2007 Oregon Code - Chapter 136 :: Chapter 136 - Criminal Trials
Chapter 136
Criminal Trials
2007 EDITION
CRIMINAL TRIALS
PROCEDURE IN CRIMINAL MATTERS GENERALLY
GENERAL PROVISIONS
136.001 Right
to jury trial; waiver
136.005 Challenge
to jury panel
136.010 When
issue of fact arises
136.030 How
issues are tried
136.040 When
presence of defendant is necessary
136.050 Degree
of crime for which guilty defendant can be convicted when doubt as to degree
exists
136.060 Jointly
charged defendants to be tried jointly; exception
136.070 Postponement
of trial
136.080 Deposition
of witness as condition of postponement
136.090 Procedure
for taking deposition
136.100 Filing
and use of deposition
136.110 Commitment
of defendant after release
136.120 Dismissal
when prosecutor unprepared for trial
136.130 Effect
of dismissal on subsequent prosecution for same crime
136.140 Proceedings
after judgment of acquittal
136.145 Setting
of court dates when presence of victim required
SELECTION OF JURY
136.210 Jury
number; examination
136.220 Challenge
for implied bias
136.230 Peremptory
challenges
136.240 Challenge
of accepted juror
136.250 Taking
of challenges; number of challenges if two or more defendants
136.260 Selection
of alternate jurors; peremptory challenges
136.270 Oath,
rules governing conduct and attendance of alternate jurors at trial
136.280 Substitution
of alternate for juror dying or becoming disabled; dismissal
SCHEDULING OF TRIAL
136.285 Priority
in trial schedule for defendants in custody
136.290 Limitation
on time defendant held prior to trial; release of defendant if limit exceeded
136.295 Application
of ORS 136.290
136.300 Time
limit on appeals to circuit court
CONDUCT OF TRIAL
136.310 Function
of court; effect of judicial notice of a fact
136.320 Function
of jury; acceptance of charge on law
136.325 Jury
not to be informed of and not to consider punishment that may be imposed
136.330 Trial
procedure; polling jurors in writing
136.345 When
attendance of woman officer is required
136.347 Appointment,
duties and compensation of woman officer
EVIDENCE
136.415 Presumption
as to innocence; acquittal in doubtful cases
136.420 Testimony
shall be given orally; exception
136.425 Confessions
and admissions; corroboration
136.430 Applicability
of laws of evidence in civil actions to criminal trials; exceptions
136.432 Limitation
on courts authority to exclude relevant evidence
136.435 Admissibility
of evidence from defendant not advised of rights
136.440 Testimony
of accomplice; corroboration; accomplice defined
136.445 Motion
for acquittal; standard for granting motion; effect
136.447 Medical
records
VERDICT AND JUDGMENT
136.450 Number
of jurors required for verdict
136.455 General
verdict on plea of not guilty
136.460 Verdict
where crime consists of degrees
136.465 Verdict
where crime or attempt included within charge
136.470 Conviction
or acquittal of one or more of several defendants
136.475 Verdict
as to some of several defendants; retrial of others
136.480 Reconsideration
of verdict when jury makes mistake as to law
136.485 Reconsideration
of verdict which is not general verdict
136.490 Discharge
of defendant upon acquittal; exception
136.495 Proceedings
after adverse general verdict
MOTION IN ARREST OF JUDGMENT; NEW TRIAL
136.500 Motion
in arrest; basis and time for making
136.505 Effect
of allowance of motion
136.515 Order
when evidence shows guilt; new charge
136.525 Order
when evidence is insufficient; acquittal
136.535 Application
of ORS 19.430 and ORCP 64 A, B and D to G to new trials
WITNESSES
(Generally)
136.555 Subpoena
defined
136.557 Issuance
of subpoena by magistrate for witnesses at preliminary examination
136.563 Issuance
of subpoena by district attorney for witnesses before grand jury
136.565 Issuance
of subpoena by district attorney for witnesses at trial
136.567 Issuance
of subpoena for witnesses for defendant; bar to dismissal
136.570 Proceeding
to obtain subpoenas for more than 10 witnesses
136.575 Forms
of subpoenas
136.580 Subpoenas
when books, papers or documents are required
136.585 By
whom subpoena is served
136.595 How
subpoena is served; proof of service; service on law enforcement agency
136.600 Certain
civil procedures applicable to criminal proceedings
136.602 Witness
fees payable by county; method of payment; defense witness fees payable by
defendant
136.603 Payment
of witness who is from outside state or is indigent
(Material Witness Order)
136.608 Application
procedure
136.611 Court
action upon receipt of application
136.612 Hearing;
security amount; vacation or modification of order
136.614 Witness
held in detention facility; payment
(Compelling Witnesses)
136.617 Proceedings
to compel witness who may be incriminated thereby to testify
136.619 Immunity
of witness compelled to testify
(Uniform Act to Secure Attendance of
Witnesses From Without a State in Criminal Proceedings)
136.623 Definitions
136.625 Where
witness material to proceeding in another state is in this state
136.627 Where
witness material to proceeding in this state is in another state
136.633 Immunity
of witness from arrest or service of process
136.635 Construction
of ORS 136.623 to 136.637
136.637 Short
title
(Competency)
136.643 Defendant
as witness
136.645 Codefendant
as witness
136.655 Husband
or wife as witness
(Hypnotized Witnesses)
136.675 Conditions
for use of testimony of persons subjected to hypnosis
136.685 Law
enforcement personnel required to advise hypnosis subjects of consequences;
consent of subject required
136.695 Evidence
obtained in violation of ORS 136.675 or 136.685 inadmissible
PROCEDURE TO RELY ON ENHANCEMENT FACT AT
SENTENCING
136.760 Definitions
for ORS 136.765 to 136.785
136.765 Notice
to defendant
136.770 Enhancement
fact related to offense
136.773 Enhancement
fact related to defendant
136.776 Effect
of waiver of right to jury trial
136.780 Evidence
136.785 Burden
of proof; effect of finding
136.790 Notice
to defendant upon remand
136.792 Jury
upon remand
GENERAL PROVISIONS
136.001
Right to jury trial; waiver.
(1) The defendant and the state in all criminal prosecutions have the right to
public trial by an impartial jury.
(2) Both the defendant and the state may
elect to waive trial by jury and consent to a trial by the judge of the court
alone, provided that the election of the defendant is in writing and with the
consent of the trial judge. [1973 c.836 §221; 1997 c.313 §21]
136.005
Challenge to jury panel. (1)
The district attorney or the defendant in a criminal action may challenge the
jury panel on the ground that there has been a material departure from the
requirements of the law governing selection of jurors by filing a motion with
the court supported by an affidavit alleging facts that, if true, constitute a
material departure from the requirements of the law governing the selection of
jurors. The party making the motion shall serve the motion and supporting
affidavit on the other party, the trial court administrator and the State Court
Administrator.
(2) A challenge to the panel shall be made
before the voir dire examination of the jury.
(3) If the court determines that there has
been a material departure from the requirements of the law governing selection
of jurors, the court shall:
(a) Stay the proceedings pending the
selection of a jury panel in conformity with the applicable provisions of law;
and
(b) Grant such other relief as may be
appropriate.
(4) The procedures prescribed by this
section are the exclusive means by which a district attorney or defendant may
challenge a jury panel. [1973 c.836 §222; 2001 c.779 §17]
136.010
When issue of fact arises.
An issue of fact arises upon a plea of not guilty. [Amended by 1973 c.836 §223]
136.020 [Repealed by 1973 c.836 §358]
136.030
How issues are tried. An
issue of law shall be tried by the judge of the court and an issue of fact by a
jury of the county in which the action is triable. [Amended by 1973 c.836 §224]
136.040
When presence of defendant is necessary. (1) If the charge is for a misdemeanor, the trial may be had in the
absence of the defendant if the defendant appears by counsel; but if it is for
a felony, the defendant shall appear in person.
(2) Notwithstanding the provisions of
subsection (1) of this section, if the charge is for a misdemeanor, the trial
may be had in the absence of the defendant and defendants counsel if the
misdemeanor is treated as a violation under ORS 161.566 or 161.568. [Amended by
1973 c.836 §225; 1993 c.533 §3; 1999 c.1051 §123]
136.050
Degree of crime for which guilty defendant can be convicted when doubt as to
degree exists. When it
appears that the defendant has committed a crime of which there are two or more
degrees and there is a reasonable doubt as to the degree of which the defendant
is guilty, the defendant can be convicted of the lowest of those degrees only.
136.060
Jointly charged defendants to be tried jointly; exception. (1) Jointly charged defendants shall be
tried jointly unless the court concludes before trial that it is clearly
inappropriate to do so and orders that a defendant be tried separately. In
reaching its conclusion the court shall strongly consider the victims interest
in a joint trial.
(2) In ruling on a motion by a defendant
for severance, the court may order the prosecution to deliver to the court for
inspection in camera any statements or confessions made by any defendant that
the prosecution intends to introduce in evidence at the trial. [Amended by 1983
c.705 §1; 1987 c.2 §6]
136.070
Postponement of trial. When
a case is at issue upon a question of fact and before the same is called for
trial, the court may, upon sufficient cause shown by the affidavit of the
defendant or the statement of the district attorney, direct the trial to be
postponed for a reasonable period of time. [Amended by 1959 c.638 §18; 1973
c.836 §226]
136.080
Deposition of witness as condition of postponement. When an application is made for the
postponement of a trial, the court may in its discretion require as a condition
precedent to granting the same that the party applying therefor consent that
the deposition of a witness may be taken and read on the trial of the case.
