State v. Rytting

ORS 162.205 provides: “(1) A person commits the crime of failure to appear in the first degree if the person knowingly fails to appear as required after: (a) Having by court order been released from custody or a correctional facility under a release agreement or security release upon the condition that the person will subsequently appear personally in connection with a charge against the person of having committed a felony; or (b) Having been released from a correctional facility subject to a forced release agreement under ORS 169.046 in connection with a charge against the person of having committed a felony...”

Defendant appealed the conviction of one count of contempt of court for failure to appear in court on August 2, 2017, violating defendant's second release agreement. Defendant assigned error to the trial court's admission of two signed release agreements, and argued that the agreements were "testimonial," in violation of her the Sixth Amendment confrontation rights. In response, the state argued that because the release agreements are given to all defendants who are released due to jail population emergencies, they are “kept in the normal course of court operations for reasons other than facilitation of possible future prosecution.” Under ORS 162.205, a person commits the crime of failure to appear in the first degree if that person knowingly fails to appear as required after having been released from a correctional facility subject to a forced release agreement. To determine whether the agreements were testimonial, the Court followed the same path of reasoning found in Copeland. There, the court focused on whether an item of evidence “(1) provides precisely the same information that a witness “would be expected to provide if called at trial;’” (2) was prepared in response to an investigative law enforcement request; and (3) has its sole purpose providing prima facie evidence in a criminal proceeding.” 353 Or at 843 (quoting Melendez-Diaz, 557 US at 311). The Court did not find that the release agreements were testimonial. Additionally, the Court found that no other jurisdiction held similar jail release agreements to be testimonial. AFFIRMED.