2007 Oregon Code - Chapter 44 :: Chapter 44 - Witnesses
Chapter 44 — Witnesses
2007 EDITION
WITNESSES
EVIDENCE AND WITNESSES
GENERAL PROVISIONS
44.080Â Â Â Â Â Â Protection
of witness from improper questions and excessive detention
44.090Â Â Â Â Â Â Protection
of witness from arrest
44.150Â Â Â Â Â Â Service
of subpoena if witness concealed
44.240Â Â Â Â Â Â Production
of witness confined in Department of Corrections institution
44.320Â Â Â Â Â Â Authority
to take testimony and administer oath or affirmation
44.370Â Â Â Â Â Â Witness
presumed to speak truth; jury judges of credibility
FEES
44.415Â Â Â Â Â Â Fees
and mileage of witnesses
MEDIA PERSONS AS WITNESSES
44.510Â Â Â Â Â Â Definitions
for ORS 44.510 to 44.540
44.520Â Â Â Â Â Â Limitation
on compellable testimony from media persons; search of media personsÂ’ papers,
effects or work premises prohibited; exception
44.530Â Â Â Â Â Â Application
of ORS 44.520
44.540Â Â Â Â Â Â Effect
of informant as witness
CHILDREN OR PERSONS WITH DEVELOPMENTAL
DISABILITIES AS WITNESSES
44.545Â Â Â Â Â Â Expediting
proceedings
44.547Â Â Â Â Â Â Notice
to court; accommodations
POLICE OFFICERS AS WITNESSES
44.550Â Â Â Â Â Â Definitions
for ORS 44.550 to 44.566
44.552Â Â Â Â Â Â Method
of subpoenaing police officer; subpoena to reflect whether expert opinion to be
asked
44.554Â Â Â Â Â Â Payment
of police officer subpoenaed as expert witness; obligation of party to
reimburse law enforcement agency; method of payment
44.556Â Â Â Â Â Â Prepayment
of expenses in certain cases required
44.558Â Â Â Â Â Â Payment
for additional attendance beyond first day required in advance
44.560Â Â Â Â Â Â Application
to subpoenas for depositions
44.562Â Â Â Â Â Â Party
and police officer may agree to modify time of appearance
44.564Â Â Â Â Â Â Right
of action to recover payment due
44.566Â Â Â Â Â Â Provisions
not applicable if public body a party
     44.010 [Repealed by 1981 c.892 §98]
     44.020 [Repealed by 1981 c.892 §98]
     44.030 [Repealed by 1981 c.892 §98]
     44.040 [Amended by 1957 c.44 §1; 1963 c.396 §16; 1971
c.512 §4; 1973 c.136 §6; 1973 c.777 §19a; 1973 c.794 §13; 1975 c.694 §1; 1975
c.726 §1; 1977 c.656 §1; 1977 c.677 §12a; 1979 c.284 §79; 1979 c.731 §2; 1979
c.744 §1a; 1979 c.769 §12b; repealed by 1981 c.892 §98]
     44.050 [Repealed by 1981 c.892 §98]
     44.060 [Repealed by 1981 c.892 §98]
     44.070 [Repealed by 1981 c.892 §98]
GENERAL
PROVISIONS
     44.080
Protection of witness from improper questions and excessive detention. It is the right of a witness to be protected
from irrelevant, insulting or improper questions, and from harsh or insulting
demeanor. The witness is to be detained only so long as the interests of
justice require.
     44.090
Protection of witness from arrest. (1) Every person who has been, in good faith, served with a subpoena
to attend as a witness before a court, judge, commissioner, referee or other
officer, is exonerated from arrest, in a civil case, while going to the place
of attendance, necessarily remaining there and returning. The arrest of a
witness contrary to this section is void, and when willfully made is a contempt
of the court; and the officer making the arrest is responsible to the witness
for double the amount of the damages which may be assessed against the officer,
and is also liable in an action by the party serving the witness with the
subpoena, for the damages sustained by that party in consequence of the arrest.
     (2) But the officer is not liable in any
way, unless the person claiming the exemption makes, if required, an affidavit
stating:
     (a) That the person has been served with a
subpoena to attend as a witness before a court, judge or other officer,
specifying the same, the place of attendance and the action, suit or proceeding
in which the subpoena was issued; and
     (b) That the person has not been served by
the procurement of the person with the intention of avoiding an arrest.
     (3) The affidavit may be taken by the
officer and exonerates the officer from liability for not making the arrest, or
for discharging the witness when arrested.