Unless such consent is given, the court may refuse to allow such postponement
for any cause.
136.090
Procedure for taking deposition. When the consent mentioned in ORS 136.080 is given, the court shall
make an order appointing some proper time and place for taking the deposition
of the witness, either by the judge thereof or before some suitable person to
be named therein as commissioner and upon either written or oral
interrogatories.
136.100
Filing and use of deposition.
Upon the making of the order provided in ORS 136.090, the deposition shall be
taken and filed in court and may be read on the trial of the case in like
manner and with like effect and subject to the same objections as in civil
cases.
136.110
Commitment of defendant after release. When a defendant who has been released appears for trial, the court
may in its discretion at any time after such appearance order the defendant to
be committed to actual custody to abide the judgment or further order of the
court; and the defendant shall be committed and held in custody accordingly. [Amended
by 1973 c.836 §227]
136.120
Dismissal when prosecutor unprepared for trial. If, when the case is called for trial, the
defendant appears for trial and the district attorney is not ready and does not
show any sufficient cause for postponing the trial, the court shall order the
accusatory instrument to be dismissed, unless, being of the opinion that the
public interests require the accusatory instrument to be retained for trial,
the court directs it to be retained. [Amended by 1973 c.836 §228]
136.130
Effect of dismissal on subsequent prosecution for same crime. If the court orders the accusatory
instrument to be dismissed and the instrument charges a felony or Class A
misdemeanor, the order is not a bar to another action for the same crime unless
the court so directs. If the court does so direct, judgment of acquittal shall
be entered. If the accusatory instrument charges an offense other than a felony
or Class A misdemeanor, the order of dismissal shall be a bar to another action
for the same offense. [Amended by 1973 c.836 §229]
136.140
Proceedings after judgment of acquittal. If, upon the dismissal of the accusatory instrument, the court gives
judgment of acquittal, the same proceedings shall be had thereon in relation to
the custody or release of the defendant as are prescribed in ORS 135.680. [Amended
by 1973 c.836 §230]
136.145
Setting of court dates when presence of victim required. When resetting any trial date or setting any
court hearing requiring the presence of the victim, the court shall take the
victim into consideration. The court shall inquire of the district attorney as
to whether the victim has been informed of the prospective date and whether
that date is convenient for the victim. [1987 c.2 §4]
136.150 [Amended by 1963 c.503 §1; repealed by 1971
c.743 §432]
136.160 [Amended by 1965 c.551 §1; repealed by 1971
c.743 §432]
SELECTION OF
JURY
136.210
Jury number; examination.
(1) Except as provided in subsection (2) of this section, in criminal cases the
trial jury shall consist of 12 persons unless the parties consent to a less
number. It shall be formed, except as otherwise provided in ORS 136.220 to
136.250, in the same manner provided by ORCP 57 B, D(1)(a), D(1)(b), D(1)(g)
and E. When the full number of jurors has been called, they shall thereupon be
examined as to their qualifications, first by the court, then by the defendant
and then by the state. After they have been passed for cause, peremptory challenges,
if any, shall be exercised as provided in ORS 136.230.
(2) In criminal cases in the circuit
courts in which the only charges to be tried are misdemeanors, the trial jury
shall consist of six persons. [Amended by 1973 c.836 §231; 1979 c.284 §112;
1979 c.488 §2; 1991 c.247 §1; 1995 c.658 §76]
136.220
Challenge for implied bias.
A challenge for implied bias shall be allowed for any of the following causes
and for no other:
(1) Consanguinity or affinity within the
fourth degree to the person alleged to be injured by the offense charged in the
accusatory instrument, to the complainant or to the defendant.
(2) Standing in the relation of guardian
and ward, attorney and client, physician and patient, master and servant,
debtor and creditor, principal and agent or landlord and tenant with the:
(a) Defendant;
(b) Person alleged to be injured by the
offense charged in the accusatory instrument; or
(c) Complainant.
(3) Being a member of the family, a
partner in business with or in the employment of any person referred to in
subsection (2)(a), (b) or (c) of this section or a surety in the action or
otherwise for the defendant.
(4) Having served on the grand jury which
found the indictment or on a jury of inquest which inquired into the death of a
person whose death is the subject of the indictment or information.
(5) Having been one of a jury formerly
sworn in the same action, and whose verdict was set aside or which was
discharged without a verdict after the cause was submitted to it.
(6) Having served as a juror in a civil
action, suit or proceeding brought against the defendant for substantially the
same act charged as an offense.
(7) Having served as a juror in a criminal
action upon substantially the same facts, transaction or criminal episode. [Amended
by 1961 c.444 §1; 1967 c.372 §1; 1973 c.836 §232; 1999 c.1051 §252]
136.230
Peremptory challenges. (1)
If the trial is upon an accusatory instrument in which one or more of the
crimes charged is punishable with imprisonment in a Department of Corrections
institution for life or is a capital offense, both the defendant and the state
are entitled to 12 peremptory challenges, and no more. In any trial before more
than six jurors, both are entitled to six. In any trial before six jurors, both
are entitled to three.
(2) Peremptory challenges shall be taken
in writing by secret ballot as follows:
(a) The defendant may challenge two jurors
and the state may challenge two, and so alternating, the defendant exercising
two challenges and the state two until the peremptory challenges are exhausted.
(b) After each challenge the panel shall
be filled and the additional juror passed for cause before another peremptory
challenge is exercised. Neither party shall be required to exercise a
peremptory challenge unless the full number of jurors is in the jury box at the
time.
(c) The refusal to challenge by either
party in order of alternation does not prevent the adverse party from
exercising that adverse partys full number of challenges, and such refusal on
the part of a party to exercise a challenge in proper turn concludes that party
as to the jurors once accepted by that party. If that partys right of
peremptory challenge is not exhausted, that partys further challenges shall be
confined, in that partys proper turn, to such additional jurors as may be
called.
(3) Notwithstanding subsection (2) of this
section, the defendant and the state may stipulate to taking peremptory
challenges orally.
(4) Peremptory challenges are subject to
ORCP 57 D(4). [Amended by 1973 c.836 §233; 1977 c.63 §1; 1987 c.2 §7; 1987
c.320 §26; 1995 c.530 §2; 1997 c.801 §70]
136.240
Challenge of accepted juror.
If the peremptory challenges of the moving party are not already exhausted, the
court may for good cause shown permit a challenge to be taken to any juror
before the jury is completed and sworn, notwithstanding the juror challenged
may have been theretofore accepted.
136.250
Taking of challenges; number of challenges if two or more defendants. All peremptory challenges may be taken by
the state or defendant, but when several defendants are tried together, the
defendants are entitled to the number of challenges they would have had if each
defendant had been tried separately. When two or more defendants are tried
together, the state is entitled to the same total number of peremptory
challenges as the sum of the peremptory challenges the defendants could have
exercised. [Amended by 1973 c.836 §234; 1997 c.511 §2]
136.260
Selection of alternate jurors; peremptory challenges. (1)(a) In the trial of a person charged with
a crime, the court may in its discretion, after the jury is impaneled and
sworn, direct the calling of additional jurors, to be known as alternate
jurors. The court may call:
(A) One to six additional jurors if the
person is charged with a felony; and
(B) One to three additional jurors if the
person is charged with a misdemeanor.
(b) Jurors called under paragraph (a) of
this subsection:
(A) Must be drawn from the same source and
in the same manner and must have the same qualifications as other jurors in the
case.
(B) Are subject to the same examination
and may be challenged in the same manner as other jurors.
(c) In the drawing of alternate jurors,
the names of jurors excused for cause or on peremptory challenges in the
selection of the jury to which the jurors shall serve as alternates must be
excluded from the names from which the drawing is made.
(2) Each side is entitled to the following
peremptory challenges in addition to those otherwise allowed by statute:
(a) If one or two alternate jurors are to
be impaneled, each side is entitled to one peremptory challenge.
(b) If three or four alternate jurors are
to be impaneled, each side is entitled to two peremptory challenges.
(c) If five or six alternate jurors are to
be impaneled, each side is entitled to three peremptory challenges.
(3) The additional peremptory challenges
may be used against an alternate juror only, and the other peremptory
challenges allowed by statute may not be used against an alternate juror. [Amended
by 1991 c.725 §1; 2003 c.358 §1]
136.270
Oath, rules governing conduct and attendance of alternate jurors at trial. Alternate jurors shall take the same oath
and shall be subject to the same laws, orders and rules, including any order preventing
the separation of the jury during the trial, shall be seated near the other
jurors in the case, with equal opportunity and facilities for seeing and
hearing the proceedings and shall attend at all times upon the trial of the
case in company with the other jurors.
136.280
Substitution of alternate for juror dying or becoming disabled; dismissal. If, before the final submission of the case,
any juror dies or is unable to perform the duty because of illness or other
cause which the court deems sufficient, the juror shall be dismissed from the
case. Except as provided by ORS 163.150, the court shall cause to be drawn the
name of an alternate juror, who shall then become a member of the jury as
though the alternate juror had been selected as one of the original jurors.
