (4th Cir 2009), cert den, 559 US 959,

130 S Ct 1560, 176 L Ed 2d 147 (2010) (per curiam) (reaf-

firming warrants of deportation as nontestimonial after

Melendez-Diaz).

Finally, we reject defendant’s suggestion that the

certificate of service falls within the core class of testimonial

statements identified in Crawford, in particular, those state-

ments “made under circumstances which would lead an

objective witness reasonably to believe that the statement

would be available for use at a later trial.” 541 US at 52.

In Melendez-Diaz, while referring to the quoted “objective

witness” formulation, the Court repeatedly emphasized

that it was the purpose for which the forensic certificates

were created that rendered them testimonial. See 557 US

at 311 (“sole purpose of the affidavits was to provide ‘prima

facie evidence’ ”); id. at 324 (certificates’ sole purpose was to

pro-vide evidence against the defendant); id. at 324 (certifi-

cates were “prepared specifically for use at petitioner’s trial”).

848 State v. Copeland

Because the Court has not held, nor otherwise indicated, that

a document primarily created for an administrative purpose

could be rendered testimonial merely by the possibility that

it might be used in a later criminal prosecution, we likewise

refrain from doing so in this case. See United States v.

Orozco-Acosta, 607 F3d 1156, 1164 (9th Cir 2010), cert den,

___ US ___, 131 S Ct 946, 178 L Ed 2d 782 (2011) (“Melendez-

Diaz cannot be read to establish that the mere possibility

that *  * any business or public record *  * could be used

*  *

in a later criminal prosecution renders it testimonial under

Crawford.”); United States v. Mendez, 514 F3d 1035, 1046

(10th Cir), cert den, 553 US 1044 (2008) (similar).

It follows that the certificate of service was not

testimonial, and its admission did not violate defendant’s

Sixth Amendment confrontation rights.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.