2007 Oregon Code - Chapter 132 :: Chapter 132 - Grand Jury - Indictments and Other Accusatory Instrument
Chapter 132
Grand Jury, Indictments and Other Accusatory Instruments
2007 EDITION
GRAND JURY AND ACCUSATORY INSTRUMENTS
PROCEDURE IN CRIMINAL MATTERS GENERALLY
ORGANIZATION OF GRAND JURY
132.010 Composition
132.020 Selection
of grand juries; law applicable to additional jury; when inquiry void
132.030 Challenge
of juror prohibited; when juror may be excused
132.050 Foreman;
alternate
132.060 Oath
or affirmation of jurors
132.070 Charge
of court
132.080 Clerk
132.090 Presence
of persons at sittings or deliberations of jury; interpreters
132.100 Oath
to witness before grand jury
132.110 When
juror discharged; replacement; proceeding with lesser number
132.120 Jury
service term; continuation
GRAND JUROR IN LATER PROCEEDINGS
132.210 Immunity
of jurors as to official conduct
132.220 Disclosure
by juror of testimony of witness examined by jury
GRAND JURY PROCEDURES
132.310 Inquiry
into crimes; presentation to court
132.320 Consideration
of evidence
132.330 Submission
of indictment by district attorney
132.340 Duties
of district attorney for jury
132.350 Jurors
knowledge of an offense; action thereon
132.360 Number
of jurors required to concur
132.370 Presentment
of facts to court for instruction as to law
132.380 Whom
the grand jury may indict
132.390 When
the grand jury may indict
132.400 Indorsement
of indictment as a true bill
132.410 Finding
of indictment; filing; inspection
132.420 Disclosure
relative to indictment not subject to inspection
132.430 Finding
against indictment; indorsement not a true bill
132.440 Inquiry
into conditions in correctional and youth correction facilities
SUFFICIENCY OF INDICTMENT
132.510 Forms
and sufficiency of pleadings
132.540 Matters
indictment must import; previous conviction not to be alleged; exception; use
of statutory language
132.550 Content
132.557 Indictment
must contain subcategory facts under certain circumstances
132.560 Joinder
of counts and charges; consolidation of charging instruments
132.580 Names
of grand jury witnesses on indictment; effect of failure to include; procedure
to remedy failure
ACCUSATORY INSTRUMENTS
132.586 Pleading
domestic violence in accusatory instrument
PENALTIES
132.990 Premature
inspection or disclosure of contents of indictment
ORGANIZATION OF GRAND JURY
132.010
Composition. A grand jury is
a body of seven persons drawn from the jurors in attendance upon the circuit
court at a particular jury service term, having the qualifications prescribed
by ORS 10.030 and sworn to inquire of crimes committed or triable within the
county from which they are selected. [Amended by 1985 c.703 §22]
132.020
Selection of grand juries; law applicable to additional jury; when inquiry
void. (1) Under the
direction of the court, the clerk shall draw names at random from the names of
jurors in attendance upon the court until the names of seven jurors are drawn
and accepted by the court. The seven persons thus chosen shall constitute the
grand jury.
(2) When the court, in its discretion,
considers that one or more additional grand juries is needed for the
administration of justice, one or more additional grand juries shall be
selected in the manner provided in subsection (1) of this section.
(3) Any law applicable to the grand jury
is equally applicable to any additional grand jury selected under subsection
(2) of this section, except that whenever any duties or functions are imposed
upon the grand jury, it shall be sufficient if such duties or functions are
performed by one of the grand juries selected under this section.
(4) Any inquiry or investigation required
by law to be made by a grand jury shall be void, unless such inquiry or
investigation was made entirely by the same grand jury. [Amended by 1959 c.59 §1;
1985 c.703 §23]
132.030
Challenge of juror prohibited; when juror may be excused. Neither the grand jury panel nor any
individual juror may be challenged. A judge of the court or clerk of court, as
defined in ORS 10.010, may at any time after a juror is drawn and before the
juror is sworn excuse the juror from jury service for any reason prescribed in
ORS 10.050. [Amended by 1973 c.836 §36; 1979 c.728 §5; 1985 c.703 §24; 1999
c.1085 §2]
132.040 [Repealed by 1973 c.836 §358]
132.050
Foreman; alternate. The
court shall appoint a foreman and an alternate foreman of the grand jury from
the persons chosen to constitute that body. The alternate foreman shall have
the duties and powers of the foreman in the absence of the foreman. [Amended by
1973 c.836 §37]
132.060
Oath or affirmation of jurors.
