No. 7	                       February 13, 2014	737

               IN THE SUPREME COURT OF THE
                     STATE OF OREGON

                    STATE OF OREGON,
                    Respondent on Review,
                               v.
               TYKE THOMAS SUPANCHICK,
                     Petitioner on Review.
           (CC 200525537; CA A139011; SC S060017)

    On review from the Court of Appeals.*
  Argued and submitted November 6, 2012; resubmitted
January 7, 2013.
   Joshua B. Crowther, Chief Deputy Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the brief for petitioner on review. With him on the brief was
Peter Gartlan, Chief Defender.
   Michael A. Casper, Deputy Solicitor General, Salem,
argued the cause and filed the brief for respondent on review.
With him on the brief were Ellen F. Rosenblum, Attorney
General, and Anna M. Joyce, Solicitor General.
   Before Balmer, Chief Justice, and Kistler, Walters,
Linder, Brewer, and Baldwin, Justices.**
    KISTLER, J.
   The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.




______________
	**  Appeal from Lane County Circuit Court, Gregory G. Foote, Judge. 245 Or
App 651, 263 P3d 378 (2011).
	  **  Landau, J., did not participate in the consideration or decision of this case.
738	                                                   State v. Supanchick

     Defendant appealed a trial court ruling admitting statements made by the
victim in defendant’s trial for aggravated murder under Oregon’s codification of
the forfeiture by wrongdoing exception to hearsay, OEC 804(3)(g). OEC 804(3)
(g) allows hearsay statements to be admitted against a party who commits a
wrongdoing with the intention and effect of making the declarant unavailable as
a witness. Defendant objected to the admission of the testimony on the ground
that the trial court’s factual findings were insufficient for the statements to be
admitted under OEC 804(3)(g) and on the ground that admitting the statements
violated his confrontation rights under the state and federal constitution, as well
as the Due Process Clause. The Court of Appeals affirmed the trial court’s ruling.
Held: (1) evidence in the record supported the trial court’s factual finding that
one reason defendant killed his wife was to eliminate her as a witness; (2) OEC
804(3)(g) does not require that courts conduct a separate inquiry into the reli-
ability of testimony admitted under the rule; (3) OEC 804(3)(g) does not require
that the state establish that the statements were made during an “ongoing mat-
ter,” that defendant’s “primary” purpose in committing the wrongdoing was to
prevent the declarant from being a witness, or that defendant had a preconceived
plan or design to eliminate the victim as a witness; (4) when a defendant has
intentionally made a witness unavailable to testify, the defendant loses the right
to object that that evidence should not be admitted on state constitutional con-
frontation grounds, and Article I, section 11, does not require a separate inquiry
into reliability; (5) similarly, the Sixth Amendment does not require a separate
inquiry into evidentiary reliability when a statement is admitted under the doc-
trine of forfeiture by wrongdoing; (6) defendant failed to show that the admitted
statements did not meet the minimum standards of reliability required by the
Fourteenth Amendment’s Due Process Clause.
    The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
Cite as 354 Or 737 (2014)	739

	          KISTLER, J.,

	         In 2005, the Oregon legislature added a new excep-
tion to the prohibition against the admission of hearsay evi-
dence. Or Laws 2005, ch 458, § 1; see OEC 804(3)(g). Under
that exception, a declarant’s hearsay statements are admis-
sible against a party “who engaged in * * * wrongful conduct
that was intended to [and did] cause the declarant to be
unavailable as a witness.” OEC 804(3)(g).1 Throughout this
litigation, defendant has argued that his wife’s hearsay state-
ments do not come within the terms of that exception and
that, if they do, admitting her statements violated his rights
under the state and federal constitutions. The trial court
disagreed, a jury convicted defendant of aggravated murder,
and the Court of Appeals affirmed the resulting judgment.
State v. Supanchick, 245 Or App 651, 263 P3d 378 (2011). We
allowed defendant’s petition for review and now affirm the
Court of Appeals decision and the trial court’s judgment.
                               I
	         The state charged defendant with aggravated mur-
der for killing his wife. The evidence showed that defendant
and his wife were estranged and that, shortly before her
death, his wife had obtained a restraining order against
defendant based on allegations that defendant had phys-
ically and emotionally abused her.2 One week after the
trial court issued the restraining order, defendant filed for
divorce.

	1
      OEC 804(3)(g) provides that the following hearsay statements are admissible:
     “A statement offered against a party who engaged in, directed or otherwise
     participated in wrongful conduct that was intended to cause the declarant to
     be unavailable as a witness, and did cause the declarant to be unavailable.”
The state argued at trial that the wife’s hearsay statements were also admissible
under OEC 804(3)(f), but it has not pursued that argument on appeal or review.
Rather, as the state recognizes, Giles v. California, 554 US 353, 128 S Ct 2678,
171 L Ed 2d 488 (2008), raises substantial doubts about the constitutionality of
OEC 804(3)(f).
	2
        Midway through trial, the state sought to introduce statements that defen-
dant’s wife had made both in support of the restraining order and in preparation
for seeking the restraining order. In deciding whether that evidence was admis-
sible under OEC 804(3)(g), the trial court held an OEC 104 hearing and based
its factual findings in that hearing on the evidence that previously had been
admitted at trial. We state the facts consistently with the trial court’s rulings in
the OEC 104 hearing.
740	                                                    State v. Supanchick

	        Approximately one month after defendant’s wife
had obtained the restraining order and three weeks after
defendant had filed for divorce, defendant devised a plan
to persuade his wife to recant the allegations against him,
give him custody of their daughter, and leave the state.
Defendant believed that his wife had no real interest in
their daughter, had been indifferent to their daughter’s
safety, and “just want[ed] to have money and go party[.]”
Defendant also believed that, if he offered his wife some
money, he could persuade her to accept his offer—namely, to
recant the allegations, give him custody of their daughter,
and leave Oregon. One problem, from defendant’s perspec-
tive, was how to speak to his wife without her calling 9-1-1
and reporting that he was violating the restraining order.
	        At eleven o’clock one night, defendant took a loaded
shotgun, duct tape, and a knife to his wife’s house. He
opened the door and went up to her bedroom, where she was
reading a book in bed. He walked in carrying the shotgun,
told her that “we’re going to talk about this[, a]nd then [he]
put the tape on her mouth so she wouldn’t scream and *      * *
taped her arms.” When asked whether he had pointed the
shotgun at her, defendant replied, “Didn’t need to.”
	        As defendant later explained, his plan was to “go
through the door real quick [and] subdue her to the point
where *  * she’s not a threat” to call 9-1-1 and report his
         * 
violation of the restraining order.3 Defendant believed that,
if he had a chance to talk with his wife before she could call
9-1-1, he would be able to persuade her, relatively quickly,
to accept to his offer. Going in, defendant believed that the
whole operation could be accomplished in “[a]n hour, tops.”
	       Things did not go according to plan. His wife would
not agree to give defendant custody of their daughter, nor
would she agree to leave the state. The discussion that
defendant had anticipated would be accomplished quickly
turned into a four-hour “talk.” As defendant explained, “we
started talking way too much.” He still believed, however,

	3
      As defendant put it earlier in his confession, his initial actions were
intended to be a “quick fix. * * * When you go in, you zip tie them and you flex-cuff
them and tape their mouth,” a course of action that he described as standard
operating procedure for stabilizing a situation.
Cite as 354 Or 737 (2014)	741

that they “were getting stuff out” and having a meaningful
conversation. He explained:
   “She wasn’t gonna—she wasn’t gonna leave, but we were
   making headway as far as her saying, Yeah, a lot of stuff
   [she was] doing isn’t fair, and you—you know, [she] do[es]
   need to give [me my] money [back]. [She] shouldn’t be
   keeping this money [that, in defendant’s view, his wife had
   wrongfully taken from him].”
	         One issue that arose was how, once defendant knew
that his wife would not agree to all his terms, he could keep
her from reporting that he had violated the restraining
order. Defendant explained that he thought that they would
be able to find a middle ground; he would leave, she would
“just * * * drop it,” and “she will find something that makes
it—makes it a bonus to her, you know.” When asked later if
he would have let his wife walk out of the house if she had
asked to do so, defendant answered, “No, because we hadn’t
reached a—a— *  * Not before there was some—not before
                    * 
there was a hard copy agreement * * *.”
	        After defendant had been at his wife’s house for sev-
eral hours, his mother called him on his wife’s cell phone, but
he did not answer. He also saw his sister’s husband outside
the house, but he did not go out to talk to him. Defendant
explained that he “wasn’t there to talk to them. I was—we
[defendant and his wife] were having a good conversation.”
He believed that he was “getting through to [his wife] that
she was really not helping [their daughter] right now.” Then,
defendant heard “heavy” knocking and people announcing
that they were police officers. They asked his wife to come to
the door, but she shouted, “I can’t. I can’t come to the door.”
At that point, defendant heard “the noise, this noise.” As the
officers kicked open the door of his wife’s house, defendant
picked up the shotgun, put a round in the chamber, and shot
his wife.
	        When the officers spoke with defendant afterwards,
they asked him two separate but related questions. The
first question was why he had not let his wife leave once
the officers got there. The second was why he had shot
her. In answering the first question, defendant explained,
“[b]ecause there had to be a way, a better option than [letting
742	                                         State v. Supanchick

