Prosecution's failure to subpoena victim to trial results in successful appeal

On March 19, 2011, the Oregon Court of Appeals overturned the Linn County conviction of Steve Dwain Simmons Jr. Mr. Simmons was found guilty of the class C felony crime of Assault in the Third degree after the trial judge allowed the jury to hear hearsay statements made by the "victim" of the assault even though he failed to testify personally in front of the jury.

The Court of Appeals held that the admission of the hearsay statements of the victim against Mr. Simmons was reversible error because there was no showing that the victim was "unavailable for trial."

Generally speaking, when someone is charged with a crime, they have the right to "confront the witnesses" against them. This "right" is secured by both the 6th Amendment to the US Constitution and Article I, section 11 of the Oregon Constitution. This usually ensures that the witnesses must testify in open court. In some limited circumstances, the out-of-court statements of a witness may be admitted to a jury in a criminal case when the prosecution can demonstrate that the witness is "unavailable."

In Mr. Simmons' case, the prosecution made such an argument. The Court of Appeals threw out the conviction, however, because it found the prosecution had not made a good faith effort to make sure the witness appeared. The government did not serve the witness with a court ordered a subpoena to appear and made only half hearted attempts prior to Mr. Simmons' trial to even locate the witness. In short, the prosecution did not do enough to try to secure the witness' presence at trial.

The case is an important reminder that it is the government's burden to prove its criminal charges beyond a reasonable doubt and that it must make every effort to avail itself of the best possible evidence. In many assault cases, particularly those that involve domestic violence, the alleged victim may be reluctant to testify. Regardless of the reason for their reluctance, it is the duty of the prosecution to make every effort to secure their appearance at trial to ensure the criminal defendant is afforded a fair shake.

The case is also an important reminder that a criminal case does not necessarily end with a trial court conviction. Here, thanks to good trial level lawyering, Mr. Simmons was able to bring a successful case on appeal and have his constitutional rights vindicated.

If you are charged with a crime on Oregon, or if you are a witness or victim to a crime in Oregon and have questions regarding your rights in the ensuing proceeding, it is important you discuss your case with an experienced attorney. An experienced attorney can help you identify the issues you will need to raise and preserve before the trial court in the event you must take an appeal.


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