Except as provided in ORS 136.773 (5), any alternate juror not selected to
become a member of the jury shall be dismissed from the case upon its final
submission to the jury. [Amended by 1991 c.725 §3; 2005 c.463 §§18,19; 2007
c.16 §8]
SCHEDULING OF
TRIAL
136.285
Priority in trial schedule for defendants in custody. The court shall endeavor to schedule trial
dates for defendants in custody before defendants who have been released
pending trial, subject however to rights of all defendants to be tried without
unreasonable delay. [1971 c.323 §2]
136.290
Limitation on time defendant held prior to trial; release of defendant if limit
exceeded. (1) Except as
provided in ORS 136.295, a defendant shall not remain in custody pending
commencement of the trial of the defendant more than 60 days after the time of
arrest unless the trial is continued with the express consent of the defendant.
Absent the consent of the defendant or an extension under ORS 136.295, the
court shall order that the trial of the defendant commence within 60 days after
arrest if the state is prepared to proceed to trial.
(2) If a trial is not commenced within the
period required by subsection (1) of this section, the court shall release the
defendant on the own recognizance of the defendant, or in the custody of a
third party, or upon whatever additional reasonable terms and conditions the
court deems just as provided in ORS 135.230 to 135.290. [1971 c.323 §§3, 4;
1973 c.836 §235; 1999 c.923 §1; amendments by 1999 c.923 §3 repealed by 2001
c.870 §19]
136.295
Application of ORS 136.290.
(1) ORS 136.290 does not apply to persons charged with crimes which are not
releasable offenses under ORS 135.240 or to persons charged with conspiracy to
commit murder, or charged with attempted murder, or to prisoners serving
sentences resulting from prior convictions.
(2) If the defendant is extradited from
another jurisdiction, the 60-day period shall not commence until the defendant
enters the State of
(3) Any reasonable delay resulting from
examination or hearing regarding the defendants mental condition or competency
to stand trial, or resulting from other motion or appeal by the defendant,
shall not be included in the 60-day period.
(4)(a) If a victim or witness to the crime
in question is unable to testify within the original 60-day period because of
injuries received at the time the alleged crime was committed or upon a showing
of good cause, the court may order an extension of custody and postponement of
the date of the trial of not more than 60 additional days. The court, for the
same reason, may order a second extension of custody and postponement of the
date of the trial of not more than 60 days, but in no event shall the defendant
be held in custody before trial for more than a total of 180 days. A court may
grant an extension based upon good cause as described in paragraph (b)(C), (D)
or (E) of this subsection only if requested by the defendant or defense counsel
or by the court on its own motion.
(b) As used in this subsection, good
cause means situations in which:
(A) The court failed to comply with ORS
136.145 and the victim is unable to attend the trial;
(B) The victim or an essential witness for
either the state or the defense is unable to testify at the trial because of
circumstances beyond the control of the victim or witness;
(C) The attorney for the defendant cannot
reasonably be expected to try the case within the 60-day period;
(D) The attorney for the defendant has
recently been appointed and cannot be ready to try the case within the 60-day
period;
(E) The attorney for the defendant is
unable to try the case within the 60-day period because of conflicting
schedules;
(F) Scientific evidence is necessary and
because of the complexity of the procedures it would be unreasonable to have
the procedures completed within the 60-day period;
(G) The defendant has filed notice under
ORS 161.309 of the defendants intention to rely upon a defense of insanity, partial
responsibility or diminished capacity; or
(H) The defendant has filed any notice of
an affirmative defense within the last 20 days of the 60-day period.
(5) Any period following defendants
arrest in which the defendant is not actually in custody shall not be included
in the 60-day computation. [1971 c.323 §5; 1973 c.836 §236; 1999 c.923 §2;
amendments by 1999 c.923 §4 repealed by 2001 c.870 §19; 2003 c.127 §3]
136.300
Time limit on appeals to circuit court. A defendant who is in custody pending an appeal to circuit court from
a judgment of a municipal court or justice court shall have the appeal of the
defendant heard not more than 60 days after the defendant gives notice of
appeal. [1971 c.323 §6; 1977 c.290 §3]
CONDUCT OF
TRIAL
136.310
Function of court; effect of judicial notice of a fact. All questions of law, including the
admissibility of testimony, the facts preliminary to such admission and the
construction of statutes and other writings and other rules of evidence shall
be decided by the court. All discussions of law shall be addressed to it.
Whenever the knowledge of the court is by statute made evidence of a fact, the
court shall declare such knowledge to the jury, which is bound to accept it as
conclusive, except as provided in ORS 40.085. [Amended by 1983 c.433 §4]
136.320
Function of jury; acceptance of charge on law. Although the jury may find a general
verdict, which includes questions of law as well as fact, it is bound,
nevertheless, to receive as law what is laid down as such by the court; but all
questions of fact, other than those mentioned in ORS 136.310, shall be decided
by the jury, and all evidence thereon addressed to it.
136.325
Jury not to be informed of and not to consider punishment that may be imposed. Except as required in ORS 161.313 and
163.150, the jury in a criminal proceeding may not be informed of, and may not
consider, any punishment that the court may impose if the defendant is
convicted of the charge. [1997 c.852 §10]
Note: 136.325 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 136 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
136.330
Trial procedure; polling jurors in writing. (1) ORS 10.100 and ORCP 58 B, C and D and 59 B through F and G(1),
(3), (4) and (5), apply to and regulate the conduct of the trial of criminal
actions. The jury in a criminal action may, in the discretion of the court, be
polled in writing. If the jury is polled in writing, the written results shall
be sealed and placed in the court record.
(2) ORCP 59 H applies to and regulates
exceptions in criminal actions. [Amended by 1959 c.558 §31; 1979 c.284 §113;
1985 c.703 §27]
136.340 [Repealed by 1973 c.836 §358]
136.345
When attendance of woman officer is required. Whenever any woman or girl is interrogated with reference to the
commission of any sexual crime, is accused of or charged with the commission of
any sexual crime before any committing magistrate and is taken into custody
therefor, or is called as a witness at a hearing before a committing magistrate
with reference to any such class of crimes, and whether such crime has been
committed by her or by some other person, she shall only be orally examined by
or in the presence of a woman officer, appointed as provided in ORS 136.347. [Formerly
133.770]
136.347
Appointment, duties and compensation of woman officer. The court or officer before whom any female
person mentioned in ORS 136.345 is interrogated, taken into custody or called
as a witness, shall appoint some suitable female person who shall conduct or be
present at the examination of such accused person or witness or receive or be
present at the receiving or making of any confession or statement which such
accused person or witness desires to make. The compensation of any such person,
when so appointed, shall be paid out of the general funds of the county wherein
such proceeding is had by the county treasurer of the county, upon vouchers
signed by the judge of the court or the officer making such appointment, which
vouchers shall certify the nature and extent of the services performed and the
amount of compensation due the person in whose favor the same is drawn. [Formerly
133.780]
136.350 [Repealed by 1973 c.836 §358]
136.360 [Repealed by 1961 c.288 §2]
136.370 [Repealed by 1961 c.288 §2]
136.380 [Repealed by 1961 c.288 §2]
136.390 [Amended by 1957 c.380 §1; repealed by 1971
c.743 §432]
136.400 [Repealed by 1971 c.743 §432]
136.410 [Repealed by 1971 c.743 §432]
EVIDENCE
136.415
Presumption as to innocence; acquittal in doubtful cases. A defendant in a criminal action is presumed
to be innocent until the contrary is proved. In case of a reasonable doubt
whether the guilt of the defendant is satisfactorily shown, the defendant is
entitled to be acquitted. [Formerly 136.520]
136.420
Testimony shall be given orally; exception. In a criminal action, the testimony of a witness shall be given orally
in the presence of the court and jury, except in the case of a witness whose
testimony is taken by deposition by order of the court in pursuance of the
consent of the parties, as provided in ORS 136.080 to 136.100. [Formerly
136.530]
136.425
Confessions and admissions; corroboration. (1) A confession or admission of a defendant, whether in the course of
judicial proceedings or otherwise, cannot be given in evidence against the
defendant when it was made under the influence of fear produced by threats; nor
is a confession only sufficient to warrant the conviction of the defendant
without some other proof that the crime has been committed.
(2) Evidence of a defendants conduct in
relation to a declaration or act of another, in the presence and within the
observation of the defendant, cannot be given when the defendants conduct
occurred while the defendant was in the custody of a peace officer unless the
defendants conduct affirmatively indicated the belief of the defendant in the
truth of the matter stated or implied in the declaration or act of the other
person. [Formerly 136.540]
136.430
Applicability of laws of evidence in civil actions to criminal trials;
exceptions. The law of
evidence in civil actions is also the law of evidence in criminal actions and
proceedings, except as otherwise specifically provided in the statutes relating
to crimes and criminal procedure. [Formerly 136.510]
136.432
Limitation on courts authority to exclude relevant evidence. A court may not exclude relevant and
otherwise admissible evidence in a criminal action on the grounds that it was
obtained in violation of any statutory provision unless exclusion of the
evidence is required by:
(1) The
(2) The rules of evidence governing
privileges and the admission of hearsay; or
(3) The rights of the press. [1997 c.313 §1]
Note: 136.432 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 136 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
136.435
Admissibility of evidence from defendant not advised of rights. Evidence obtained directly or indirectly as
a result of failure of a magistrate to comply with ORS 135.070 shall not be
admissible, over the objection of the defendant, in any court. [Formerly
136.545]
136.440
Testimony of accomplice; corroboration; accomplice defined. (1) A conviction cannot be had upon the
testimony of an accomplice unless it is corroborated by other evidence that
tends to connect the defendant with the commission of the offense. The
corroboration is not sufficient if it merely shows the commission of the
offense or the circumstances of the commission.