her walk out]. A better option because now I’m gonna go to
jail for whatever, for being—violating parole [sic] and having
a gun there.” He added that he was not “sitting there weigh-
ing it. It was like, you know, there’s got to be a better way to
fix this or a better way to go—for—I don’t know. Better way
for my daughter to be safe and [for me] not [to] go to jail.”
When asked whether “shooting her [was] that better way,”
defendant answered, “I wasn’t saying that at all.”
	         When asked why he shot his wife, defendant ini-
tially either did not or could not accept the possibility that
he had shot her. Later, he acknowledged that, because no one
else was in the house, he must have killed her. Defendant
then told the officers that, when he heard “this noise,” he
“did a failure drill.” As defendant explained, a failure drill is
appropriate when you have “no chance of the—whatever, you
know, what—your target is coming at you.” He added that
“[i]t’s the most successful way of stopping whatever’s coming
at you.” Having explained that a failure drill is intended
to stop the “target * * * coming at you,” defendant could not
explain why he shot his wife rather than the officers coming
through the door.
	        In ruling on the admissibility of statements that
defendant’s wife had made in applying for a restraining
order and also notes that she had made for that purpose, the
trial court explained that OEC 804(3)(g) requires “a finding
*  * by the court that—that the purpose—that the defen-
  * 
dant killed the victim with the purpose of eliminating her
as a witness.” The trial court then found:
   “I think that the evidence so far suggests by a preponder-
   ance that that was a purpose. * * * I think that’s very con-
   fusing as you read—as you read the transcript and listen
   to the defendant’s confession. * * * But I am satisfied that at
   least by a preponderance that was a reason for the—for the
   homicide and I think that that satisfies the requirement
   under [OEC] 804(3)(g). I don’t think that that rule requires
   that it be the primary purpose. I think that it has to be a
   purpose, and I think that in all probability it is.”
The court also reasoned that, although OEC 804(3)(g) does
not require a showing that the statements are reliable, reli-
ability “does come up insofar as analyzing [the statements]
Cite as 354 Or 737 (2014)	743

for their relevance” under OEC 401 and also in analyzing
whether the statements’ probative value outweighs their
prejudicial value under OEC 403. Cf. State v. Lawson/
James, 352 Or 724, 750-51, 757, 291 P3d 673 (2012) (explain-
ing that OEC 403 and other evidence code provisions “artic-
ulate minimum standards of reliability intended to apply to
many types of evidence”).
	         Having concluded that the wife’s statements were
admissible under OEC 804(3)(g), the court then considered
whether those statements met the requirements of other
provisions of the evidence code. It initially excluded some
of the wife’s notes because they were too cryptic to be rele-
vant. See OEC 401. It then excluded all the remaining state-
ments because, taken as a whole, those statements were
more prejudicial than probative. See OEC 403. Although
the court ruled that the statements, taken as a whole, were
not admissible, it invited the state to identify specific state-
ments that it wanted to introduce. The state did so, and the
trial court ruled that some of the statements in the petition
for a restraining order and also some of the notes that the
wife had made complied with OEC 403 and were admissi-
ble. Those notes showed that defendant had told his wife
“to buy a wooden spoon so that he could beat [her] with it,”
that “he’d already dug the hole for [her] for when he ‘got rid
of [her],’  and “that he had threatened to ‘slit [her] throat
          ”
bilaterally.’ ” After considering that and other evidence, the
jury convicted defendant of aggravated murder, and the
Court of Appeals affirmed the resulting judgment.
                                       II
	        The issues on which defendant focuses on review
all arise out of the trial court’s ruling admitting his wife’s
hearsay statements. Defendant argues that the evidence
was insufficient to establish the mental state necessary to
invoke OEC 804(3)(g)—namely, that he engaged in wrong-
doing with the intent “to cause [his wife] to be unavailable
as a witness.”4 Beyond that, defendant contends that the
common-law doctrine of forfeiture by wrongdoing required
not only that a party purposefully have procured the witness’s
	4
      Defendant does not dispute that the trial court could find that his conduct
was “wrongful” and that his conduct caused his wife to be unavailable.
744	                                                   State v. Supanchick

absence but also that any hearsay statements admitted under
that doctrine have an independent guarantee of reliability.
Defendant reasons that OEC 804(3)(g), Article I, section 11,
of the Oregon Constitution, and the Sixth Amendment to the
United States Constitution all incorporate the common-law
requirement that any statements admitted under the for-
feiture doctrine be reliable. Finally, defendant argues that
his wife’s statements were so unreliable that their admis-
sion violated the Due Process Clause of the Fourteenth
Amendment.5 Defendant reasons that the admission of his
wife’s statements prejudiced him because those statements
undercut his defense that he had not intentionally shot his
wife.6
                              A
	        Defendant’s sufficiency argument may turn on one
of two propositions. Defendant may be arguing that the evi-
dence is insufficient to support the finding that the trial
court actually made (that a purpose in killing his wife was to
eliminate her as a witness). Alternatively, defendant’s argu-
ment may turn on the proposition that the evidence does not
support the finding that, in his view, the trial court should
have made. Specifically, his argument appears to assume
that OEC 804(3)(g) required the trial court to find that he
intended to prevent the admission of his wife’s testimony in
an “ongoing matter,” that he acted based on a preconceived
plan or design, and that his “primary purpose” in killing her
was to eliminate her as a witness.
                                         1
	       For the wife’s hearsay statements to be admissible
under OEC 804(3)(g), the state had to show that defendant
had “engaged * * * in wrongful conduct that was intended to
[and did] cause the [wife] to be unavailable as a witness.” See
OEC 804(3)(g) (stating that requirement).7 What defendant
	5
       We limit our discussion to those issues.
	6
       One of defendant’s theories at trial was that he shot his wife while he was
suffering from post-traumatic stress disorder and that, as a result, he lacked the
capacity to act intentionally. His wife’s statements permitted the jury to infer
that he acted intentionally when he shot her.
	7
       OEC 804(3)(g) requires proof of a specific intent—an intent to make the
declarant unavailable as a witness. The trial court correctly focused on defendant’s
purpose in killing his wife in determining whether he had the requisite intent.
Cite as 354 Or 737 (2014)	745

intended is a question of fact, and the issue for the trial court
was whether the state had proved defendant’s intent by a
preponderance of the evidence. See State v. Carlson, 311 Or
201, 209, 808 P2d 1002 (1991) (identifying the standard of
proof for preliminary questions of fact bearing on the admis-
sibility of evidence). In this case, the trial court used the
correct standard of proof: It found by a preponderance of the
evidence that one reason why defendant killed his wife was
to eliminate her as a witness. We are bound by that factual
finding if there is evidence in the record to support it. See
State v. Cunningham, 337 Or 528, 538, 99 P3d 271 (2004)
(stating the standard of review for preliminary factual find-
ings bearing on the admission of evidence).

	        As the trial court implicitly recognized, the evi-
dence permitted a finding that defendant had more than
one purpose in killing his wife. For example, the evidence
permitted a finding that defendant killed his wife to pre-
vent her from retaining custody of their daughter; that is,
he believed that, while he had been away in the military,
his wife had neglected their daughter and endangered her
safety. His wife would not agree to give up custody of their
daughter, and the trial court could have found that defen-
dant killed his wife to ensure that their daughter would not
remain in her care.

	        There was also evidence to support the trial court’s
finding that one purpose in killing his wife was to make
her unavailable as a witness. When the officers spoke with
defendant shortly after he killed his wife, he told them that,
when he first entered his wife’s home, he had taken elabo-
rate steps to prevent her from calling 9-1-1 and reporting
that he was violating the restraining order. He had con-
fronted her with a shotgun, bound her hands, and put tape
over her mouth. Moreover, he believed that he could per-
suade his wife, in return for giving her money, to recant the
allegations against him, give him custody of their daughter,
and leave the state.