     (4) The court, judge or officer before
whom the attendance of the witness is required may discharge the witness from
an arrest made in violation of this section.
     44.095 [1973 c.386 §1; repealed by 1981 c.892 §98]
     44.110 [Repealed by 1979 c.284 §199]
     44.120 [Amended by 1969 c.383 §1; repealed by 1979
c.284 §199]
     44.130 [Amended by 1969 c.383 §2; repealed by 1979
c.284 §199]
     44.140 [Amended by 1977 c.789 §2; repealed by 1979
c.284 §199]
     44.150
Service of subpoena if witness concealed. A sheriff, deputy or some person specially appointed by the sheriff,
but none other, is authorized and required to break into any building or vessel
in which a witness may be concealed to prevent the service of a subpoena, and
serve it on the witness.
     44.160 [Repealed by 1979 c.284 §199]
     44.170 [Repealed by 1961 c.413 §1 (44.171 enacted
in lieu of 44.170)]
     44.171 [1961 c.413 §2 (enacted in lieu of 44.170);
repealed by 1979 c.284 §199]
     44.180 [Repealed by 1979 c.284 §199]
     44.190 [Repealed by 1979 c.284 §199]
     44.200 [Repealed by 1979 c.284 §199]
     44.210 [Repealed by 1979 c.284 §199]
     44.220 [Repealed by 1979 c.284 §199]
     44.230 [Amended by 1973 c.836 §326; repealed by
1979 c.284 §199]
     44.240
Production of witness confined in Department of Corrections institution. (1) Whenever a court or judge makes an order
for the temporary removal and production of a witness who is confined in a
Department of Corrections institution within this state before a court or
officer for the purpose of being orally examined this section applies. The superintendent
of the institution shall, at the institution, deliver the witness to the
sheriff of the county in which the court or judge making the order is located.
     (2) The sheriff shall give the
superintendent a signed receipt when taking custody of the witness under
subsection (1) of this section. The sheriff shall be responsible for the
custody of the witness until the sheriff returns the witness to the
institution. Upon the return of the witness to the institution by the sheriff,
the superintendent shall give a signed receipt therefor to the sheriff.
     (3) When a witness is delivered to a
sheriff under subsection (1) of this section, or at any time while the witness
is in the custody of the sheriff as provided in subsection (2) of this section,
the superintendent may give the sheriff a list of persons who may communicate
with the witness or with whom the witness may communicate. Except as otherwise
required by law, upon receipt of the list and while the witness is in the
custody of the sheriff, the sheriff shall permit communication only between the
witness and those persons designated by the list.
     (4) The sheriff and neither the
institution nor the Department of Corrections shall be liable for any expense
incurred in connection with the witness while the witness is in the custody of
the sheriff as provided in subsection (2) of this section. If the witness is a
party plaintiff, the sheriff shall recover costs of the care of the witness
from the plaintiff, and shall have a lien upon any judgment for the plaintiff.
In all other cases, the sheriff and not the witness shall be entitled to the
witness fees and mileage to which the witness would otherwise be entitled under
ORS 44.415 (2), or other applicable law. [1955 c.523 §1; 1969 c.502 §2; 1973
c.836 §327; 1987 c.320 §13; 1987 c.606 §6; 1989 c.980 §3a]
     44.310 [Repealed by 1981 c.892 §98]
     44.320
Authority to take testimony and administer oath or affirmation. Every court, judge, clerk of a court,
justice of the peace, certified shorthand reporter as defined in ORS 8.415 or
notary public is authorized to take testimony in any action or proceeding, as
are other persons in particular cases authorized by statute or the Oregon Rules
of Civil Procedure and is authorized to administer oaths and affirmations
generally, and every such other person in the particular case authorized. [Amended
by 1979 c.284 §81; 1989 c.1055 §13; 1997 c.249 §21]
     44.330 [Repealed by 1981 c.892 §98]
     44.340 [Repealed by 1981 c.892 §98]
     44.350 [Repealed by 1981 c.892 §98]
     44.360 [Repealed by 1981 c.892 §98]
     44.370
Witness presumed to speak truth; jury judges of credibility. A witness is presumed to speak the truth.
This presumption, however, may be overcome by the manner in which the witness
testifies, by the character of the testimony of the witness, or by evidence
affecting the character or motives of the witness, or by contradictory
evidence. Where the trial is by the jury, they are the exclusive judges of the
credibility of the witness.