(1) Before the members of the grand jury enter upon the discharge of their
duties, the following oath must be administered to them by or under the
direction of the court:
______________________________________________________________________________
You, as grand jurors for the County of ______,
do solemnly swear that you will diligently inquire into, and true presentment
or indictment make of, all crimes against this state committed or triable
within this county that shall come to your knowledge; that you will keep secret
the proceedings before you, the counsel of the state, your own counsel and that
of your fellows; that you will indict no person through envy, hatred or malice
nor leave any person not indicted through fear, favor, affection or hope of
reward; but that you will indict upon the evidence before you according to the
truth and the laws of this state, so help you God.
______________________________________________________________________________
(2) In administering this oath, the blank
therein must be filled with the name of the county in which the court is
sitting; and if any juror prefers, the juror must be allowed to affirm thereto,
in which case, instead of the final phrase thereof there must be added, and
this you promise under the pains and penalties of perjury. [Amended by 1973
c.836 §38]
132.070
Charge of court. When the
grand jury is formed, the court shall charge it and give it such information as
the court deems proper concerning the nature of its powers and duties, or
charges for crime returned to the court or likely to come before the grand
jury.
132.080
Clerk. The members of the
grand jury shall appoint one of their number as clerk. The clerk shall keep
minutes of their proceedings (except the votes of the individual jurors) and of
the substance of the evidence given before them.
132.090
Presence of persons at sittings or deliberations of jury; interpreters. (1) Except as provided in subsections (2)
and (3) of this section, no person other than the district attorney or a
witness actually under examination shall be present during the sittings of the
grand jury.
(2) Upon a motion filed by the district
attorney in the circuit court, the circuit judge may appoint a reporter who
shall attend the sittings of the grand jury to take and report the testimony in
any matters pending before the grand jury, and may appoint a parent, guardian
or other appropriate person 18 years of age or older to accompany any child 12
years of age or younger, or any person with mental retardation, during an appearance
before the grand jury. The circuit judge, upon the district attorneys showing
to the court that it is necessary for the proper examination of a witness
appearing before the grand jury, may appoint a guard, medical or other special
attendant or nurse, who shall be present in the grand jury room and shall
attend such sittings.
(3) The district attorney may designate an
interpreter who is certified under ORS 45.291 to interpret the testimony of
witnesses appearing before the grand jury. The district attorney may designate
a qualified interpreter, as defined in ORS 45.288, if the circuit court
determines that a certified interpreter is not available and that the person
designated by the district attorney is a qualified interpreter as defined in
ORS 45.288. An interpreter designated under this subsection may be present in
the grand jury room and attend the sittings of the grand jury.
(4) No person other than members of the
grand jury shall be present when the grand jury is deliberating or voting upon
a matter before it.
(5) As used in this section, mental
retardation has the meaning given that term in ORS 427.005. Mental retardation
may be shown by attaching to the motion of the district attorney:
(a) Documentary evidence of intellectual
functioning; or
(b) The affidavit of a qualified person
familiar with the person with mental retardation. Qualified person includes,
but is not limited to, a teacher, therapist or physician. [Amended by 1973
c.836 §39; 1983 c.375 §1; 1991 c.406 §1; 2001 c.243 §1]
132.100
Oath to witness before grand jury. The foreman of the grand jury or, in the absence of the foreman, any
other grand juror shall administer an oath to any witness appearing before the
grand jury. [Amended by 1973 c.836 §40]
132.110
When juror discharged; replacement; proceeding with lesser number. After the formation of the grand jury and
before it is discharged, the court may:
(1) Discharge a grand juror who:
(a) Becomes sick, is out of the county or
fails to appear when the grand jury is summoned to reconvene;
(b) Is related, by affinity or
consanguinity within the third degree, to the accused who is under
investigation by the grand jury, or held for the commission of a crime; or
(c) Is unable to continue in the discharge
of duties.
(2) Order that another person be drawn at
random and sworn from the jurors then in attendance upon the court, or if no
other jurors are there in attendance, from the master jury list of the county,
to take the place of a discharged juror.