	        Defendant told the officers that, when it became
clear that his wife would not agree to all the terms of his
offer, he still thought that they could reach a compromise
746	                                      State v. Supanchick

where he could give her something and she would “just * * *
drop it”—namely, his violation of the restraining order. He
was clear, however, that he would not let his wife leave, even
if she had asked to do so, until he had a “hard copy agree-
ment.” The trial court reasonably could find that defendant
feared that, if his wife left without having signed a “hard copy
agreement,” she would report his violation of the restraining
order, he would go to prison for having violated the order,
and his wife would retain custody of their daughter.

	        Even after the police arrived and were asking
defendant to let his wife go, defendant explained that he
continued to think that there had to be a better option than
letting his wife walk out of the house. To his mind, if he let
her walk out, “I’m gonna go to jail for whatever, for being—
violating parole [sic] and having a gun there.” As he
explained, there had to be a “[b]etter way for my daughter
to be safe and [for me] not [to] go to jail.” One constant
theme that ran through defendant’s confession was his con-
cern that, without an agreement, his wife would report his
violation of the restraining order, he would go to jail as a
result, and his daughter would not be safe. Given that evi-
dence, the trial court permissibly found that one reason why
defendant killed his wife was to prevent her from reporting
what he had done.

	        To be sure, it would not have taken a great deal of
reflection for defendant to realize that the consequences of
killing his wife were far graver than the consequences of vio-
lating the restraining order. But defendant acted in a split
second as the officers kicked open the door to his wife’s home,
and the trial court reasonably could have found that the
forces that drive a person’s actions are not always the most
rational ones. Moreover, as the trial court implicitly found,
eliminating his wife as a witness was not defendant’s sole
purpose in killing her, and we cannot say that the evidence
does not support the trial court’s factual finding that it was
one reason for shooting her. Put simply, there is evidence in
the record to support the trial court’s factual finding that
one reason defendant killed his wife was to eliminate her as
a witness. See Cunningham, 337 Or at 538-39 (stating the
Cite as 354 Or 737 (2014)	747

standard of review for predicate factual findings regarding
the admission of evidence).8
                                          2
	        As noted, defendant’s sufficiency argument may rest
alternatively on a series of unexplained assumptions. His
argument appears to assume that, for his wife’s statements
to be admissible under OEC 804(3)(g), he must have sought
to prevent his wife from testifying in an “ongoing matter”; he
must have had a preconceived “design” or “plan” to kill her;
and his “primary purpose” in killing her must have been to
eliminate her as a witness. Although those assumptions are
woven into defendant’s OEC 804(3)(g) argument, he never
identifies where in the text, context, or history of that rule
he finds them. We address those assumptions briefly.
	       Defendant’s argument assumes initially that OEC
804(3)(g) requires that the party against whom the hearsay
statements are offered must have acted to prevent the declar-
ant from being a witness in “an ongoing matter.” However,
nothing in the text of OEC 804(3)(g) requires that a mat-
ter be ongoing when the party acts to eliminate a witness.
Rather, the text of that rule requires only that the party
have engaged in wrongful conduct that was intended to (and
did) cause the declarant to be “unavailable as a witness.”
Ordinarily, a witness is “one [who] gives evidence regard-
ing matters of fact under inquiry.” Webster’s Third New Int’l
Dictionary 2627 (unabridged ed 2002). The use of the word
“witness” contemplates an “inquiry”; it does not require an
“ongoing proceeding.”
	       Were there any doubt about the matter, the con-
text resolves it. The legislature enacted OEC 804(3)(g) in
response to Crawford v. Washington, 541 US 36, 124 S Ct
1354, 158 L Ed 2d 177 (2004). Minutes, Senate Committee
on Judiciary, SB 287, Feb 8, 2005 (remarks of Tom Lininger).
In Crawford, the Court explained that the Sixth Amendment
requirement that, in all criminal prosecutions, the accused
	8
      The question whether the evidence was admissible under OEC 804(3)(g)
differs from the question whether defendant was criminally liable for murdering
his wife. It goes without saying that, in deciding the latter issue, the jury was free
to view the evidence differently from the way that the trial court did in ruling on
defendant’s objection to the admission of his wife’s statements.
748	                                     State v. Supanchick

“shall enjoy the right *  * to be confronted with the wit-
                           * 
nesses against him” is not limited to “in-court testimony.”
Id. at 50. Rather, it extends to testimonial statements made
during the course of a police investigation. Id. at 52. Under
that reasoning, testimonial statements made to police offi-
cers during the course of a police investigation or inquiry
are statements from a “witness” within the meaning of the
Sixth Amendment Confrontation Clause. Id.
	        Not only did the Court define “witness” broadly in
Crawford, but it also recognized that forfeiture by wrong-
doing is one of a limited set of exceptions to the Sixth
Amendment confrontation right. See id. at 62 (explaining
that “the rule of forfeiture by wrongdoing (which we accept)
extinguishes confrontation claims on essentially equita-
ble grounds”). As noted, the Oregon legislature enacted
OEC 804(3)(g) to codify, as part of the Oregon evidence code,
the doctrine of forfeiture by wrongdoing that the Court had
identified in Crawford. That context confirms what the text
of OEC 804(3)(g) suggests: The Oregon legislature intended
the word “witness” in OEC 804(3)(g) to be as broad as the
Court interpreted it in Crawford. Defendant identifies no
basis for thinking that the Oregon legislature intended
OEC 804(3)(g) to reach only a subset of the statements to
which, as Crawford explained, the Sixth Amendment other-
wise would apply.
	        In this case, the trial court could have found that
defendant killed his wife to keep her from reporting his vio-
lation of the restraining order to the officers—i.e., to keep
her from being a “witness” as Crawford used that term.
Moreover, defendant stated that, if he had let his wife walk
out when the police arrived, he faced the prospect that he
would go to prison and his wife would retain custody of their
daughter. Given that statement, the trial court reasonably
could have found that defendant killed his wife to keep her
from testifying in a future contempt proceeding for violating
the restraining order and in the pending divorce proceeding
regarding custody.
	       Defendant’s sufficiency argument also rests on the
proposition that the trial court had to find that he killed his
wife as part of a “plan” or “design” to make her unavailable
Cite as 354 Or 737 (2014)	749

as a witness. To the extent that defendant uses those terms
as synonyms for “intent,” his argument adds little. The text
of the rule requires proof of a specific intent—that defen-
dant “intended” to make his wife unavailable as a witness—
and that intent is synonymous with defendant’s purpose in
killing her. To the extent, however, that defendant means
that the trial court had to find that he had a preconceived
plan formed before he entered his wife’s home, he identifies
nothing in the text, context, or history of OEC 804(3)(g)
that supports that proposition. Defendant appears to find
that requirement in the Court’s use of the word “designed”
in Giles v. California, 554 US 353, 128 S Ct 2678, 171 L Ed
2d 488 (2008). However, not only did the Court use the word
“designed” in Giles to explain only that a party must have
acted for the purpose of making the witness unavailable,9
but Giles was decided three years after the Oregon legisla-
ture enacted OEC 804(3)(g). What the Court said in Giles in
2008 has no bearing on what the Oregon legislature meant
in 2005.
	         Finally, defendant suggests that his wife’s state-
ments were admissible under OEC 804(3)(g) only if his “pri-
mary purpose” in killing her was to make her unavailable as
a witness. The text of the rule does not impose that require-
ment. It provides that a declarant’s statements are admis-
sible if the party against whom they are offered engaged in
wrongdoing that was “intended to [and did] cause the declar-
ant to be unavailable as a witness.” Nothing in the text of
the rule requires that a party have had only a single pur-
pose in engaging in wrongdoing, nor does anything in the
text of the rule require that one purpose predominate over
another. Rather, if one purpose for killing his wife was to
make her unavailable as a witness, as the trial court found,
then the trial court could find that defendant intended to
make his wife unavailable, as OEC 804(3)(g) requires.

