Oregon Court Overturns Assault Conviction Over Hearsay Rule

Mohammad Shafi Zieg, an Afghan immigrant living in Washington County, Oregon, was convicted of fourth-degree assault — a domestic violence charge — after an altercation with his wife, T. Because T never appeared at trial, the prosecution asked the court to declare her "unavailable" and admit her statements from a 911 call as hearsay evidence. The trial court agreed. The jury heard the recording, convicted Zieg, and he appealed.

What the appeals court found

The Oregon Court of Appeals reversed the conviction in September 2026. Writing for the panel, Judge Hellman focused on a specific legal requirement: before a court can declare a witness "unavailable," officers must use all reasonable measures to locate and serve that person. Here, the trial court itself acknowledged — during the hearing — that two reasonable steps were never taken. Defense counsel pointed out that officers never left business cards with neighbors asking them to call if they spotted T. The trial court called that "a good point" and agreed it was a reasonable measure that officers skipped. Defense counsel then raised a second missed step: a stakeout, which one officer had mentioned as an option. The trial court again agreed it was a reasonable measure that was not used. Despite acknowledging both gaps, the trial court still ruled T was unavailable. The appeals court said that was legal error. Because the unavailability finding was wrong, the 911 call should not have been admitted as hearsay, and the conviction cannot stand.

The court also addressed Zieg's self-defense argument. He claimed T was the initial aggressor — that she hit him with a spatula, came at him with a knife, scissors, and a dish drying rack, and that he only grabbed and twisted her hands to defend himself. The appeals court found the trial court did not err in denying Zieg's motion for acquittal on self-defense grounds. There was enough evidence — T's visible bruising, redness, a scrape on her forehead, scratches on her back, and her own 911 statements — for a jury to reject the self-defense claim. The court also declined to review Zieg's separate argument that T's injuries were not serious enough to qualify as "physical injury" under Oregon law, because his lawyer never raised that specific theory at trial. The case now goes back to the lower court.

The case carries a broader lesson for immigrants involved in criminal proceedings. Zieg and T were both Afghan immigrants; English was not their first language, T had no family in Oregon, and she depended on Zieg financially. The prosecution used those facts as context for why serving T was difficult. But the court made clear that difficulty does not excuse skipping steps that officers themselves identified as possible. The standard is strict: all reasonable measures, not most of them.

What to do

• If you are an immigrant facing a criminal charge — even a misdemeanor like fourth-degree assault — hire an immigration lawyer alongside your criminal defense attorney. A domestic violence conviction can trigger deportation proceedings and bar you from a green card or naturalization, regardless of the outcome of any appeal.
• If you are a victim of domestic violence and you are afraid to testify, know that you have rights. Organizations like the National Domestic Violence Hotline (1-800-799-7233) can connect you with advocates who understand immigration status concerns.
• If hearsay evidence — a recorded call, a written statement, or a third-party account — was used against you at trial, ask your attorney whether the prosecution properly established that the original speaker was truly "unavailable" under the law. This ruling shows that courts will scrutinize that finding closely.
• Follow the retrial in this case through Oregon court records (OJD eCourt) for updates on how the lower court proceeds without the 911 call evidence.

A full breakdown of this topic — in our guide “Immigration Court Rulings”.