     44.410 [Amended by 1959 c.158 §1; repealed by 1989
c.980 §24]
FEES
     44.415
Fees and mileage of witnesses.
(1) Except as provided in subsection (2) of this section, a person is entitled
to receive $30 for each dayÂ’s attendance as a witness and mileage reimbursement
at the rate of 25 cents a mile if the person is required to travel from a place
within or outside this state in order to perform duties as a witness. Total
mileage reimbursement shall not exceed the necessary cost of transportation on
reasonably available common carriers.
     (2) In any criminal proceeding, any
proceeding prosecuted by a public body or any proceeding where a public body is
a party, a person is entitled to receive $5 for each dayÂ’s attendance as a
witness and mileage reimbursement at the rate of eight cents a mile if the
person is required to travel from a place within or outside this state in order
to perform duties as a witness. Total mileage reimbursement shall not exceed
the necessary cost of transportation on reasonably available common carriers.
     (3) As used in this section, “public body”
means any state, city, county, school district, other political subdivision,
municipal corporation, public corporation and any instrumentality thereof. [1989
c.980 §2]
     44.420 [Repealed by 1959 c.158 §2]
     44.430 [Repealed by 1989 c.980 §24]
     44.440 [Amended by 1963 c.519 §24; 1977 c.408 §1;
repealed by 1981 s.s. c.3 §141]
     44.450 [Amended by 1977 c.593 §1; repealed by 1981
s.s. c.3 §141]
MEDIA PERSONS
AS WITNESSES
     44.510
Definitions for ORS 44.510 to 44.540. As used in ORS 44.510 to 44.540, unless the context requires
otherwise:
     (1) “Information” has its ordinary meaning
and includes, but is not limited to, any written, oral, pictorial or
electronically recorded news or other data.
     (2) “Medium of communication” has its
ordinary meaning and includes, but is not limited to, any newspaper, magazine
or other periodical, book, pamphlet, news service, wire service, news or
feature syndicate, broadcast station or network, or cable television system.
Any information which is a portion of a governmental utterance made by an
official or employee of government within the scope of the officialÂ’s or
employeeÂ’s governmental function, or any political publication subject to ORS
260.532, is not included within the meaning of “medium of communication.”
     (3) “Processing” has its ordinary meaning
and includes, but is not limited to, the compiling, storing and editing of
information.
     (4) “Published information” means any
information disseminated to the public.
     (5) “Unpublished information” means any
information not disseminated to the public, whether or not related information
has been disseminated. “Unpublished information” includes, but is not limited
to, all notes, outtakes, photographs, tapes or other data of whatever sort not
themselves disseminated to the public through a medium of communication,
whether or not published information based upon or related to such material has
been disseminated. [1973 c.22 §2; 1979 c.190 §398; 2001 c.965 §18; 2005 c.797 §50]
     44.520
Limitation on compellable testimony from media persons; search of media personsÂ’
papers, effects or work premises prohibited; exception. (1) No person connected with, employed by or
engaged in any medium of communication to the public shall be required by a
legislative, executive or judicial officer or body, or any other authority
having power to compel testimony or the production of evidence, to disclose, by
subpoena or otherwise:
     (a) The source of any published or
unpublished information obtained by the person in the course of gathering, receiving
or processing information for any medium of communication to the public; or
     (b) Any unpublished information obtained
or prepared by the person in the course of gathering, receiving or processing
information for any medium of communication to the public.
     (2) No papers, effects or work premises of
a person connected with, employed by or engaged in any medium of communication
to the public shall be subject to a search by a legislative, executive or
judicial officer or body, or any other authority having power to compel the
production of evidence, by search warrant or otherwise. The provisions of this
subsection, however, shall not apply where probable cause exists to believe
that the person has committed, is committing or is about to commit a crime. [1973
c.22 §3; 1979 c.820 §1]
     44.530
Application of ORS 44.520.
(1) ORS 44.520 applies regardless of whether a person has disclosed elsewhere
any of the information or source thereof, or any of the related information.
     (2) ORS 44.520 continues to apply in
relation to any of the information, or source thereof, or any related
information, even in the event of subsequent termination of a personÂ’s
connection with, employment by or engagement in any medium of communication to
the public.
     (3) The provisions of ORS 44.520 (1) do
not apply with respect to the content or source of allegedly defamatory
information, in civil action for defamation wherein the defendant asserts a
defense based on the content or source of such information. [1973 c.22 §§4,5;
1979 c.820 §2]
     44.540
Effect of informant as witness.