	9
       The California Supreme Court had held in Giles that the doctrine of forfei-
ture by wrongdoing applies if the defendant’s acts had the effect of making a wit-
ness unavailable for trial. See Giles, 554 US at 357. The United States Supreme
Court used the term “designed” in Giles to distinguish acts taken for the purpose
of making a witness unavailable from acts that merely had that effect. See id. at
359-60. Indeed, the Court later used “intended” synonymously with “designed.”
See id. at 361. To the extent that defendant draws more from Giles’ use of that
word, he reads Giles too broadly.
750	                                                 State v. Supanchick

	        Defendant appears to base his contrary argument
on a 2012 Texas Court of Appeals case applying Giles. See
Bibbs v. State, 371 SW3d 564, 569-70 (Tex Crim App 2012)
(stating, without explanation, that a “closer reading” of Giles
showed that the doctrine of forfeiture by wrongdoing did not
apply because the defendant in Bibbs had engaged in wrong-
doing for two equally likely purposes, one of which was to
make the declarant unavailable as a witness). Not only did
the Texas Court of Appeals not identify what in Giles led it
to that conclusion, but its reasoning is difficult to reconcile
with what Giles actually said.
	       The Court was careful to explain in Giles that for-
feiture by wrongdoing applies in domestic violence cases
because “[a]cts of domestic violence often are intended to
dissuade a victim from resorting to outside help, and include
conduct designed to prevent testimony to police officers or
cooperation in criminal prosecutions.” 554 US at 377. The
Court added:
   “Where such an abusive relationship culminates in mur-
   der, the evidence may support a finding that the crime
   expressed the intent to isolate the victim and to stop her
   from reporting abuse to the authorities or cooperating with
   a criminal prosecution—rendering her prior statements
   admissible under the forfeiture doctrine.”
Id. Acts of domestic violence that culminate in murder can
reflect a complex of motives; limiting forfeiture by wrong-
doing to those instances in which the defendant’s primary
motive or purpose was to make the declarant unavailable
would undercut the majority’s explanation of the ways in
which the forfeiture doctrine will apply in domestic violence
cases. It also would negate a premise of the concurring opin-
ion in which two justices whose votes were necessary to form
a majority in Giles joined. See id. at 380 (Souter, J., con-
curring in part) (recognizing the complex of motives that
can give rise to domestic violence that results in murder and
that accordingly can lead to the application of the doctrine
of forfeiture by wrongdoing).10
	10
        In any event, an unexplained 2012 Texas Court of Appeals interpretation
of the Court’s 2008 decision in Giles has no bearing on the meaning of an Oregon
rule of evidence enacted in 2005.
Cite as 354 Or 737 (2014)	751

                              B

	         Defendant raises a different reason why, in his view,
his wife’s hearsay statements were not admissible under
OEC 804(3)(g). He argues that OEC 804(3)(g) requires that
any hearsay statement admitted under that rule must have
an independent guarantee of reliability. Defendant’s argu-
ment is difficult to square with the text, context, and legis-
lative history of OEC 804(3)(g). The text of OEC 804(3)(g)
does not require a showing that hearsay statements admit-
ted pursuant to that rule have an independent guarantee of
reliability. Rather, it requires only a finding that the party
against whom the statements are offered has engaged in
wrongdoing that was intended to and did cause the declar-
ant to be unavailable as a witness.

	        Not only does the text of OEC 804(3)(g) omit the
requirement that defendant would add, but the context cuts
against defendant’s argument as well. As noted above, the
legislature enacted OEC 804(3)(g) in response to Crawford,
particularly its recognition that “the rule of forfeiture by
wrongdoing (which we accept) extinguishes confrontation
claims on essentially equitable grounds.” See 541 US at
62. In explaining that the rule of forfeiture by wrongdoing
extinguishes confrontation claims on equitable grounds, the
Court also explained that the rule “does not purport to be
an alternative means of determining reliability.” Id. That
context undercuts defendant’s claim that the Oregon legis-
lature would have understood that a statement must have
an independent guarantee of reliability to come within the
terms of OEC 804(3)(g).

	       Finally, the legislative history of OEC 804(3)(g) pro-
vides no support for defendant’s arguments. No legislative
history affirmatively shows an intent to add the require-
ment that defendant would. Indeed, the Oregon legislature
considered and rejected an amendment that would have
required courts to conduct a separate examination of a state-
ment’s reliability before admitting that statement under
OEC 804(3)(g). See Tape Recording, Senate Committee on
Judiciary, SB 287, Apr 11, 2005, Tape 102, Side A (testimony
752	                                                   State v. Supanchick

by Erik Wasmann).11 In speaking in favor of not including
that requirement in OEC 804(3)(g), Senators Prozanski
and Burdick reasoned that other provisions of the evidence
code, including OEC 401 (excluding irrelevant evidence) and
OEC 403 (excluding relevant evidence where its probative
value is substantially outweighed by the risk of unfair prej-
udice), as well as the Due Process Clause of the Fourteenth
Amendment, provided some guarantee of reliability and
obviated the need to require, as part of OEC 804(3)(g), that
any hearsay statements admitted pursuant to that excep-
tion contain independent guarantees of reliability. They
reasoned that, if those other provisions proved insufficient
to protect against the admission of unreliable evidence, the
legislature could remedy that problem in the future.

	        Defendant notes, however, that legislators referred
to the proposed rule as the “common-law” rule of forfeiture.
Defendant reasons that, because the common law admitted
only reliable evidence under the forfeiture exception, the
mention of the “common law” imported a reliability inquiry
into OEC 804(3)(g) that the text of that rule omitted.
Defendant’s argument is problematic for two reasons. First,
as explained below, the separate reliability requirement
that defendant perceives as a common-law requirement is
faint to nonexistent. Second, defendant’s argument proves
too much. In context, the mention by legislative committee
members of “common law” shows only that the members
were aware that the rule originated from older common-law
cases. That awareness, however, falls far short of expressing
an understanding that all the features of the common-law
rule, as defendant perceives them, were incorporated into
the OEC 804(3)(g). Defendant’s arguments based on OEC
804(3)(g) are not well taken, and we turn to his arguments
under the state and federal constitutions.

	11
       Ordinarily, the legislature’s failure to enact legislation does not provide
persuasive evidence of the legislature’s intent. Berry v. Branner, 245 Or 307, 311,
421 P2d 996 (1966). In this case, however, the legislature made a considered
decision to omit a proposed requirement from the bill that became OEC 804(3)(g).
That decision is a telling piece of legislative history. Cf. State ex rel Juv. Dept.
v. Ashley, 312 Or 169, 179, 818 P2d 1270 (1991) (relying on legislative history
showing that the legislature considered including but chose not to include drug
treatment records in OEC 504).
Cite as 354 Or 737 (2014)	753

                                       III
	        Under Article I, section 11, of the Oregon Constitution,
“the accused shall have the right * * * to meet the witnesses
face to face *  *” in all criminal prosecutions. Under that
               * 
provision, out-of-court statements made by a declarant who
does not testify at trial are, as a general rule, admissible
only if (1) the declarant is unavailable and (2) the state-
ments have adequate indicia of reliability. State v. Campbell,
299 Or 633, 648, 705 P2d 694 (1985) (adopting the test from
Ohio v. Roberts, 448 US 56, 66, 100 S Ct 2531, 65 L Ed 2d
597 (1980)); but cf. State v. Copeland, 353 Or 816, 306 P3d
610 (2013) (reasoning that some out-of-court statements are
not “witness statements” and do not require that the declar-
ant be unavailable to satisfy Article I, section 11).12 A state-
ment that falls within a “firmly rooted hearsay exception” or
has “particularized guarantees of trustworthiness” is con-
sidered “reliable” under Campbell and State v. Nielsen, 316
Or 611, 623, 853 P2d 256 (1993).13
	         In this case, the trial court ruled that admitting the
wife’s hearsay statements posed no constitutional problem,
apparently on the strength of Crawford’s recognition that
forfeiture by wrongdoing is an exception to the federal con-
frontation right. The Court of Appeals upheld that ruling on
an additional ground. Noting that the origins of the doctrine
of forfeiture by wrongdoing date to the seventeenth century,
the court concluded that that doctrine was a “firmly rooted”
exception by virtue of that history. Supanchick, 245 Or App
at 660-61. Accordingly, admitting statements under OEC
804(3)(g) does not run afoul of Article I, section 11.
	        Defendant argues that forfeiture by wrongdoing is
not a “firmly rooted hearsay exception,” as Campbell used
that phrase; he reasons that it is not a hearsay exception at