(2) As used in this section, an accomplice
means a witness in a criminal action who, according to the evidence adduced in
the action, is criminally liable for the conduct of the defendant under ORS
161.155 and 161.165, or, if the witness is a juvenile, has committed a
delinquent act, which, if committed by an adult, would make the adult criminally
liable for the conduct of the defendant. [Formerly 136.550]
136.445
Motion for acquittal; standard for granting motion; effect. In any criminal action the defendant may,
after close of the states evidence or of all the evidence, move the court for
a judgment of acquittal. The court shall grant the motion if the evidence
introduced theretofore is such as would not support a verdict against the
defendant. The acquittal shall be a bar to another prosecution for the same
offense. [Formerly 136.605]
136.447
Medical records. Medical
records may be obtained by subpoena as provided in ORCP 55 H and shall be sent
only to the court or the clerk of the court before which the matter is pending.
In relation to grand jury proceedings, notice need not be given as required in
ORCP 55 H and the medical records shall be sent only to the grand jury. [1995
c.196 §2]
VERDICT AND
JUDGMENT
136.450
Number of jurors required for verdict. (1) Except as otherwise provided in subsection (2) of this section,
the verdict of a trial jury in a criminal action shall be by concurrence of at
least 10 of 12 jurors.
(2) Except when the state requests a
unanimous verdict, a verdict of guilty for murder or aggravated murder shall be
by concurrence of at least 11 of 12 jurors. [Formerly 136.610; 1997 c.313 §25]
136.455
General verdict on plea of not guilty. A general verdict upon a plea of not guilty is either guilty, of an
offense charged in the accusatory instrument, or not guilty. [Formerly
136.620]
136.460
Verdict where crime consists of degrees. (1) Upon a charge for a crime consisting of different degrees, the
jury may find the defendant not guilty of the degree charged in the accusatory
instrument and guilty of any degree inferior thereto or of an attempt to commit
the crime or any such inferior degree thereof.
(2) The jury shall first consider the
charged offense. Only if the jury finds the defendant not guilty of the charged
offense may the jury consider a lesser included offense. If there is more than
one lesser included offense, the jury shall consider the lesser included
offenses in order of seriousness. The jury may consider a less serious lesser
included offense only after finding the defendant not guilty of any more
serious lesser included offenses.
(3) When a jury finds a defendant guilty
of a lesser included offense, the court, upon a request by the state or
defendant, shall poll the jury on the original charge. If fewer than the
required number of jurors vote to find the defendant not guilty on the original
charge, the court shall not receive the verdict and shall instruct the jury to
continue deliberations.
(4) If the jury is unable to reach a
decision on the original charge, the state and defendant may stipulate that the
jury may consider any lesser included offense. [Formerly 136.650; 1997 c.511 §1]
136.465
Verdict where crime or attempt included within charge. In all cases, the defendant may be found
guilty of any crime the commission of which is necessarily included in that
with which the defendant is charged in the accusatory instrument or of an
attempt to commit such crime. [Formerly 136.660]
136.470
Conviction or acquittal of one or more of several defendants. Upon an accusatory instrument against
several defendants, any one or more may be convicted or acquitted. [Formerly
136.670]
136.475
Verdict as to some of several defendants; retrial of others. Upon an accusatory instrument against
several defendants, if the jury cannot agree upon a verdict as to all, it may
give a verdict as to those in regard to whom it does agree, on which a judgment
shall be given accordingly. The case as to the rest of the defendants may be
tried by another jury. [Formerly 136.680]
136.480
Reconsideration of verdict when jury makes mistake as to law. When a verdict is found in which it appears
to the court that the jury has mistaken the law, the court may explain the
reason for that opinion and direct the jury to reconsider its verdict; but if
after such reconsideration the jury finds the same verdict, it must be received.
[Formerly 136.690]
136.485
Reconsideration of verdict which is not general verdict. If the jury finds a verdict which is not a
general verdict, the court may, with proper instructions as to the law, direct
the jury to reconsider it; and the verdict cannot be received until it is given
in some form from which it can be clearly understood that the intent of the
jury is to render a general verdict. [Formerly 136.700]
136.490
Discharge of defendant upon acquittal; exception. If judgment of acquittal is given on a
general verdict and the defendant is not detained for any other legal cause,
the defendant shall be discharged as soon as the judgment is given, except
that, when the acquittal is for variance between the proof and the accusatory
instrument, which may be obviated by a new accusatory instrument, the court may
order the detention of the defendant, to the end that a new accusatory
instrument may be preferred, in the same manner and with like effect, as
provided in ORS 135.540. [Formerly 136.710]
136.495
Proceedings after adverse general verdict. If a general verdict against the defendant is given, the defendant
shall be remanded, if in custody; if the defendant has been released, the
defendant may be committed to await the judgment of the court upon the verdict.
When committed, the release agreement of the defendant is exonerated or, if the
defendant has deposited money in lieu of a release agreement, it shall be
refunded to the defendant. [Formerly 136.720]
MOTION IN
ARREST OF JUDGMENT; NEW TRIAL
136.500
Motion in arrest; basis and time for making. A motion in arrest of judgment is an application on the part of the
defendant that no judgment be rendered on a plea or verdict of guilty. It may
be founded on either or both of the grounds specified in ORS 135.630 (1) and
(4), and not otherwise. The motion must be made within the time allowed to file
a motion for a new trial, and both such motions may be made and heard as the
court directs. [Formerly 136.810]
136.505
Effect of allowance of motion.
The effect of allowing a motion in arrest of judgment is to place the defendant
in the same situation in which the defendant was before indictment was found. [Formerly
136.820]
136.510 [Amended by 1973 c.836 §237; renumbered
136.430]
136.515
Order when evidence shows guilt; new charge. If, from the evidence given on the trial, there is reasonable ground
to believe the defendant guilty and a new accusatory instrument can be framed
upon which the defendant may be convicted, the court shall order the defendant
to be recommitted to custody or released and to answer the new accusatory
instrument, if one is found; and if the evidence shows the defendant to be
guilty of another offense than that charged in the accusatory instrument, the
defendant shall in like manner be committed or held thereon. In neither case is
the verdict a bar to another action for the same crime. [Formerly 136.830]
136.520 [Renumbered 136.415]
136.525
Order when evidence is insufficient; acquittal. If the evidence appears insufficient to
charge the defendant with any offense, the defendant shall, if in custody, be
discharged or, if the defendant has been released or deposited money in lieu
thereof, the release agreement of the defendant is exonerated or the money of
the defendant shall be refunded to the defendant; and in such case, the arrest
of judgment operates as an acquittal of the charge upon which the accusatory
instrument was founded. [Formerly 136.840]
136.530 [Renumbered 136.420]
136.535
Application of ORS 19.430 and ORCP 64 A, B and D to G to new trials. Except that a new trial may not be granted
on application of the state, ORS 19.430 and ORCP 64 A, B and D to G apply to
and regulate new trials in criminal actions. [Formerly 136.851; 1979 c.284 §114;
2003 c.288 §1]
136.540 [Amended by 1957 c.567 §1; renumbered
136.425]
136.545 [1963 c.511 §2; 1973 c.836 §238; renumbered
136.435]
136.550 [Amended by 1973 c.836 §239; renumbered
136.440]
WITNESSES
(Generally)
136.555
Subpoena defined. The
process by which the attendance of a witness before a court or magistrate is
required is a subpoena. [Formerly 139.010]
136.557
Issuance of subpoena by magistrate for witnesses at preliminary examination. A magistrate before whom an information is
laid or complaint made may issue subpoenas subscribed by the magistrate for
witnesses within the state, either on behalf of the state or of the defendant. [Formerly
139.020]
136.560 [Amended by 1957 c.551 §1; 1959 c.302 §1;
repealed by 1971 c.743 §432]
136.563
Issuance of subpoena by district attorney for witnesses before grand jury. The district attorney may issue subpoenas
subscribed by the district attorney for witnesses within the state in support
of the prosecution or for such other witnesses as the grand jury directs to
appear before the grand jury upon an investigation pending before it. [Formerly
139.030]
136.565
Issuance of subpoena by district attorney for witnesses at trial. The district attorney may issue subpoenas
subscribed by the district attorney for not to exceed 10 witnesses within the
state in support of an indictment to appear before the court at which it is to
be tried. [Formerly 139.040]
136.567
Issuance of subpoena for witnesses for defendant; bar to dismissal. (1) A defendant in a criminal action is
entitled, at the expense of the state or city, to have subpoenas issued for not
to exceed 10 witnesses within the state. A defendant is entitled, at the
expense of the defendant, to have subpoenas issued for any number of additional
witnesses without an order of the court. The defendant is responsible for the
costs of serving the subpoenas and for the costs, as provided in ORS 136.602,
of witness per diem and mileage and for expenses allowed under ORS 136.603.