If the informant offers the informant as a witness, it is deemed a consent to
the examination also of a person described in ORS 44.520 on the same subject. [1973
c.22 §6]
CHILDREN OR
PERSONS WITH DEVELOPMENTAL DISABILITIES AS WITNESSES
     44.545
Expediting proceedings. (1)
Except as otherwise provided in subsection (2) of this section or except for
good cause shown by either party, in any case where a child or a member of the
family of the child is a victim of a crime and where a child under 18 years of
age is called to give testimony, the court, consistent with the rules of civil
or criminal procedure, shall expedite the action and insure that it takes
precedence over any other. When determining whether or not to grant a
continuance, the judge shall take into consideration the age of the child and
the potential adverse impact the delay may have on the well-being of the child.
The court shall make written findings of fact and conclusions of law when
granting a continuance.
     (2) The provisions of subsection (1) of
this section do not apply to any juvenile proceeding other than the termination
of parental rights. [1991 c.387 §1]
     Note: 44.545 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 44 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     44.547
Notice to court; accommodations. (1) In any case in which a child under 12 years of age or a person
with a developmental disability described in subsection (2) of this section is
called to give testimony, the attorney or party who plans to call the witness
must notify the court at least seven days before the trial or proceeding of any
special accommodations needed by the witness. Upon receiving the notice, the
court shall order such accommodations as are appropriate under the
circumstances considering the age or disability of the witness. Accommodations
ordered by the court may include:
     (a) Break periods during the proceedings
for the benefit of the witness.
     (b) Designation of a waiting area
appropriate to the special needs of the witness.
     (c) Conducting proceedings in clothing
other than judicial robes.
     (d) Relaxing the formalities of the
proceedings.
     (e) Adjusting the layout of the courtroom
for the comfort of the witness.
     (f) Conducting the proceedings outside of
the normal courtroom.
     (2) For the purposes of this section, “developmental
disability” means a disability attributable to mental retardation, autism,
cerebral palsy, epilepsy or other disabling neurological condition that
requires training or support similar to that required by persons with mental
retardation, if either of the following apply:
     (a) The disability originates before the
person attains 22 years of age, or if the disability is attributable to mental
retardation the condition is manifested before the person attains 18 years of
age, the disability can be expected to continue indefinitely, and the
disability constitutes a substantial handicap to the ability of the person to
function in society.
     (b) The disability results in a
significant subaverage general intellectual functioning with concurrent
deficits in adaptive behavior that are manifested during the developmental
period. [1995 c.804 §1]
     Note: 44.547 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 44 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
POLICE
OFFICERS AS WITNESSES
     44.550
Definitions for ORS 44.550 to 44.566. As used in ORS 44.550 to 44.566:
     (1) “Civil case” means any proceeding
other than a criminal prosecution.
     (2) “Law enforcement unit” means the
police department of a city or the sheriffÂ’s department or other police
organization of a county.
     (3) “Police officer” means an officer or
member of a law enforcement unit who is employed full-time as a peace officer
by the city or county and who is responsible for enforcing the criminal laws of
this state.
     (4) “Tribunal” means any person or body
before which attendance of witnesses may be required by subpoena, including an
arbitrator in arbitration proceedings. [1991 c.550 §1]
     Note: 44.550 to 44.566 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter 44
or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     44.552
Method of subpoenaing police officer; subpoena to reflect whether expert
opinion to be asked. (1)
Whenever a police officer is called as an expert witness in a civil case by a
party by whom the officer is not employed, a subpoena requiring attendance may
be served by delivering a copy either to the officer personally or to the
officerÂ’s immediate superior.
     (2) Any person causing a subpoena to be
issued to compel the attendance of a police officer before a tribunal shall
indicate on the face of that subpoena whether the person or the personÂ’s
representative intends to ask the expert opinion of the officer as to any
aspect of the proceedings. A police officer shall not be required by a tribunal
to give the officerÂ’s expert opinion on any matter before the tribunal unless
the subpoena compelling the officerÂ’s presence indicates that the officerÂ’s expert
opinion will be asked. [1991 c.550 §2]
     Note: See note under 44.550.
     44.554
Payment of police officer subpoenaed as expert witness; obligation of party to
reimburse law enforcement agency; method of payment. (1) Any police officer who is obliged by a
subpoena issued pursuant to ORS 44.552 (2) to attend as an expert witness shall
receive the salary or other compensation to which the officer is normally
entitled from the law enforcement unit by which the officer is employed during
the time that the officer travels to and from the place where the court or
other tribunal is located and while the officer is required to remain at that
place pursuant to such subpoena. The officer shall also receive from the law
enforcement unit by which the officer is employed the actual necessary and
reasonable traveling expenses incurred in complying with the subpoena.