	12
        The state does not contend that the wife’s hearsay statements are not “wit-
ness statements” within the meaning of Article I, section 11.
	13
       In Crawford, the United States Supreme Court revised the federal Confron-
tation Clause framework, holding that testimonial evidence found “reliable”
under Roberts does not necessarily satisfy the Sixth Amendment right to confron-
tation. 541 US at 54-56. This court, however, has continued to use the Roberts
framework in analyzing the confrontation right under Article I, section 11. See
State v. Cook, 340 Or 530, 540, 135 P3d 260 (2006) (so stating); see also Copeland,
353 Or at 839 (reaffirming Campbell).
754	                                                   State v. Supanchick

all but an equitable principle applied without regard to the
evidence’s inherent reliability. Further, defendant contends
that, if this court recognizes forfeiture by wrongdoing as an
exception to the state confrontation clause, the rule must
retain the features it had at common law. In defendant’s view,
at common law, certain procedural requirements, unrelated
to the forfeiture doctrine itself, ensured that statements
admitted under the forfeiture doctrine would be reliable. It
follows, defendant argues, that Article I, section 11, requires
similar guarantees of reliability before statements can be
admitted under the doctrine of forfeiture by wrongdoing.
Finally, defendant argues that parties cannot relinquish
their state confrontation rights unless they knowingly and
intelligently waive them.
	         The state responds that deciding whether forfeiture
by wrongdoing satisfies Campbell is unnecessary because
forfeiture is an equitable principle necessary to protect the
integrity of judicial proceedings. Precisely for that reason,
the state argues, forfeiture defeats a defendant’s right to
challenge unconfronted evidence under Article I, section 11.
In the state’s view, forfeiture by wrongdoing is consistent
with this court’s cases holding that defendants can relin-
quish constitutional rights through misconduct.
                                A
	         As a starting point, we agree with the parties that
forfeiture by wrongdoing has roots in equity, not reliabil-
ity. See Crawford, 541 US at 62 (“[t]he rule of forfeiture
by wrongdoing *  * extinguishes confrontation claims on
                    * 
essentially equitable grounds; it does not purport to be an
alternative means of determining reliability”). Accordingly,
the rule differs significantly from other hearsay exceptions
that admit categories of hearsay evidence because they are
considered inherently reliable.14 For that reason, forfeiture
by wrongdoing is not a “firmly-rooted hearsay exception,” as
the court used that phrase in Campbell.
	14
       Some courts have concluded that the forfeiture doctrine, like other hearsay
exceptions, is self-validating as to reliability. See United States v. Natson, 469
F Supp 2d 1243, 1252 (MD Ga 2006) (“If a defendant eliminates someone because
he is concerned that the person may testify against him, the defendant’s own
conduct reveals that the defendant considers what the witness may have to say to
be both relevant and reliable.”). In our view, the strength of that conclusion will
vary depending on the facts and circumstances of each case.
Cite as 354 Or 737 (2014)	755

	        That does not end the matter, however. The state
does not contend that forfeiture is a firmly rooted hearsay
exception that satisfies Campbell. Rather, the state argues
that forfeiture by wrongdoing historically has foreclosed
confrontation claims on equitable grounds and that that
history informs the meaning of Article I, section 11. To put
the parties’ arguments in perspective, we first consider the
history of the forfeiture doctrine that preceded the adoption
of Article I, section 11, in 1857. We then turn to what that
history reveals about the meaning of Article I, section 11.
See State v. Reinke, 354 Or 98, 106, 309 P3d 1059, adh’d to
as modified, 354 Or 570, 316 P3d 286 (2013) (looking to the
cases that preceded the adoption of constitutional provisions
to determine the meaning of those provisions).
                                        1
	       Forfeiture by wrongdoing arose from evidentiary
procedures in seventeenth-century English felony cases.
Those procedures developed out of the so-called “Marian
statutes,” which required magistrates to interview wit-
nesses in felony cases before deciding whether to commit a
suspect to jail or to release the suspect on bail. 1 & 2 Phil
& M, c 13, § 1 (1554-55); 2 & 3 Phil & M, c 10 (1556). Among
other things, the Marian statutes required that justices of
the peace—and later coroners—make available to the court
a record of their hearings. Id. It appears that witnesses at
Marian proceedings were required to testify under oath. See
Thomas Y. Davies, Selective Originalism, 13 Lewis & Clark
L Rev 605, 619 (2009).15 Moreover, suspects probably would
have had an opportunity to cross-examine witnesses at com-
mittal hearings, but that opportunity was less likely to have
been available at coroners’ inquests. Robert Kry, Forfeiture
and Cross-Examination, 13 Lewis & Clark L Rev 577, 583-84
(2009); see Robert Kry, Confrontation under the Marian
Statutes, 72 Brook L Rev 493, 511-33 (2007) (inferring from
the records of English Marian examinations and other
sources that, by 1789, prisoners in committal proceedings
would have had an opportunity to cross-examine witnesses).
	15
       The Marian statutes themselves did not require that witnesses swear an
oath before they were examined; rather, that requirement developed as courts
interpreted the Marian statutes. See Davies, 13 Lewis & Clark L Rev at 619 (cit-
ing William Lambard, Eirenarcha: or of the Office of the Justices of Peace (1588)).
756	                                     State v. Supanchick

	        For obvious reasons, recorded Marian testimony
became an appealing source of evidence when witnesses
could not testify at trial. See Crawford, 541 US at 44 (citing
M. Hale, 2 Pleas of the Crown 284 (1736)). But strict rules
governed when it could be introduced. One rule was that
testimony could not be read unless the Crown showed that
the witness who had offered it was unavailable. See Kry, 13
Lewis & Clark L Rev at 579. Initially, unavailability could
be proved in two ways, by showing (1) that the witness had
died or (2) that the witness could not travel. In 1666, Lord
Morley’s Case articulated a third way of proving unavail-
ability: a showing that the witness “was detained by the
means or procurement of the prisoner.” See Lord Morley’s
Case, 6 How St Tr 769, 770-71 (HL1666).
	         To put a simple point on the history, the forfeiture
doctrine originated as part of the Marian unavailability
rule, similar to the rules for unavailability described in OEC
804(1). Moreover, as first articulated, the doctrine appeared
to be unrelated to a suspect’s ability (or inability) to cross-
examine witnesses at Marian examinations, a proposition
that Lord Morley’s Case illustrates. Lord Morley was tried
before the House of Lords for murder. Before the trial, twelve
judges advised the House of Lords on the admissibility of
four Marian examinations taken during a coroner’s inquest.
See Lord Morley’s Case, 6 How St Tr at 770-71. The judges
ruled that three of the depositions were admissible because
those witnesses were unavailable; they had died between
the inquest and the criminal trial. Id. They also ruled that
the deposition of a fourth witness would be admissible if the
trier of fact found that the witness was unavailable because
he had been “detained by the means or procurement of the
prisoner.” Id.
	       In ruling on the admissibility of the witnesses’
statements, the judges in Lord Morley’s Case did not men-
tion whether Lord Morley had had an opportunity to con-
front the witnesses at the coroner’s inquest. Not only is the
decision silent on that point, but whether Lord Morley had
had that opportunity appears to have been immaterial to
whether the witnesses’ statements were admissible. If Lord
Morley had been able to cross-examine the witnesses at the
Cite as 354 Or 737 (2014)	757

coroner’s inquest, then any concerns about confrontation
would have been satisfied, and the doctrine of forfeiture by
wrongdoing would have served only as an additional way
of proving unavailability. Conversely, if Lord Morley had
not had the opportunity to cross-examine the witnesses at
the coroner’s inquest, then it is difficult to see how the doc-
trine of forfeiture by wrongdoing, as it was first articulated,
had anything to do with confrontation. After all, the judges
ruled that the testimony of three witnesses who had died
after the inquest could be admitted at the later criminal
trial, as well as the testimony of a fourth witnesses if Lord
Morley had procured his absence from trial. Under Lord
Morley’s Case, the admissibility of all four witnesses’ testi-
mony turned only on whether they were unavailable, and
forfeiture by wrongdoing served only as an additional way of
proving unavailability.

	        That was the state of the forfeiture doctrine when it
was first articulated in 1666. The Court, however, explained
in Crawford and confirmed in Giles that the doctrine had
taken on greater significance by 1791 when the Sixth Amend-
ment was ratified.16 Not only was the forfeiture doctrine a
way of proving unavailability, but it also had become an
equitable bar to asserting a confrontation right.