(2) Any subpoena that a defendant in a
criminal action is entitled to have issued shall be issued:
(a) Upon application of the defendant, by
the clerk of the court in which the criminal action is pending for trial, and
in blank, under the seal of the court and subscribed by the clerk; or
(b) By an attorney of record of the
defendant, and subscribed by the attorney.
(3) A prosecution for violation of ORS
813.010 may not be dismissed based solely on the unavailability of a witness
who was subpoenaed by the defendant to provide testimony with respect to an
instrument that was used to test a persons breath, blood or urine to determine
the alcoholic content of the persons blood. This subsection does not apply to
the subpoena of an officer or employee of a public body, as defined in ORS
174.109. [Formerly 139.050; 1977 c.746 §4; 1981 c.174 §1; 1987 c.606 §2; 1989
c.171 §17; 2007 c.581 §3]
136.570
Proceeding to obtain subpoenas for more than 10 witnesses. If either party in a criminal action desires
more than 10 witnesses, as provided in ORS 136.565 and 136.567, application
therefor shall be made to the court or judge thereof by motion for an order
allowing the issuance of subpoenas for such additional witnesses, which motion
shall be supported either by the statement of the district attorney or city
attorney in writing or by the affidavit of the defendant. The statement or
affidavit shall state the names of such witnesses, their places of residence
and the facts expected to be proved by each of them. The court or judge thereof
shall make an order allowing the issuance of subpoenas for so many of such
witnesses as appear from such statement or affidavit to be necessary and
material to a fair, full and impartial trial. [Formerly 139.060; 1977 c.746 §5]
136.575
Forms of subpoenas.
Subpoenas authorized by ORS 136.557 to 136.567 shall be substantially in the
following form:
(1) By a magistrate:
______________________________________________________________________________
IN THE NAME OF THE
STATE OF
(or CITY OF______)
To A______ B______:
You are hereby commanded to appear before
C. D., (adding the name of office and place of jurisdiction), at (naming the
place), on (stating the day and hour), as a witness on the examination of a
criminal charge against E. F. on behalf of (the state, city or the defendant,
as the case may be).
Dated the ___ day of ______, 2___.
G. H.
(Adding the name of office and place of
jurisdiction, as in the body of the subpoena.)
______________________________________________________________________________
(2) By the district attorney:
______________________________________________________________________________
IN THE NAME OF THE
STATE OF
To A______ B______:
You are hereby commanded to appear before
(the grand jury of the County of ______ or the Circuit Court for the County of ______,
as the case may be), at (naming the place), on (stating the day and hour), as a
witness (before the grand jury or in a criminal action prosecuted by the State
of Oregon against E. F., as the case may be).
Dated the ___ day of ______, 2___.
G. H., District Attorney.
______________________________________________________________________________
(3) By the city attorney:
______________________________________________________________________________
IN THE NAME OF THE
CITY OF ______
To A______ B______:
You are hereby commanded to appear before
the Municipal Court for the City of ______, at (naming the place), on (stating
the day and hour), as a witness in a criminal action prosecuted by the City of ______
against E. F.
Dated the ___ day of ______, 2___.
G. H., City Attorney.
______________________________________________________________________________
(4) By the clerk:
______________________________________________________________________________
IN THE NAME OF THE
STATE OF
To A______ B______:
You are hereby commanded to appear before
the Circuit Court for the County of ______ at (naming the place), on (stating
the day and hour), as a witness in a criminal action prosecuted by the State of
Oregon against E. F. on behalf of the defendant.
Witness my name and the seal of said
court, affixed at______, the ___ day of______, 2___.
G. H., Clerk.
______________________________________________________________________________
(5) By the clerk of a municipal court:
______________________________________________________________________________
IN THE NAME OF THE
CITY OF ______
To A______ B______:
You are hereby commanded to appear before
the Municipal Court for the City of ______ at (naming the place), on (stating
the day and hour), as a witness in a criminal action prosecuted by the City of ______
against E. F. on behalf of the defendant.
Witness my name and seal of said court,
affixed at ______, the ___ day of ______, 2___.
G. H., Clerk.
______________________________________________________________________________
(6) By an attorney of record of a
defendant:
______________________________________________________________________________
IN THE NAME OF THE
STATE OF
(or CITY OF______)
To A______ B______:
You are hereby commanded to appear before
(the Circuit Court for the County of ______ or the Municipal Court for the City
of ______, as the case may be) at (naming the place), on (stating the day and
hour), as a witness in a criminal action prosecuted by the (State of Oregon or
the City of ______, as the case may be) against E. F. on behalf of the
defendant.
Dated the ___ day of ______, 2___.
G. H., Attorney of Record of Defendant.
______________________________________________________________________________
[Formerly
139.070; 1977 c.746 §6; 1981 c.174 §2]
136.580
Subpoenas when books, papers or documents are required. (1) If books, papers or documents are
required, a direction to the following effect shall be added to the form
provided in ORS 136.575: And you are required, also, to bring with you the
following: (describing intelligibly the books, papers or documents required).
(2) Upon the motion of the state or the
defendant, the court may direct that the books, papers or documents described
in the subpoena be produced before the court prior to the trial or prior to the
time when the books, papers or documents are to be offered in evidence and may,
upon production, permit the books, papers or documents to be inspected and
copied by the state or the defendant and the states or the defendants
attorneys. [Formerly 139.080; 1993 c.304 §1]
136.585
By whom subpoena is served.
A subpoena may be served by the defendant or any other person over 18 years of
age and shall be served by any sheriff or constable within the county or district
of the sheriff or constable, as the case may be, when delivered to the sheriff
or constable for service, either on the part of the prosecution or of the
defendant. [Formerly 139.090; 1977 c.746 §7]
136.595
How subpoena is served; proof of service; service on law enforcement agency. (1) Except as provided in ORS 136.447 and
subsections (2) and (3) of this section, a subpoena is served by delivering a
copy to the witness personally. Proof of the service is made in the same manner
as in the service of a summons.
(2)(a) Every law enforcement agency shall
designate an individual or individuals upon whom service of subpoena may be
made. At least one of the designated individuals shall be available during
normal business hours. In the absence of the designated individuals, service of
subpoena pursuant to paragraph (b) of this subsection may be made upon the
officer in charge of the law enforcement agency.
(b) If a peace officers attendance at
trial is required as a result of employment as a peace officer, a subpoena may
be served on the peace officer by delivering a copy personally to the officer
or to one of the individuals designated by the agency that employs the officer
not later than 10 days prior to the date attendance is sought. A subpoena may be
served in this manner only if the officer is currently employed as a peace
officer and is present within the state at the time of service.
(c) When a subpoena has been served as
provided in paragraph (b) of this subsection, the law enforcement agency shall
make a good faith effort to actually notify the officer whose attendance is
sought of the date, time and location of the court appearance. If the officer
cannot be notified, the law enforcement agency shall contact the court and a
continuance may be granted to allow the officer to be personally served.
(d) As used in this subsection, law
enforcement agency means the Oregon State Police, a county sheriffs
department or a municipal police department.
(3) A subpoena for the production of
papers, documents, records and other tangible things may be served on a
corporation or limited partnership in the manner provided by ORCP 7 D(3) for
the service of a summons.
(4) When a subpoena has been served as
provided in subsection (1), (2) or (3) of this section and, subsequent to
service, the date on, or the time at, which the person subpoenaed is to appear
has changed, a new subpoena is not required to be served if:
(a) The subpoena is continued orally in
open court in the presence of the person subpoenaed; or
(b) The party who issued the original
subpoena notifies the person subpoenaed of the change by first class mail and
by:
(A) Certified or registered mail, return
receipt requested; or
(B) Express mail. [Formerly 139.100; 1977
c.789 §1; 1995 c.196 §3; 2005 c.298 §1; 2007 c.158 §1]
136.600
Certain civil procedures applicable to criminal proceedings. The provisions of ORS 44.150 and ORCP 39 B
and 55 E and G apply in criminal actions, examinations and proceedings. [Formerly
139.110; 1979 c.284 §115; 1989 c.980 §6]
136.602
Witness fees payable by county; method of payment; defense witness fees payable
by defendant. (1) Except as
otherwise specifically provided by law, the per diem fees and mileage and any
expenses allowed under ORS 136.603 due to any witness in a grand jury
proceeding, or any prosecution witness in a criminal action or proceeding in a
circuit or justice court or before a committing magistrate shall be paid by the
county in which the grand jury proceeding or criminal action or proceeding is held.
Payment shall be made upon a claim verified by the witness, showing the number
of days attended and the number of miles traveled, and a certified statement,
prepared by the district attorney, justice of the peace or committing
magistrate, showing the amounts due the witness.