(3) Allow at least five grand jurors to
proceed upon good cause shown. [Amended by 1973 c.836 §41; 1985 c.703 §25]
132.120
Jury service term; continuation. When the jury service term is completed the grand jury must be
discharged by the court; but the judge may, by an order made either in open
court or at chambers anywhere in the judicial district and entered of record,
stating the reasons, continue the grand jury in session for such period of time
as the judge deems advisable. [Amended by 1959 c.638 §13; 1973 c.836 §42; 1985
c.540 §30; 1985 c.703 §26]
132.130 [Repealed by 1973 c.836 §358]
GRAND JUROR
IN LATER PROCEEDINGS
132.210
Immunity of jurors as to official conduct. A grand juror cannot be questioned for anything the grand juror says
or any vote the grand juror gives, while acting as such, relative to any matter
legally pending before the grand jury, except for a perjury or false swearing
of which the grand juror may have been guilty in giving testimony before such
jury. [Amended by 1973 c.836 §43]
132.220
Disclosure by juror of testimony of witness examined by jury. A member of a grand jury may be required by
any court to disclose:
(1) The testimony of a witness examined
before the grand jury, for the purpose of ascertaining whether it is consistent
with that given by the witness before the court.
(2) The testimony given before such grand
jury by any person, upon a charge against such person for perjury or false
swearing or upon trial therefor. [Amended by 1973 c.836 §44]
GRAND JURY
PROCEDURES
132.310
Inquiry into crimes; presentation to court. The grand jury shall retire into a private room and may inquire into
crimes committed or triable in the county and present them to the court, either
by presentment or indictment, as provided in ORS 132.310 to 132.390. [Amended by
1973 c.836 §45]
132.320
Consideration of evidence.
(1) Except as provided in subsections (2) to (10) of this section, in the
investigation of a charge for the purpose of indictment, the grand jury shall
receive no other evidence than such as might be given on the trial of the
person charged with the crime in question.
(2) A report or a copy of a report made by
a physicist, chemist, medical examiner, physician, firearms identification
expert, examiner of questioned documents, fingerprint technician, or an expert
or technician in some comparable scientific or professional field, concerning
the results of an examination, comparison or test performed by such person in
connection with a case which is the subject of a grand jury proceeding, shall,
when certified by such person as a report made by such person or as a true copy
thereof, be received in evidence in the grand jury proceeding.
(3) An affidavit of a witness who is
unable to appear before the grand jury shall be received in evidence in the
grand jury proceeding if, upon application by the district attorney, the
presiding judge for the judicial district in which the grand jury is sitting
authorizes such receipt after good cause has been shown for the witness
inability to appear. An affidavit taken in another state or territory of the
(4) A grand jury that is investigating a
charge of criminal driving while suspended or revoked under ORS 811.182 may
receive in evidence an affidavit of a peace officer with a report or copy of a
report of the peace officer concerning the peace officers investigation of the
violation of ORS 811.182 by the defendant.
(5) A grand jury may receive testimony of
a witness by means of simultaneous television transmission allowing the grand
jury and district attorney to observe and communicate with the witness and the
witness to observe and communicate with the grand jury and the district
attorney.
(6) A grand jury that is investigating a
charge of failure to appear under ORS 133.076, 153.992, 162.195 or 162.205 may
receive in evidence an affidavit of a court employee certifying that the
defendant failed to appear as required by law and setting forth facts
sufficient to support that conclusion.
(7)(a) Except as otherwise provided in
this subsection, a grand jury may receive in evidence through the testimony of
one peace officer involved in the criminal investigation under grand jury
inquiry information from an official report of another peace officer involved
in the same criminal investigation concerning the other peace officers
investigation of the matter before the grand jury. The statement of a person
suspected of committing an offense or inadmissible hearsay of persons other
than the peace officer who compiled the official report may not be presented to
a grand jury under this paragraph.
(b) If the official report contains
evidence other than chain of custody, venue or the name of the person suspected
of committing an offense, the grand jurors must be notified that the evidence
is being submitted by report and that the peace officer who compiled the report
will be made available for testimony at the request of the grand jury. When a
grand jury requests the testimony of a peace officer under this paragraph, the
peace officer may present sworn testimony by telephone if requiring the peace
officers presence before the grand jury would constitute an undue hardship on
the peace officer or the agency that employs or utilizes the peace officer.