	        That conclusion, which the Court drew from English
and American common law, rests on two premises. First,
the Court concluded in Crawford that, when the Sixth
Amendment was ratified in 1791, both the English and
the American courts recognized that, as a general princi-
ple, unconfronted ex parte statements were not admissible
in criminal trials. 541 US at 45-46. By 1791, that rule also
applied to Marian examinations: If a suspect had not had the
opportunity to confront a witness during a Marian examina-
tion, that statement ordinarily would not be admissible. Id.
at 47 (relying on English cases decided shortly before 1791).
Second, the Court explained in Giles that the English courts
nevertheless had admitted unconfronted statements taken

	16
        The Court did not acknowledge any shift in the doctrine’s meaning, but it
necessarily follows from a comparison of the doctrine’s modest beginnings with
the conclusion that the Court reached in Crawford and Giles.
758	                                                  State v. Supanchick

during a coroner’s inquest because the defendant had pro-
cured the witness’s absence from the later criminal trial. 554
US at 369-70. That ruling rested, the Court explained, on the
equitable principle that a defendant “ ‘shall never be admit-
ted to shelter himself by such evil Practices on the Witness,
that being to give him Advantage of his own Wrong.’ ” Id. at
370 (quoting G. Gilbert, Law of Evidence 141 (1756)).
	         The Court’s view of history in Crawford and Giles
has been the subject of debate. Some commentators have rea-
soned that the Americans who ratified the Sixth Amendment
in 1791 would have understood that any statement taken
under oath during a Marian examination was admissible if
the witness were unavailable because of death, inability to
travel, or the procurement of the defendant. See Thomas Y.
Davies, Fictional Originalism in Crawford, 71 Brook L Rev
105, 152 (2005).17 It follows from that view of the history
that, in 1791, Marian examinations were generally admis-
sible if the witness was unavailable for a recognized reason
and that forfeiture by wrongdoing did not serve any purpose
other than to prove unavailability.
	         Other commentators have started from the opposite
premise. See Kry, 13 Lewis & Clark L Rev at 579. In their
view, the Americans who ratified the Sixth Amendment
in 1791 would have understood that Marian examinations
were admissible in later criminal proceedings only if the
defendant had had the opportunity to confront the witness.
Id.18 It follows from that view of the history that the Sixth
Amendment should permit the admission only of confronted
Marian examinations and that forfeiture by wrongdoing
should not be viewed as excusing the need for confrontation.
	17
        That view rests on the proposition that the English cases excluding uncon-
fronted statements taken during Marian examinations, which the Court had
cited in Crawford, were decided shortly before the Sixth Amendment was ratified
and would not have been known in this country by that time. Davies, 71 Brook L
Rev at 153-62.
	18
        One exponent of that view acknowledges that, even though confrontation
ordinarily was available in committal hearings, the opportunity usually was not
available in coroners’ inquests. Kry, 13 Lewis & Clark L Rev at 583-84. Kry relies
on a justification advanced by some later English treatises—that a constructive
opportunity for cross-examination existed because the fact of a coroner’s inquest
would have been widely known—to explain the admission of unconfronted exam-
inations taken during a coroner’s inquest. See id.
Cite as 354 Or 737 (2014)	759

	        Even though both views of history start from differ-
ent premises, they share the same view of forfeiture by wrong-
doing: In 1791, it would have been understood only as another
way of proving unavailability. Again, the Court took a mid-
dle position in Crawford and Giles, finding that by 1791 the
doctrine of forfeiture by wrongdoing had become an equi-
table bar to asserting a confrontation claim under both the
common law and the Sixth Amendment.
	        We need not weigh in on that debate to resolve
the meaning of Article I, section 11. Whatever the state of
the common law may have been in England and whatever
Americans may have understood about English common law
when they ratified the Sixth Amendment in 1791, the ques-
tion in this case is what was the state of the law in America
in 1857 when Article I, section 11, was adopted. We accord-
ingly turn to the American cases that preceded and closely
followed the adoption of our constitutional provision.
                                      2
	        In America, one aspect of the common law had
become settled by 1857: Unconfronted statements taken
during Marian examinations were not admissible in later
criminal proceedings. State v. Campbell, 30 SCL (1 Rich)
124, 125 (1844) (coroner’s inquest); State v. Hill, 20 SCL (2
Hill) 607, 610-11 (1835) (committal hearing); see State v.
Houser, 26 Mo 431, 436-38 (1858) (affirming general rule
and excluding the statement because the state had failed
to prove that the witness was unavailable); cf. State v.
McO’Blennis, 24 Mo 402 (1857) (holding that confronted
statements taken during a committal hearing were admis-
sible when the witness had died before the criminal trial).
For example, in Campbell and also in Hill, the witness had
died between the time he or she had testified at the Marian
examination and the defendant’s trial.19 Campbell, 30 SCL
at 124; Hill, 20 SCL at 607-08. Neither defendant had had
the opportunity to cross-examine the witness at the Marian
examination and, in each case, the court excluded the wit-
ness’s statement for that reason. Campbell, 30 SCL at 125;
Hill, 20 SCL at 610-11.
	19
        Both cases arose in South Carolina, which had adopted the Marian stat-
utes. See Hill, 20 SCL at 608.
760	                                                State v. Supanchick

	        Those cases expressly rejected the rule recognized
in some earlier English authorities that statements taken
under oath in the course of a Marian examination were
admissible whenever the witness was unavailable. Campbell,
30 SCL at 124-25; Hill, 20 SCL at 610-11.20 The court
explained in Hill why it did not view the presence of an oath
as sufficient: “[H]owever much inclined the witness may be
to speak the truth, and the magistrate to do his duty in tak-
ing the examination, [the witness’s] evidence will receive
a coloring in proportion to the degree of excitement under
which he labors.” 20 SCL at 610-11. The courts accordingly
rejected the proposition that the oath was a sufficient guar-
antee of reliability and concluded instead that the opportu-
nity for cross-examination was the necessary prerequisite
for admitting the testimony in a later criminal case. Id.;
accord Campbell, 30 SCL at 124-25.
	In Hill, Campbell, Houser, and McO’Blennis, the
defendants had not procured the witnesses’ absence from the
later criminal trials. Accordingly, none of those cases had
occasion to consider the doctrine of forfeiture by wrongdoing
or decide whether the application of that doctrine would result
in the admission of the witness’s statements. However, two
cases that bracketed the adoption of the Oregon Constitution
identified the equitable principle underlying the forfeiture
doctrine as a bar to asserting a confrontation claim; that is,
they explained that a defendant who purposefully keeps a
witness away from trial cannot object to the admission of
the witness’s statements on the ground that the defendant
cannot confront the witness at trial.
	       In 1856, the Georgia Supreme Court explained that
the doctrine of forfeiture by wrongdoing would lead to the
admission of a witness’s examination before the committing
	20
       The court discussed that earlier line of English authority in Houser:
   “It is true that there may be a few cases in which depositions, taken before
   coroners in England without any opportunity of cross-examination, have
   been used against the accused, where the witness subsequently died; but
   the authority of such cases is questioned, even in that country, by their
   ablest writers on common law—Starkie, Roscoe, Russell—and it is doubtful
   whether such testimony would now be received. At all events, such testimony
   has never been permitted in this country[.]”
26 Mo at 436.
Cite as 354 Or 737 (2014)	761

magistrate. See Williams v. Georgia, 19 Ga 402, 402-03
(1856). The court began its analysis by citing Lord Morley’s
Case for the broad proposition that, if “any witness who had
been examined by the Crown, and was then absent [because]
*  * the witness was detained by means or procurement of
  * 
the prisoner, then the examination should be read.” Id. at
403. After concluding that the state had failed to lay a suffi-
cient foundation for the admission of the evidence under the
forfeiture doctrine, the court added in dicta that it did not
think that the Sixth Amendment confrontation right “ha[d]
any bearing upon this point.” Id. As we understand the
court’s reasoning, which was admittedly brief, it concluded
that the Sixth Amendment was not intended to “disturb any
great rule of criminal evidence,” such as the doctrine of for-
feiture by wrongdoing. See id.
	        Approximately 20 years later, the United States
Supreme Court clarified what the Georgia Supreme Court
had intimated in Williams. See Reynolds v. United States, 98
US 145, 25 L Ed 244 (1878). One of the questions in Reynolds
was whether a witness’s testimony from the defendant’s ear-
lier criminal trial could be admitted at a later trial for the
same offense. The district court had found that the defen-
dant had procured the witness’s absence from the later trial,
and the Court explained that the defendant’s actions barred
him from raising any objection on confrontation grounds.
The Court reasoned:
   	 “The Constitution gives the accused the right to a trial
   at which he should be confronted with the witnesses
   against him; but if a witness is absent by [the accused’s]
   own wrongful procurement, he cannot complain if compe-
   tent evidence is admitted to supply the place of that which
   he has kept away. The Constitution does not guarantee an
   accused person against the legitimate consequences of his
   own wrongful acts. It grants him the privilege of being
   confronted with the witnesses against him; but if he vol-
   untarily keeps the witnesses away, he cannot insist on his
   privilege. If, therefore, when absent by his procurement,
   their evidence is supplied in some lawful way, he is in no
   condition to assert that his constitutional rights have been
   violated.”
Id. at 158.
762	                                                 State v. Supanchick

	        Having concluded that a defendant who prevents
a witness from testifying cannot object on confrontation
grounds to admitting the witness’s prior statements, the
Court turned to the question whether the “evidence [in that
case had been] supplied in some lawful way.” Specifically,
the Court turned “to the consideration of what the former
testimony was, and the evidence by which it was proven to
the jury.” Id. at 160.