(2) The per diem fees and mileage due to
any defense witness in a criminal action or proceeding in a circuit or justice
court, or before a committing magistrate, and any expenses allowed the witness
under ORS 136.603, shall be paid by the defendant. In the case of a defendant
determined to be financially eligible for appointed counsel at state expense,
these amounts may be paid pursuant to ORS 135.055. [1981 s.s. c.3 §63; 1983
c.401 §1; 1987 c.606 §3; 1989 c.171 §18; 1989 c.1053 §3; 2001 c.962 §87]
136.603
Payment of witness who is from outside state or is indigent. (1)(a) Whenever any person attends any
court, grand jury or committing magistrate as a witness on behalf of the
prosecution or of any person accused of a crime upon request of the district
attorney or city attorney or pursuant to subpoena, or by virtue of a
recognizance for that purpose, and it appears that the witness has come from
outside the state or that the witness is indigent, the court may, by an order
entered in its records, direct payment to the witness of such sum of money as
the court considers reasonable for the expenses of the witness. The order of
the court, so entered, is sufficient authority for the payment.
(b) Except as otherwise specifically
provided by law, if a witness who is to be paid expenses pursuant to this
subsection:
(A) Attends a grand jury, a circuit court
or judge thereof, a judge of a county court or a justice of the peace, on
behalf of the prosecution, payment shall be made by the county.
(B) Attends a municipal court or judge
thereof on behalf of the prosecution, payment shall be made by the city.
(C) Attends a circuit court or judge
thereof on behalf of a financially eligible defendant, payment shall be made by
the public defense services executive director.
(D) Attends a judge of the county court or
a justice of the peace on behalf of a financially eligible defendant, payment
shall be made by the county.
(E) Attends a municipal court or judge
thereof on behalf of a financially eligible defendant, payment shall be made by
the city.
(F) Attends any court on behalf of a
defendant who is not financially eligible, payment shall be made by the
defendant, and the court shall so order.
(2) In the case of a prisoner of a
jurisdiction outside of this state who is required to attend as a witness in
this state, whether for the prosecution or the defense, the sheriff shall be
responsible for transporting the witness to the proper court of this state, and
the sheriff shall assume any costs incurred in connection with the witness
while the witness is in the custody of the sheriff. However, the sheriff and
not the witness shall be entitled to the witness fees, mileage and expenses to
which the witness would otherwise be entitled under this section and ORS
136.627 or other applicable law. [Formerly 139.140; 1977 c.746 §8; 1981 s.s.
c.3 §64; 1983 c.401 §2; 1987 c.606 §5; 1989 c.171 §19; 2001 c.962 §27]
136.605 [1957 c.576 §1; 1973 c.836 §240; renumbered
136.445]
136.607 [Formerly 139.150; 1977 c.746 §9; repealed
by 1995 c.657 §18]
(Material
Witness Order)
136.608
Application procedure. (1)
The district attorney or the defendant may apply to the court for a material
witness order when:
(a) An indictment has been filed, and is
pending, against the defendant in a circuit court;
(b) A grand jury proceeding has been
commenced against the defendant; or
(c) A complainants information or a
district attorneys information alleging that the defendant has committed a
felony has been filed, and is pending, in a court of competent jurisdiction.
(2) The application must be in writing and
sworn to by the applicant. The request must state facts establishing a
reasonable belief that the person the applicant desires to call as a witness:
(a) Possesses information material to the
determination of the action against the defendant; and
(b) Will not appear at the time when
attendance of the witness is required.
(3) The applicant shall file the
application:
(a) If an indictment has been filed, a
grand jury proceeding has been commenced or the defendant has been held to
answer by any court to await the action of a grand jury, in the circuit court
in which the indictment is pending or by which the grand jury has been
impaneled; or
(b) If information alleging the commission
of a felony is pending in a court authorized to hold a preliminary hearing, in
that court or in the circuit court that would have jurisdiction of the case
upon holding the defendant to answer to await the action of the grand jury.
(4) As used in this section and ORS
136.612 and 136.614, material witness order means an order finding a person
to be a material witness in a pending criminal action and fixing a security
amount to be posted to secure future attendance of the witness. [1995 c.657 §14]
Note: 136.608 to 136.614 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
136 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
136.609 [Formerly 139.160; 1977 c.746 §10; repealed
by 1995 c.657 §18]
136.610 [Amended by 1973 c.836 §241; renumbered
136.450]
136.611
Court action upon receipt of application. (1) If, upon receipt of an application under ORS 136.608, the court
determines that the application is well founded, the court shall:
(a) Enter an order directing the
prospective witness to appear before the court at a designated time; or
(b) Issue a warrant of arrest directing
the sheriff to take the person into custody and bring the person before the
court, if the application included facts establishing a reasonable belief that
the prospective witness would not respond to an order to appear.
(2) An order under subsection (1) of this
section must inform the prospective witness of the purpose of the hearing and
must be served in the manner provided in ORCP 7 for the service of a summons.
(3) When the prospective witness appears
before the court, the court shall inform the person:
(a) Of the nature and purpose of the
hearing; and
(b) That the person has all of the rights
of a person in a criminal proceeding including, but not limited to, the right
to counsel, the right to appointed counsel at state expense if the person is
unable to afford counsel and the right to call witnesses and have subpoenas
issued.
(4) The hearing may be postponed at the
request of the prospective witness for the purpose of obtaining counsel. If the
hearing is postponed, the court shall order the prospective witness to appear
at a future time. In addition, the court may require the prospective witness to
pay an amount to secure the persons appearance. If the person refuses to
comply with the order, the court shall commit the person to the jail of the
county, or other appropriate detention facility, until the person complies or
is discharged. [1995 c.657 §15]
Note: See note under 136.608.
136.612
Hearing; security amount; vacation or modification of order. (1) At the hearing to determine whether a
material witness order should be entered:
(a) The applicant has the burden of
proving by a preponderance of the evidence all facts essential to support the
order;
(b) The prospective witness may testify
and may call witnesses;
(c) All testimony is under oath; and
(d) The Oregon Evidence Code shall apply
in any material witness proceeding under ORS 136.611, except that hearsay may
be admitted if the court determines that it would impose an unreasonable
hardship on one of the parties or on a witness to require that the primary
source of the evidence be produced at the hearing, and if the witness furnishes
information bearing on the informants reliability and, as far as possible, the
means by which the information was obtained.
(2) If the court finds by a preponderance
of the evidence that the prospective witness possesses information that is
material to the pending action and will not appear at the time the attendance
of the witness is required, the court shall establish a security amount
calculated to ensure the attendance of the witness and shall enter a material
witness order.
(3)(a) If the security amount is paid, the
court shall release the witness. If someone other than the witness pays the
security amount, the court shall release the witness only if the witness
consents, in writing, to the payment of the security.
(b) If the security amount is not paid,
the court shall commit the witness to the jail of the county, or other
appropriate detention facility, until the witness pays the security amount or
the attendance of the witness is no longer needed in the action.
(4) Unless vacated as provided in
subsection (5) of this section, a material witness order remains in effect:
(a) If issued by a circuit court, during
the pendency of the criminal action in the circuit court; or
(b) If issued by a court other than a circuit
court, until the attendance of the witness is no longer needed in any part of
the criminal action.
(5) At any time after the entry of a
material witness order, the court, upon application of either party to the
order and notice to the other party, may vacate or modify the order. The court
shall consider new, or changed, facts or circumstances. The court may vacate
the order or may modify any part of the order. If the court reduces the
security amount, the court shall exonerate any part of the original security
amount in excess of the modified amount that has been paid. [1995 c.657 §16]
Note: See note under 136.608.
136.613 [Formerly 139.170; 1977 c.746 §11; repealed
by 1995 c.657 §18]
136.614
Witness held in detention facility; payment. A witness held in a county jail, or other appropriate detention
facility, as the result of a material witness order must be paid $7.50 for each
day of confinement. The county shall pay the fee upon the release of the
witness from custody or, in the discretion of the court, at designated times or
intervals during the confinement. [1995 c.657 §17]
Note: See note under 136.608.
136.615 [Formerly 139.180; repealed by 1995 c.657 §18]
(Compelling
Witnesses)
136.617
Proceedings to compel witness who may be incriminated thereby to testify. In any criminal proceeding before a court of
record or in any proceeding before a grand jury, or in any proceeding before a
court of record under ORS 646.760, or in any proceeding for the imposition of
remedial or punitive sanction for contempt, if a witness refuses to testify or
produce evidence of any kind on the ground that the witness may be incriminated
thereby, the prosecuting attorney may move the court to order the witness to
testify or produce evidence. The court shall forthwith hold a summary hearing
at which the prosecuting attorney shall show reasonable cause to believe the
witness possesses knowledge relevant to the proceeding, or that no privilege
protects the evidence sought to be produced. The witness may show cause why the
witness should not be compelled to testify or produce evidence. The court shall
order the witness to testify regarding the subject matter under inquiry upon
such showing of reasonable cause or shall order the production of evidence upon
a finding that no privilege protects the evidence sought, unless the court
finds that to do so would be clearly contrary to the public interest. The court
shall hold the summary hearing outside the presence of the jury and the public
and may require the prosecuting attorney to disclose the purpose of the
testimony or evidence. The witness shall be entitled to be represented by
counsel at the summary hearing. [Formerly 139.190; 1975 c.255 §14; 1981 c.882 §1;
1991 c.724 §25a]
136.619
Immunity of witness compelled to testify. (1) A witness who, in compliance with a court order issued under ORS
33.085 or 136.617, testifies or produces evidence that the witness would have
been privileged to withhold but for the court order, may be prosecuted or
subjected to any penalty or forfeiture for any matter about which the witness
testified or produced evidence unless the prosecution, penalty or forfeiture is
prohibited by section 12, Article I of the Oregon Constitution. The testimony
of the witness or evidence produced or information derived from the testimony
or evidence may not be used against the witness in any criminal prosecution.