(8) A grand jury that is investigating a
charge of failure to report as a sex offender under ORS 181.599 may receive in
evidence certified copies of the form required by ORS 181.603 (2) and sex
offender registration forms and an affidavit of a representative of the Oregon
State Police, as keepers of the states sex offender registration records,
certifying that the certified copies of the forms constitute the complete
record for the defendant.
(9) The grand jury is not bound to hear
evidence for the defendant, but it shall weigh all the evidence submitted to
it; and when it believes that other evidence within its reach will explain away
the charge, it should order such evidence to be produced, and for that purpose
may require the district attorney to issue process for the witnesses.
(10) A grand jury that is investigating a
charge of driving while under the influence of intoxicants in violation of ORS
813.010 may receive in evidence an affidavit of a peace officer regarding any
or all of the following:
(a) Whether the defendant was driving.
(b) Whether the defendant took or refused
to take tests under any provision of ORS chapter 813.
(c) The administration of tests under any
provision of ORS chapter 813 and the results of such tests.
(d) The officers observations of physical
or mental impairment of the defendant. [Amended by 1973 c.836 §46; 1975 c.576 §1;
1983 c.393 §25; 1995 c.126 §1; 1995 c.781 §38; 1997 c.249 §43; 1999 c.1049 §6;
2001 c.19 §1; 2003 c.645 §3; 2005 c.529 §1]
132.330
Submission of indictment by district attorney. The district attorney may submit an
indictment to the grand jury in any case when the district attorney has good
reason to believe that a crime has been committed which is triable within the
county. [Amended by 1973 c.836 §47]
132.340
Duties of district attorney for jury. The district attorney, when required by the grand jury, must prepare
indictments or presentments for it and attend its sittings to advise it in
relation to its duties or to examine witnesses in its presence.
132.350
Jurors knowledge of an offense; action thereon. (1) If a grand juror knows or has reason to
believe that a crime which is triable in the county has been committed, the grand
juror shall disclose the same to the fellow jurors, who may thereupon
investigate the same.
(2) An indictment or presentment must not
be found upon the statement of a grand juror unless the grand juror is sworn
and examined as a witness.
(3) A grand juror testifying as provided
in subsection (2) of this section shall not vote on the indictment nor be
present during deliberations thereon. [Amended by 1973 c.836 §48]
132.360
Number of jurors required to concur. A grand jury may indict or present facts to the court for instruction
as provided in ORS 132.370, with the concurrence of five of its members, if at
least five jurors voting for indictment or presentment heard all the testimony
relating to the person indicted or facts presented. [Amended by 1973 c.836 §49]
132.370
Presentment of facts to court for instruction as to law. (1) When the grand jury is in doubt whether
the facts, as shown by the evidence before it, constitute a crime in law or
whether the same has ceased to be punishable by reason of lapse of time or a
former acquittal or conviction, it may make a presentment of the facts to the
court, without mentioning the names of individuals, and ask the court for
instructions concerning the law arising thereon.
(2) A presentment cannot be found and made
to the court except as provided in subsection (1) of this section, and, when so
found and presented, the court shall give such instructions to the grand jury
concerning the law of the case as it thinks proper and necessary.
(3) A presentment is made to the court by
the foreman in the presence of the grand jury. But being a mere formal
statement of facts for the purpose of obtaining the advice of the court as to
the law arising thereon, it is not to be filed in court or preserved beyond the
sitting of the grand jury.
132.380
Whom the grand jury may indict.
The grand jury may indict a person for a crime when it believes the person
guilty thereof, whether such person has been held to answer for such crime or
not. [Amended by 1973 c.836 §50]
132.390
When the grand jury may indict.
The grand jury may find an indictment when all the evidence before it, taken
together, is such as in its judgment would, if unexplained or uncontradicted,
warrant a conviction by the trial jury. [Amended by 1973 c.836 §51]
132.400
Indorsement of indictment as a true bill. An indictment, when found, shall be indorsed a true bill, and such
indorsement signed by the foreman of the jury.