	        The defendant in Reynolds had challenged the
means by which the government had proved the missing
witness’s former testimony,21 and the Court relied on a civil
evidence treatise that explained when former testimony was
admissible as an exception to the rule against hearsay. See
id. at 161 (citing Francis Wharton, 1 A Commentary on the
Law of Evidence in Civil Issues § 177 (1877)). The treatise
noted that former testimony could be proved by persons who
had heard the witness’s testimony, and it explained that

    “[t]he admission of such evidence is based on the fact that
    the party against whom the evidence is offered, having had
    the power to cross-examine on the former trial, and the
    parties and issue being the same, the second suit is virtu-
    ally a continuation of the first.”

Wharton, 1 Evidence § 177 at 180. Citing section 177 of
Wharton’s treatise, the Court noted that the testimony had
been given at the defendant’s trial on the same offense, that
it was substantially the same as that given in the earlier
trial, and that defendant had been present and had had “full
opportunity of cross-examination.” 98 US at 160-61. The
Court concluded, “This brings the case clearly within the
well-established rules. The cases are fully cited in 1 Whart.
Evid., sect. 177.” Id. at 161.

	21
       The Court explained that the defendant had argued that, not only had the
government failed to prove that he had procured the missing witness’s absence
but that a
    “witness Patterson was allowed to read from a paper what purported to be
    statements made by [the missing witness] on a former trial. No proof was
    offered as to the genuineness of the paper or its origin, nor did the witness
    testify to its contents of his own knowledge.”
98 US at 152 (summarizing the defendant’s argument).
Cite as 354 Or 737 (2014)	763

	         The Court’s opinion in Reynolds divides into two
parts. When the Court addressed the defendant’s constitu-
tional objections to the admission of the testimony, it con-
cluded broadly that the equitable principles underlying the
forfeiture doctrine foreclosed the defendant from objecting
to the admission of the testimony on confrontation grounds.
When the Court turned to the defendant’s evidentiary objec-
tions to the admission of the witness’s former testimony, it
relied on a treatise governing the admission of evidence in
civil proceedings to conclude that the trial court’s ruling
was “clearly within well-established rules.” To be sure, as
the Court noted, the statements at issue in Reynolds had
been subject to cross-examination in the defendant’s first
trial. However, that consideration appears to have factored
into the Court’s analysis only in resolving the defendant’s
evidentiary objections to the admission of the evidence. Not
only did the Court resolve the defendant’s Sixth Amendment
claims solely by reference to the equitable principles under-
lying the forfeiture doctrine, but any other reading of the
case would require us to assume that the Court looked to a
treatise on the admission of evidence in civil cases to deter-
mine the scope of a defendant’s constitutional rights in crim-
inal trials. We decline to draw that conclusion.
                               3
	         With that background in mind, we turn to defen-
dant’s state constitutional argument. Defendant advances
two separate arguments. His first argument is based on the
common law. Defendant acknowledges that the common-law
doctrine of forfeiture by wrongdoing excused the need for
confrontation. He contends, however, that the common-law
forfeiture doctrine applied only if the statements admitted
under that doctrine had an independent guarantee of reli-
ability, and he points to the fact that, at common law, state-
ments taken during a Marian examination would have been
taken under oath. In his view, the presence of an oath was
evidence that, at common law, the doctrine of forfeiture by
wrongdoing required an irreducible minimum guarantee of
reliability before an ex parte statement could be admitted.
He reasons that Article I, section 11, demands no less.
	         Before turning to defendant’s reliability argument,
we note our agreement with the premise of his argument.
764	                                      State v. Supanchick

For the reasons set out above, we agree with defendant that,
by 1857, the equitable principle underlying the doctrine
of forfeiture by wrongdoing served as a bar to asserting a
common-law confrontation right. The framers of Oregon’s
constitution accordingly would have understood that, at
common law, a defendant who engaged in wrongdoing for
the purpose of making a witness unavailable could not com-
plain that the witness’s prior statements were admissible
without the defendant having the opportunity to meet the
witness “face to face.” We are also persuaded that, in adopt-
ing Article I, section 11, the framers of Oregon’s constitution
would have accepted that limitation on an accused’s state
constitutional right to meet the witnesses face to face.
	        As we understand defendant’s argument, it rests
on the proposition that a defendant who gives up his or
her Article I, section 11, right to confrontation nonetheless
retains an Article I, section 11, right to demand that only
reliable evidence be admitted. The right that defendant per-
ceives is not apparent from the text of Article I, section 11.
Article I, section 11, provides that, in all criminal prosecu-
tions, “the accused shall have the right * * * to meet the wit-
nesses face to face.” Textually, the right to confrontation is
“a procedural rather than a substantive guarantee. It com-
mands, not that evidence be reliable, but that reliability be
assessed in a particular manner: by testing in the crucible
of cross-examination.” See Crawford, 541 US at 61 (explain-
ing the textually analogous federal right). To put the mat-
ter differently, if a defendant is able to “meet the witnesses
face to face,” as Article I, section 11, requires, then noth-
ing in the text of that provision provides a basis for making
the further objection that the witnesses’ confronted testi-
mony is nonetheless unreliable and thus inadmissible under
Article I, section 11.
	        To be sure, this court held in Campbell that Article I,
section 11, does not preclude the admission of unconfronted
hearsay statements if the declarant is unavailable and if
the statements either come within a firmly rooted hearsay
exception or have particularized guarantees of trustwor-
thiness. See 299 Or at 648 (adopting that standard from
Roberts, 448 US at 66-67). Campbell, however, stands only
for the proposition that the procedural right guaranteed by
Cite as 354 Or 737 (2014)	765

the text of Article I, section 11, can be satisfied if hearsay
evidence possesses certain indicia of reliability. In effect,
Campbell recognizes that, in some circumstances, reliabil-
ity can serve as a proxy for the procedural right to meet
the witnesses face to face. But Campbell neither holds nor
suggests that, in addition to guaranteeing that procedural
right, Article I, section 11, also requires a separate inquiry
into reliability. That requirement is not found either in the
text of the constitutional provision or in Campbell.
	         The common-law context against which Article I,
section 11, was adopted also cuts against reading a separate
reliability requirement into that provision. When Article I,
section 11, was adopted in 1857, the settled American rule
was that unconfronted, sworn statements taken during a
coroner’s inquest or committal proceeding were not admis-
sible in a later criminal trial, even when the witness was
unavailable. See, e.g., Houser, 26 Mo at 436; Campbell, 30
SCL at 125; Hill, 20 SCL at 610-11. Given that history, the
oath appears to have been a procedural incident of a Marian
examination to which early and mid-nineteenth century
American courts attached no independent significance, at
least in giving effect to a defendant’s common-law confron-
tation right. That common-law context provides no basis for
finding in the procedural right to confrontation a separate
substantive requirement of evidentiary reliability.
	       We note, finally, that no direct evidence exists of
what the people who framed the Oregon Constitution
thought about the right to confrontation. Article I, section
11, was adopted without comment or debate. See Claudia
Burton & Andrew Grade, A Legislative History of the Oregon
Constitution of 1857 - Part I (Articles I & II), 37 Willamette
L Rev 469, 518 (2001). The framers more or less grafted the
provision onto Oregon’s constitution without explaining how
they understood its scope or application. See Copeland, 353
Or at 827. And they never suggested any understanding
that the doctrine of forfeiture by wrongdoing would require
a separate inquiry into evidentiary reliability. Nothing in
the history of the enactment of Article I, section 11, calls
into question what the text of Article I, section 11, says and
what its context confirms: If a defendant forfeits the right
to meet a witness face to face, Article I, section 11, does not
766	                                                   State v. Supanchick

require that any evidence admitted under the forfeiture doc-
trine possess independent guarantees of reliability.22
	         Having reached that conclusion, we recognize that
other sources of law provide some assurance against the
admission of unreliable evidence. As the trial court observed,
rules of evidence, such as OEC 401 and OEC 403, “articulate
minimum standards of reliability.” See Lawson/James, 352
Or at 750-51 (so stating). Moreover, the Due Process Clause
is a bar to the admission of unreliable evidence. Perry v. New
Hampshire, ___ US ___, 132 S Ct 716, 723, 181 L Ed 2d 694
(2012) (defining when evidence will be so unreliable that
its admission violates due process). Finally, as some legis-
lators observed, if OEC 804(3)(g) results in the admission
of unacceptable levels of unreliable evidence, the legislature
can always act to correct that problem. Article I, section 11,
however, does not provide a substantive guarantee against
the admission of unreliable evidence, as defendant argues.
	         We conclude that, when a defendant has intention-
ally made a witness unavailable to testify, the defendant loses
the right to object that that evidence should not be admitted
on state constitutional confrontation grounds. The defen-
dant’s act ensures that the witness’s testimony can never
be subject to “testing in the crucible of cross-examination.”
Crawford, 541 US at 61. In other words, where a defen-
dant acts wrongfully to make a witness unavailable, that
defendant largely controls the very feature of the evidence
to which he objects. The principle of forfeiture by wrong-
doing, as its history shows, ensures that a defendant cannot
manipulate proceedings in that way. It likewise establishes
that, if a defendant attempts that kind of manipulation, he
or she cannot evade its consequences.