However, the witness may nevertheless be prosecuted or subjected to penalty for
any perjury, false swearing or contempt committed in answering, or failing to
answer, or in producing, or failing to produce, evidence in accordance with the
order. If a person refuses to testify after being ordered to testify as
provided in this section, the person shall be subject to penalty for contempt
of court for failure to comply with the order.
(2) Subsection (1) of this section shall
not prevent the use of post-judgment collection procedures, including but not
limited to wage withholding, income withholding, benefit withholding,
assignment, garnishment or execution, based on matters about which a defendant
testifies or produces evidence in compliance with a court order issued under
ORS 136.617 in any proceeding for the imposition of remedial or punitive
sanctions for contempt. [Formerly 139.200; 1981 c.882 §2; 1985 c.709 §1; 1991
c.724 §25b; 1997 c.313 §22]
136.620 [Amended by 1973 c.836 §242; renumbered
136.455]
(Uniform Act
to Secure Attendance of Witnesses From Without a State in Criminal Proceedings)
136.623
Definitions. (1) Witness,
as used in ORS 136.623 to 136.637, shall include a person whose testimony is
desired in any proceeding or investigation by a grand jury or in a criminal
action, prosecution or proceeding.
(2) The word state shall include any
territory of the
(3) The word summons shall include a
subpoena, order or other notice requiring the appearance of a witness. [Formerly
139.210]
136.625
Where witness material to proceeding in another state is in this state. (1) If a judge of a court of record in any
state which by its laws has made provision for commanding persons within that
state to attend and testify in this state certifies under the seal of such
court that there is a criminal prosecution pending in such court, or that a
grand jury investigation has commenced or is about to commence, that a person
being within this state is a material witness in such prosecution, or grand
jury investigation, and that the presence of the person will be required for a
specified number of days, upon presentation of such certificate to any judge of
a court of record in the county in which such person is, such judge shall fix a
time and place for a hearing, and shall make an order directing the witness to
appear at a time and place certain for the hearing.
(2) If at a hearing the judge determines
that the witness is material and necessary, that it will not cause undue
hardship to the witness to be compelled to attend and testify in the
prosecution or a grand jury investigation in the other state, and that the laws
of the state in which the prosecution is pending, or grand jury investigation
has commenced or is about to commence, (and of any other state through which
the witness may be required to pass by ordinary course of travel), will give to
the witness protection from arrest and the service of civil and criminal
process, the judge shall issue a summons, with a copy of the certificate
attached, directing the witness to attend and testify in the court where the
prosecution is pending, or where a grand jury investigation has commenced or is
about to commence at a time and place specified in the summons. In any such
hearing the certificate shall be prima facie evidence of all the facts stated
therein.
(3) If said certificate recommends that
the witness be taken into immediate custody and delivered to an officer of the
requesting state to assure the attendance of the witness in the requesting
state, such judge may, in lieu of notification of the hearing, direct that such
witness be forthwith brought before the judge for said hearing; and the judge
at the hearing being satisfied of the desirability of such custody and
delivery, for which determination the certificate shall be prima facie proof of
such desirability may, in lieu of issuing subpoena or summons, order that said
witness be forthwith taken into custody and delivered to an officer of the
requesting state only after the tender of payment of the mileage and per diem
herein provided for.
(4) If the witness, who is summoned as
above provided, after being paid or tendered by some properly authorized person
the sum of 10 cents a mile for each mile by the ordinary traveled route to and
from the court where the prosecution is pending and $5 for each day, that the
witness is required to travel and attend as a witness, fails without good cause
to attend and testify as directed in the summons, the witness shall be punished
in the manner provided for the punishment of any witness who disobeys a summons
issued from a court of record in this state. [Formerly 139.220]
136.627
Where witness material to proceeding in this state is in another state. (1) If a person in any state, which by its
laws has made provision for commanding persons within its borders to attend and
testify in criminal prosecutions, or grand jury investigations commenced or
about to commence, in this state, is a material witness in a prosecution
pending in a court of record in this state, or in a grand jury investigation
which has commenced or is about to commence, a judge of such court may issue a
certificate under the seal of the county stating these facts and specifying the
number of days the witness will be required. Said certificate may include a
recommendation that the witness be taken into immediate custody and delivered
to an officer of this state to assure the attendance of the witness in this
state. This certificate shall be presented to a judge of a court of record in
the county in which the witness is found.
(2) If the witness is summoned to attend
and testify in this state the witness shall be tendered the sum of 10 cents a
mile for each mile by the ordinary traveled route to and from the court where
the prosecution is pending and $5 for each day that the witness is required to
travel and attend as a witness. A witness who has appeared in accordance with
the provisions of the summons shall not be required to remain within this state
a longer period of time than the period mentioned in the certificate, unless
otherwise ordered by the court. If such witness, after coming into this state,
fails without good cause to attend and testify as directed in the summons, the
witness shall be punished in the manner provided for the punishment of any
witness who disobeys a subpoena issued from a court of record in this state. [Formerly
139.230]
136.630 [Repealed by 1973 c.836 §358]
136.633
Immunity of witness from arrest or service of process. (1) If a person comes into this state in
obedience to a summons directing the person to attend and testify in this state
the person shall not while in this state pursuant to such summons be subject to
arrest or the service of process, civil or criminal, in connection with matters
which arose before the entrance of the person into this state under the
summons.
(2) If a person passes through this state
while going to another state in obedience to a summons to attend and testify in
that state or while returning therefrom, the person shall not while so passing
through this state be subject to arrest or the service of process, civil or
criminal, in connection with matters which arose before the entrance of the
person into this state under the summons. [Formerly 139.240]
136.635
Construction of ORS 136.623 to 136.637. ORS 136.623 to 136.637 shall be so interpreted and construed as to
effectuate their general purpose to make uniform the law of the states which
enact the Uniform Act to Secure the Attendance of Witnesses from Without a
State in Criminal Proceedings. [Formerly 139.250]
136.637
Short title. ORS 136.623 to
136.637 may be cited as Uniform Act to Secure the Attendance of Witnesses from
Without a State in Criminal Proceedings. [Formerly 139.260]
136.640 [Repealed by 1973 c.836 §358]
(Competency)
136.643
Defendant as witness. In the
trial of or examination upon any indictment, complaint, information or other
proceeding before any court, magistrate, jury or other tribunal against a
person accused or charged with the commission of a crime, the person so charged
or accused shall, at the own request of the person, but not otherwise, be
deemed a competent witness, the credit to be given to the testimony of the
person being left solely to the jury, under the instructions of the court, or
to the discrimination of the magistrate, grand jury or other tribunal before
which such testimony is given. The waiver of the person of this right creates
no presumption against the person. The defendant or accused, when offering
testimony as a witness in the own behalf of the defendant, gives the
prosecution a right to cross-examination upon all facts to which the defendant
or accused has testified and which tend to the conviction or acquittal of the
defendant or accused. [Formerly 139.310]
136.645
Codefendant as witness. No
person named in an indictment, information or complaint as a codefendant shall
be deemed incompetent to testify as a witness at the trial of another defendant
solely because the person is so named. [Formerly 139.315]
136.650 [Amended by 1973 c.836 §243; renumbered
136.460]
136.655
Husband or wife as witness.
(1) Except as provided in subsection (2) of this section, in all criminal
actions in which the husband is the party accused, the wife is a competent
witness and when the wife is the party accused, the husband is a competent
witness; but neither husband nor wife in such cases shall be compelled or
allowed to testify in such cases, except as provided in ORS 40.255.
(2) There is no privilege under this
section, or under ORS 40.255 in all criminal actions in which one spouse is
charged with bigamy or with an offense or attempted offense against the person
or property of the other spouse or of a child of either, or with an offense
against the person or property of a third person committed in the course of
committing or attempting to commit an offense against the other spouse. [Formerly
139.320; 1979 c.721 §1; 1981 c.892 §89]
136.660 [Amended by 1973 c.836 §244; renumbered
136.465]
136.670 [Amended by 1973 c.836 §245; renumbered
136.470]
(Hypnotized
Witnesses)
136.675
Conditions for use of testimony of persons subjected to hypnosis. If either prosecution or defense in any
criminal proceeding in the State of Oregon intends to offer the testimony of
any person, including the defendant, who has been subjected to hypnosis,
mesmerism or any other form of the exertion of will power or the power of
suggestion which is intended to or results in a state of trance, sleep or
entire or partial unconsciousness relating to the subject matter of the
proposed testimony, performed by any person, it shall be a condition of the use
of such testimony that the entire procedure be recorded either on videotape or
any mechanical recording device. The unabridged videotape or mechanical
recording shall be made available to the other party or parties in accordance
with ORS 135.805 to 135.873. [1977 c.540 §1; 1983 c.740 §15]
136.680 [Amended by 1973 c.836 §246; renumbered
136.475]
136.685
Law enforcement personnel required to advise hypnosis subjects of consequences;
consent of subject required.