132.410
Finding of indictment; filing; inspection. An indictment, when found and indorsed, as provided in ORS 132.400 and
132.580, shall be filed with the clerk of the court, in whose office it shall
remain as a public record. Upon being designated by the district attorney as
confidential and until after the arrest of a defendant who has not been held to
answer the charge, the indictment or any order or process in relation thereto
shall not be inspected by any person other than the judge, the clerk of the
court, the district attorney or a peace officer in the discharge of a duty
concerning the indictment, order or process. [Amended by 1973 c.836 §52; 1999
c.967 §2]
132.420
Disclosure relative to indictment not subject to inspection. No grand juror, reporter or other person
except the district attorney or a peace officer in the exercise of duties in
effecting an arrest shall disclose any fact concerning any indictment while it
is not subject to public inspection. [Amended by 1973 c.836 §53]
132.430
Finding against indictment; indorsement not a true bill. (1) When a person has been held to answer a
criminal charge and the indictment in relation thereto is not found a true
bill, it must be indorsed not a true bill, which indorsement must be signed
by the foreman and filed with the clerk of the court, in whose office it shall
remain a public record. In the case of an indictment not found a true bill
against a person not so held, the same, together with the minutes of the
evidence in relation thereto, must be destroyed by the grand jury.
(2) When an indictment indorsed not a
true bill has been filed with the clerk of the court, the effect thereof is to
dismiss the charge; and the same cannot be again submitted to or inquired of by
the grand jury unless the court so orders. [Amended by 1973 c.836 §54]
132.440
Inquiry into conditions in correctional and youth correction facilities. (1) At least once yearly, a grand jury shall
inquire into the condition and management of every correctional facility and
youth correction facility as defined in ORS 162.135 in the county.
(2) The grand jury is entitled to free
access at all reasonable times to such correctional facilities and juvenile
facilities, and, without charge, to all public records in the county pertaining
thereto.
(3) Other than indictments presented under
ORS 132.310 or presentments presented under ORS 132.370, the grand jury shall
issue no report other than a report of an inquiry made under this section. [Amended
by 1973 c.836 §55; 1985 c.565 §11; 1997 c.249 §44]
SUFFICIENCY
OF INDICTMENT
132.510
Forms and sufficiency of pleadings. The forms of pleading, and the rules by which the sufficiency of
pleadings is to be determined, are those prescribed by the statutes relating to
criminal procedure. [Amended by 1973 c.836 §56]
132.520 [Repealed by 1973 c.836 §358]
132.530 [Repealed by 1973 c.836 §358]
132.540
Matters indictment must import; previous conviction not to be alleged;
exception; use of statutory language. (1) The indictment is sufficient if it can be understood therefrom
that:
(a) The defendant is named, or if the name
of the defendant cannot be discovered, that the defendant is described by a
fictitious name, with the statement that the real name of the defendant is to
the jury unknown.
(b) The crime was committed within the
jurisdiction of the court, except where, as provided by law, the act, though
done without the county in which the court is held, is triable therein.
(c) The crime was committed at some time
prior to the finding of the indictment and within the time limited by law for
the commencement of an action therefor.
(2) The indictment shall not contain
allegations that the defendant has previously been convicted of the violation
of any statute which may subject the defendant to enhanced penalties, except
where the conviction constitutes a material element of the crime charged.
(3) Words used in a statute to define a
crime need not be strictly pursued in the indictment, but other words conveying
the same meaning may be used. [Amended by 1957 c.657 §1; 1973 c.836 §57]
132.550
Content. The indictment
shall contain substantially the following:
(1) The name of the circuit court in which
it is filed;
(2) The title of the action;
(3) A statement that the grand jury
accuses the defendant or defendants of the designated offense or offenses;
(4) A separate accusation or count
addressed to each offense charged, if there be more than one;
(5) A statement in each count that the
offense charged therein was committed in a designated county;
(6) A statement in each count that the
offense charged therein was committed on, or on or about, a designated date, or
during a designated period of time;
(7) A statement of the acts constituting
the offense in ordinary and concise language, without repetition, and in such
manner as to enable a person of common understanding to know what is intended;
(8) The signatures of the foreman and of
the district attorney; and
(9) The date the indictment is filed with
the clerk of the court. [Amended by 1973 c.836 §58; 2007 c.71 §32]
132.557
Indictment must contain subcategory facts under certain circumstances. (1) When a person is charged with a crime
committed on or after November 1, 1989, that includes subcategories under the
rules of the Oregon Criminal Justice Commission, the state is required to plead
specially in the indictment, in addition to the elements of the crime, any
subcategory fact on which the state intends to rely to enhance the crime for
sentencing purposes. The state shall plead the elements and subcategory facts
in a single count. Nothing in this subsection precludes the pleading of
alternative theories.
