State v. Copeland , 353 Or. 816 ( 2013 )

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.