     (2) The party at whose request a subpoena
is issued pursuant to ORS 44.552 (2) compelling the attendance of a police
officer as an expert witness shall reimburse the law enforcement unit by which
the officer is employed for the full cost to the law enforcement unit incurred
in reimbursing the officer as provided in subsection (1) of this section for
each day that the officer is required to remain in attendance pursuant to the
subpoena. The amount of $160 shall be tendered with any subpoena issued under
ORS 44.552 (2) to compel the attendance of a police officer as an expert
witness for each day that the officer is required to remain in attendance
pursuant to the subpoena. If the person causing the issuance of a subpoena
requiring the expert opinion of a police officer makes arrangements with the
officer and with the tribunal prior to the issuance of the subpoena to take the
testimony of the officer by telephone, and testimony by telephone is otherwise
allowed by the Oregon Rules of Civil Procedure, the amount of $80 shall be
tendered with the subpoena for each day that the officer is required to testify
pursuant to the subpoena.
     (3) If the actual expenses should later
prove to be less than the amount tendered, the excess of the amount tendered
shall be refunded.
     (4) If the actual expenses should later
prove to be more than the amount tendered, the difference shall be paid to the
law enforcement unit by which the officer is employed by the party at whose
request the subpoena is issued. However, no additional amounts shall be due
unless, within seven days after the final day on which the officer appears in
the proceedings, the law enforcement unit mails a statement to the party or to
the partyÂ’s attorney reflecting the additional amounts due.
     (5) If a court or tribunal continues a
proceeding on its own motion, no additional expert witness fee may be required
prior to the issuance of a subpoena or the making of an order directing the
officer to appear on the date to which the proceeding is continued. [1991 c.550
§3]
     Note: See note under 44.550.
     44.556
Prepayment of expenses in certain cases required. A police officer who is called as an expert
witness in a civil case may demand the payment specified in ORS 44.554 (2) for
one day, in advance, and when so demanded shall not be compelled to attend
until the payment is tendered. [1991 c.550 §4]
     Note: See note under 44.550.
     44.558
Payment for additional attendance beyond first day required in advance. A police officer shall not be ordered to
return by the court or tribunal for subsequent proceedings beyond the day
stated in the subpoena requiring the officer to give the officerÂ’s expert
opinion referred to in ORS 44.552 (2) or the day upon which the officer
appeared under ORS 44.562 (2), unless the party at whose request the subpoena
was issued, or the party at whose request the officer is ordered to return,
shall first tender to the officer the same sum required to be tendered with a
subpoena in the first instance. [1991 c.550 §5]
     Note: See note under 44.550.
     44.560
Application to subpoenas for depositions. ORS 44.552, 44.554 and 44.558 apply to subpoenas issued for the taking
of depositions of police officers. [1991 c.550 §6]
     Note: See note under 44.550.
     44.562
Party and police officer may agree to modify time of appearance. A police officer who has been subpoenaed
under ORS 44.552 and 44.560 for the purpose of giving the officerÂ’s expert
opinion, in lieu of attendance at the time specified in the subpoena, may agree
with the party at whose request the subpoena was issued to appear at another
time or pursuant to such notice as may be agreed upon. [1991 c.550 §7]
     Note: See note under 44.550.
     44.564
Right of action to recover payment due. Whenever a police officer appears as an expert witness under ORS
44.550 to 44.566 and reimbursement is not made as provided for in ORS 44.550 to
44.566, the law enforcement unit by which the officer is employed shall have standing
to bring an action in order to recover such funds. [1991 c.550 §8]
     Note: See note under 44.550.
     44.566
Provisions not applicable if public body a party. ORS 44.550 to 44.566 shall not apply to any
proceeding in which a public body is a party. For the purposes of this section,
“public body” has the meaning given in ORS 30.260. [1991 c.550 §9]
     Note: See note under 44.550.
     44.610 [1973 c.136 §1; repealed by 1979 c.284 §199]
     44.620 [1973 c.136 §§2,3; repealed by 1979 c.284 §199]
     44.630 [1973 c.136 §4; repealed by 1979 c.284 §199]
     44.640 [1973 c.136 §5; repealed by 1979 c.284 §199]
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