(2) The state must prove each subcategory
fact beyond a reasonable doubt and the jury shall return a special verdict of yes
or no on each subcategory fact submitted. [1995 c.520 §6]
Note: 132.557 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 132 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
132.560
Joinder of counts and charges; consolidation of charging instruments. (1) A charging instrument must charge but
one offense, and in one form only, except that:
(a) Where the offense may be committed by
the use of different means, the charging instrument may allege the means in the
alternative.
(b) Two or more offenses may be charged in
the same charging instrument in a separate count for each offense if the
offenses charged are alleged to have been committed by the same person or
persons and are:
(A) Of the same or similar character;
(B) Based on the same act or transaction;
or
(C) Based on two or more acts or
transactions connected together or constituting parts of a common scheme or
plan.
(2) If two or more charging instruments
are found in circumstances described in subsection (1)(b) of this section, the
court may order them to be consolidated.
(3) If it appears, upon motion, that the
state or defendant is substantially prejudiced by a joinder of offenses under
subsection (1) or (2) of this section, the court may order an election or
separate trials of counts or provide whatever other relief justice requires.
(4) As used in this section, charging
instrument means any written instrument sufficient under the law to charge a
person with an offense, and shall include, but not be limited to, grand jury
indictments, informations, complaints and uniform traffic, game or boating
complaints. [Amended by 1989 c.842 §1; 1993 c.278 §1; 1999 c.1040 §17]
132.570 [Renumbered 135.713]
132.580
Names of grand jury witnesses on indictment; effect of failure to include; procedure
to remedy failure. (1) When
an indictment is found, the names of the witnesses examined before the grand
jury that returned the indictment, either by testimony in the presence of the
grand jury, by affidavit, by means of simultaneous television transmission
under ORS 132.320 (5) or by telephone under ORS 132.320 (7), and the names of
those whose reports were received by such grand jury pursuant to ORS 132.320
(2) must be inserted at the foot of the indictment, or indorsed thereon, before
it is filed. The indorsement shall show whether the witness gave testimony
before the grand jury in person, by affidavit, by means of simultaneous
television transmission or by telephone or filed a report.
(2) A witness examined before the grand
jury whose name is not indorsed on the indictment shall not be permitted to
testify at trial without the consent of the defendant, unless the court finds
that:
(a) The name of the witness was omitted
from the indictment by inadvertence;
(b) The name of the witness was furnished
to the defendant by the state at least 10 days before trial; and
(c) The defendant will not be prejudiced
by the omission. [Amended by 1973 c.836 §59; 1995 c.126 §2; 2003 c.645 §8]
132.585 [Repealed by 1959 c.426 §1]
ACCUSATORY
INSTRUMENTS
132.586
Pleading domestic violence in accusatory instrument. (1) As used in this section, domestic
violence has the meaning given that term in ORS 135.230.
(2) When a crime involves domestic
violence, the accusatory instrument may plead, and the prosecution may prove at
trial, domestic violence as an element of the crime. When a crime is so
pleaded, the words constituting domestic violence may be added to the title
of the crime. [2003 c.319 §1]
132.590 [Renumbered 135.715]
132.610 [Renumbered 135.717]
132.620 [Renumbered 135.720]
132.630 [Renumbered 135.725]
132.640 [Renumbered 135.727]
132.650 [Repealed by 1973 c.836 §358]
132.660 [Renumbered 135.730]
132.670 [Amended by 1971 c.743 §319; renumbered
135.733]
132.680 [Renumbered 135.735]
132.690 [Amended by 1971 c.743 §320; renumbered
135.737]
132.710 [Renumbered 135.740]
132.720 [Renumbered 135.743]
PENALTIES
132.990
Premature inspection or disclosure of contents of indictment. Violation of ORS 132.420 or the prohibitions
of ORS 132.410 is punishable as contempt.
_______________
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