(1) No person employed or engaged in any capacity by or on behalf of any state
or local law enforcement agency shall use upon another person any form of
hypnotism, mesmerism or any other form of the exertion of will power or the
power of suggestion which is intended to or results in a state of trance, sleep
or entire or partial unconsciousness without first explaining to the intended
subject that:
(a) The intended subject is free to refuse
to be subject to the processes delineated in this section;
(b) There is a risk of psychological side
effects resulting from the process;
(c) If the intended subject agrees to be
subject to such processes, it is possible that the process will reveal emotions
or information of which the intended subject is not consciously aware and which
the intended subject may wish to keep private; and
(d) The intended subject may request that
the process be conducted by a licensed medical doctor or a licensed
psychologist, at no cost to the intended subject.
(2) In the event that the prospective
subject refuses to consent, none of the processes delineated in subsection (1)
of this section shall be used upon that person. [1977 c.540 §2]
136.690 [Renumbered 136.480]
136.695
Evidence obtained in violation of ORS 136.675 or 136.685 inadmissible. No evidence secured in violation of ORS
136.675 or 136.685 shall be admissible in any criminal proceeding in this
state. [1977 c.540 §3]
136.700 [Amended by 1973 c.836 §247; renumbered
136.485]
136.710 [Amended by 1973 c.836 §248; renumbered
136.490]
136.720 [Amended by 1973 c.836 §249; renumbered
136.495]
136.730 [Repealed by 1971 c.743 §432]
136.750 [1993 c.379 §1; renumbered 153.805 in 1995]
136.753 [1993 c.379 §2; renumbered 153.808 in 1995]
136.756 [1993 c.379 §3; renumbered 153.810 in 1995]
PROCEDURE TO
RELY ON ENHANCEMENT FACT AT SENTENCING
136.760
Definitions for ORS 136.765 to 136.785.
As used in
ORS 136.765 to 136.785:
(1) Accusatory instrument has the
meaning given that term in ORS 131.005.
(2) Enhancement fact means a fact that
is constitutionally required to be found by a jury in order to increase the
sentence that may be imposed upon conviction of a crime. [2005 c.463 §1]
Note: 136.760 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 136 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
136.765
Notice to defendant. In
order to rely on an enhancement fact to increase the sentence that may be
imposed in a criminal proceeding, the state shall notify the defendant of its
intention to rely on the enhancement fact by:
(1) Pleading the enhancement fact in the
accusatory instrument; or
(2) Within a reasonable time after filing
the accusatory instrument, providing written notice to the defendant of the
enhancement fact and the states intention to rely on it. [2005 c.463 §2]
Note: 136.765 to 136.785 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
136 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
136.770
Enhancement fact related to offense. (1) When an enhancement fact relates to an offense charged in the
accusatory instrument, the court shall submit the enhancement fact to the jury
during the trial phase of the criminal proceeding unless the defendant:
(a) Defers trial of the enhancement fact
under subsection (4) of this section; or
(b) Makes a written waiver of the right to
a jury trial on the enhancement fact and:
(A) Admits to the enhancement fact; or
(B) Elects to have the enhancement fact
tried to the court.
(2) If the defendant makes the election
under subsection (1)(b)(B) of this section and is found guilty during the trial
phase of the criminal proceeding, the enhancement fact shall be tried during
the sentencing phase of the proceeding.
(3) If there is more than one enhancement
fact relating to the offense and the defendant does not admit to all of them,
the defendant shall elect to try to the jury or to the court all enhancement
facts relating to the offense to which the defendant does not admit.
(4) If the court finds that trying an
enhancement fact relating to the offense during the trial phase of the criminal
proceeding would unfairly prejudice the jurys verdict on an underlying
offense, the court shall allow the defendant to defer trial of the enhancement
fact to the sentencing phase of the proceeding without waiving the right to a
jury trial on the enhancement fact.
(5) If two or more defendants are being
tried in the same criminal proceeding, each defendant shall make the elections
required by this section. [2005 c.463 §3]
Note: See note under 136.765.
136.773
Enhancement fact related to defendant. (1) When an enhancement fact relates to the defendant, the court shall
submit the enhancement fact to the jury during the sentencing phase of the
criminal proceeding if the defendant is found guilty of an offense to which the
enhancement fact applies unless the defendant makes a written waiver of the
right to a jury trial on the enhancement fact and:
(a) Admits to the enhancement fact; or
(b) Elects to have the enhancement fact
tried to the court.
(2) If the defendant makes the election
under subsection (1)(b) of this section and is found guilty during the trial
phase of the criminal proceeding, the enhancement fact shall be tried during
the sentencing phase of the proceeding.
(3) If there is more than one enhancement
fact relating to the defendant and the defendant does not admit to all of them,
the defendant shall elect to try to the jury or to the court all enhancement facts
relating to the defendant to which the defendant does not admit.
(4) If two or more defendants are being
tried in the same criminal proceeding, each defendant shall make the elections
required by this section.
(5) Unless the defendant waives the right
to a jury trial on enhancement facts related to the defendant, the sentencing
phase shall be conducted in the trial court before the jury following a finding
of guilt by the jury. If for any reason a juror is unable to perform the
function of a juror, the court shall dismiss the juror from the sentencing
phase and draw the name of one of the alternate jurors. The alternate juror
then becomes a member of the jury for the sentencing phase notwithstanding the
fact that the alternate juror did not deliberate on the issue of guilt. The
court may allow the substitution of an alternate juror only if the jury has not
begun to deliberate on the issue of an enhancement fact. [2005 c.463 §4]
Note: See note under 136.765.
136.776
Effect of waiver of right to jury trial. When a defendant waives the right to a jury trial on the issue of
guilt or innocence, the waiver constitutes a written waiver of the right to a
jury trial on all enhancement facts whether related to the offense or the
defendant. [2005 c.463 §5]
Note: See note under 136.765.
136.780
Evidence. All evidence
received during the trial phase of a criminal proceeding may be considered by
the jury or, if the defendant waives the right to a jury trial, by the court
during the sentencing phase of the proceeding. [2005 c.463 §6]
Note: See note under 136.765.
136.785
Burden of proof; effect of finding. (1) When an enhancement fact is tried to a jury, any question relating
to the enhancement fact shall be submitted to the jury.
(2) The state has the burden of proving an
enhancement fact beyond a reasonable doubt.
(3) An enhancement fact that is tried to a
jury is not proven unless:
(a) The number of jurors who find that the
state has met its burden of proof with regard to the enhancement fact is equal to
or greater than the number of jurors that was required to find the defendant
guilty of the crime; and
(b) Of the jurors who find that the state
has met its burden of proof, at least the minimum number of jurors required by
this subsection to prove an enhancement fact are also jurors who found the
defendant guilty of the crime or alternate jurors as provided by ORS 136.773
(5).
(4) An enhancement fact that is tried to
the court is not proven unless the court finds that the state has met its
burden of proof with regard to the enhancement fact.
(5) A finding relating to an enhancement
fact made by a jury during the trial or sentencing phase of a criminal
proceeding may not be reexamined by the court. Notwithstanding the findings
made by a jury relating to an enhancement fact, the court is not required to
impose an enhanced sentence. [2005 c.463 §7; 2007 c.16 §3]
Note: See note under 136.765.
136.790
Notice to defendant upon remand. In order to rely on an enhancement fact, as defined in ORS 136.760, to
increase the sentence that may be imposed upon remand of a case described in
section 21 (3), chapter 463, Oregon Laws 2005, the state, within a reasonable
time before resentencing, shall notify the defendant of its intention to rely
on the enhancement fact by providing written notice to the defendant of the
enhancement fact and the states intention to rely on it. [2005 c.463 §22]
Note: 136.790 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 136 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
136.792
Jury upon remand. (1) For
the purpose of imposing a new sentence in a case that has been remanded to a
trial court that will result in resentencing for which a new sentence has not
been imposed prior to July 7, 2005, the court may impanel a new jury to
determine the enhancement facts as defined in ORS 136.760. Laws relating to
impaneling a jury for a criminal trial apply to impaneling a jury under this
section.
(2) ORS 136.785 (3) does not apply to a
case in which the court has impaneled a new jury under this section. In a case
with a jury impaneled under this section, an enhancement fact is not proven
unless the number of jurors who find that the state has met its burden of proof
with regard to the enhancement fact is equal to or greater than the number of
jurors that was required to find the defendant guilty of the crime. [2005 c.463
§23]
Note: 136.792 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 136 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
136.810 [Amended by 1973 c.836 §250; renumbered
136.500]
136.820 [Renumbered 136.505]
136.830 [Amended by 1973 c.836 §251; renumbered
136.515]
136.840 [Amended by 1973 c.836 §252; renumbered
136.525]
136.850 [Repealed by 1971 c.565 §17 (136.851 enacted
in lieu of 136.850)]
136.851 [1971 c.565 §18 (136.851 enacted in lieu of
136.850); 1973 c.836 §253; renumbered 136.535]
_______________
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