	22
        Defendant cites some cases suggesting that forfeiture as a hearsay excep-
tion requires a consideration of reliability. See, e.g., Vasquez v. People, 173 P3d
1099, 1106 (Colo 2007) (recognizing forfeiture by wrongdoing as an exception
to hearsay under the Colorado’s residual exception and therefore requiring an
inquiry into reliability). We accept defendant’s point that several jurisdictions
adopted forfeiture-by-wrongdoing as part of that jurisdiction’s “catchall” hearsay
exception and that “catchall” exceptions generally require that the evidence be
reliable. As the United States Supreme Court has observed, however, the hearsay
doctrine is not coextensive with the confrontation right. State and federal legisla-
tures may make hearsay rules more protective of a defendant’s rights than state
and federal confrontation rules do.
Cite as 354 Or 737 (2014)	767

	        Defendant advances a second state constitutional
argument. He contends that he can lose his confrontation
rights under Article I, section 11, only if he knowingly and
intentionally relinquishes them. In defendant’s view, there
must either be a colloquy on the record followed by a know-
ing and intentional waiver of his confrontation rights or an
admonition by the court that further conduct will result
in the loss of his confrontation rights. We need not explore
the intricacies of the question that defendant raises. In this
case, the answer is straightforward. As explained above, the
framers of Oregon’s constitution would have understood that
forfeiture by wrongdoing extinguishes a defendant’s state
constitutional right to confront a witness whom the defen-
dant has purposefully kept away from the proceeding. It
necessarily follows that proof that the doctrine of forfeiture
by wrongdoing applies is sufficient to eliminate the right. No
more is required.
                                       IV
	        The Sixth Amendment provides that “[i]n all crim-
inal prosecutions, the accused shall enjoy the right *  * to
                                                       * 
be confronted with the witnesses against him.” Crawford
established, as a general rule, that testimonial hearsay is
not admissible in a defendant’s criminal trial unless the
defendant either previously had or currently has the oppor-
tunity to confront the declarant. 541 US at 53-54. The only
exceptions to that federal confrontation right are those
“established at the time of the founding.” Id. at 54. One of
those exceptions is the common-law doctrine of forfeiture by
wrongdoing. For that doctrine to apply, the defendant must
have engaged in wrongful conduct designed or intended to
prevent the witness from testifying and, by such wrongful
conduct, must have actually prevented the testimony. See
Giles, 554 US at 361-62.
	        The state does not dispute that the hearsay state-
ments that the trial court admitted are testimonial, nor does
it contend that defendant had the ability to cross-examine
his wife regarding some of those statements.23 We assume,
	23
        Because defendant could have requested a hearing to challenge the allega-
tions his wife made in seeking a restraining order, there is a question whether he
768	                                               State v. Supanchick

therefore, that the Sixth Amendment would prohibit the use
of those statements unless an exception applies. As explained
above, the trial court found that the wife’s statements were
admissible under the doctrine of the forfeiture by wrong-
doing. Defendant’s only argument to the contrary mirrors
his arguments under the common law and Article I, section
11. He reasons that the Sixth Amendment requires that
statements admitted under the forfeiture doctrine have inde-
pendent guarantees of reliability.
	         Defendant’s argument is difficult to square with
Crawford. The Court made clear in Crawford that the Sixth
Amendment Confrontation Clause does not require a sep-
arate inquiry into reliability. As the Court explained, the
Confrontation Clause “commands, not that evidence be reli-
able, but that reliability be assessed in a particular manner:
by testing in the crucible of cross-examination.” Crawford,
541 US at 61. Moreover, the Court stated that, when forfei-
ture by wrongdoing applies, concerns regarding reliability
are not a matter of constitutional concern: “[T]he rule of for-
feiture by wrongdoing (which we accept) extinguishes con-
frontation claims on essentially equitable grounds; it does
not purport to be an alternative means of determining reli-
ability.” Id. at 62 (emphasis added). Indeed, Justice Souter’s
concurrence in Giles recognized that it is “reasonable to
place the risk of untruth in an unconfronted, out-of-court
statement on a defendant who meant to preclude the test-
ing that confrontation provides.” Giles, 554 US at 379. Given
Crawford and Giles, we cannot accept defendant’s argument
that the Sixth Amendment requires a separate inquiry into
reliability.
                                V
	         Defendant argues that, even if admitting his wife’s
statements under OEC 804(3)(g) did not violate his rights
under Article I, section 11, and the Sixth Amendment, it
violated his right to due process under the Fourteenth
Amendment to the United States Constitution. Defendant
starts from the premise that the Due Process Clause guar-
antees that the evidence on which he is convicted must meet
had an opportunity to cross-examine her regarding those allegations. However,
there is no dispute that he lacked a prior opportunity to cross-examine her
regarding the statements made in the notes she had prepared for her lawyer.
Cite as 354 Or 737 (2014)	769

minimum standards of reliability. He concludes that his
wife’s statements did not meet those standards because the
statements were made in anticipation of litigation.
	        The United States Supreme Court recently reaf-
firmed that some evidence is so unreliable that it violates
the Due Process Clause. It reaches that level when it “     ‘is
so extremely unfair that its admission violates fundamental
conceptions of justice.’ ” See Perry, 132 S Ct at 723 (quoting
Dowling v. United States, 493 US 342, 352, 110 S Ct 668, 107
L Ed 2d 708 (1990)). Examples include the knowing use of
false evidence or perjured testimony. Napue v. Illinois, 360
US 264, 269, 79 S Ct 1173, 3 L Ed 2d 1217 (1959) (false evi-
dence); Mooney v. Holohan, 294 US 103, 112, 55 S Ct 340, 79
L Ed 791 (1935) (perjured testimony). They also include the
use of evidence “tainted by police arrangement,” Perry, 132
S Ct at 724 (describing Manson v. Brathwaite, 432 US 98, 97
S Ct 2243, 53 L Ed 2d 140 (1977)).
	        Defendant does not argue that his deceased wife’s
statements come within any of the categories of evidence
that the Court previously has recognized are so unreliable
that their admission violates due process. Rather, defendant
argues that the admission of his wife’s statements violates
due process because he “lacked one of his critical procedural
mechanisms for challenging unreliable evidence”—namely,
cross-examination. To the extent that defendant’s inabil-
ity to cross-examine his wife is the crux of his due process
argument, it suffers from three problems. First, defendant
can hardly complain that he cannot cross-examine his wife
when he purposefully made her unavailable to testify. The
second problem is related to the first; if defendant is correct,
his interpretation of the Due Process Clause would negate
the exception to the Sixth Amendment that the Court rec-
ognized in Crawford and reaffirmed in Giles. Third, defen-
dant was always free to argue to the jury that it should
discount his wife’s statements because they were made in
anticipation of litigation, even if he could not cross-examine
her on that point. See Perry, 132 S Ct at 722 (explaining
that the constitution “protects a defendant against a con-
viction based on evidence of questionable reliability, not by
prohibiting introduction of the evidence, but by affording
770	                                     State v. Supanchick

the defendant means to persuade the jury that the evidence
should be discounted”).
	        Beyond noting his inability to cross-examine his
wife, defendant provides no reason to think that the state-
ments his wife made in anticipation of litigation are so unre-
liable that their admission violates due process. See, e.g.,
Albrecht v. Horn, 485 F3d 103, 135 (3d Cir 2007) (holding
that out-of-court statements to an attorney were sufficiently
reliable in part because the client knew that the statements
would have to be proved at trial). We conclude that, the trial
court did not err in admitting, over defendant’s statutory
and constitutional objections, some of the statements that
his wife made before her death.
	       The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
