Oregon Revised Statutes
The defendant and the state in all criminal prosecutions have the right to public trial by an impartial jury. 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.
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 la…
An issue of fact arises upon a plea of not guilty.
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.
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. 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 defendant…
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.
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 victim’s interest in a joint trial. In ruling on a motion by a defendant for severance, the court may order the p…
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.
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…
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.
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.
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.
If the defendant appears at the time set for trial and the prosecuting attorney is not ready and does not show sufficient cause for postponing the trial, the court shall dismiss the accusatory instrument unless the court determines that dismissal is not in the public interest. If the court dismisses the accusatory instrument under subsection (1) of this sec…
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.
SELECTION OF JURY
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, t…
A challenge for implied bias shall be allowed for any of the following causes and for no other: 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. Standing in the relation of guardian and ward, attorney and client, physician and …
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…
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.
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 th…
In the trial of a person charged with a crime, the court may in its discretion direct the calling of additional jurors, to be known as “alternate jurors.” The court may call: One to six additional jurors if the person is charged with a felony; and One to three additional jurors if the person is charged with a misdemeanor. Jurors called under paragraph (a)…
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 …
If, before the final submission of the case, any juror dies or is unable to perform the duty because of illness or other sufficient cause, the court shall discharge the juror from the case. The court shall draw the name of an alternate juror, who shall then become a member of the jury, replacing the discharged juror as though the alternate juror had been sel…
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.
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 def…
ORS 136.290 does not apply to persons charged with crimes that 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. If the defendant is extradited from another jurisdiction, the 60-day period shall not commen…
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. CONDUCT OF TRIAL
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 decla…
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.
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. 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 leg…
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. ORCP 59 H applies t…
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 suc…
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 acc…
EVIDENCE
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.
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; or As provided in ORS 131.045.
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. Except as provided in ORS 136.427, a confession alone is not sufficient to warrant the conviction of the defendant without some other proof t…
A confession alone is sufficient to warrant the conviction of the defendant without some other proof that the crime has been committed if: The state files notice in accordance with subsection (3) of this section; The defendant is charged with a crime listed in ORS 163A.005; The victim of the crime is a vulnerable person; The victim is incompetent to test…
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.
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: The United States Constitution or the Oregon Constitution; The rules of evidence governing privileges and the admission of hearsay; or The right…
Except as provided in ORS 163.111 and 813.326, if an accusatory instrument or the written notice described in ORS 136.765 (2) alleges that the defendant has previously been convicted of an offense, the state has the burden of proving the previous conviction unless the defendant stipulates to that fact. The stipulation must: Be in writing; Admit without qua…
Except as provided in ORS 813.328, if an accusatory instrument or the written notice described in ORS 136.765 (2) alleges that the defendant has previously been convicted of an offense, the defendant may challenge the validity of the previous conviction by filing a notice of the defendant’s intent to do so. The notice must: Identify the previous conviction …
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.
If a person contacts an emergency communications system or a law enforcement agency to report the commission of a person felony, any statements or other evidence relating to the crime of prostitution under ORS 167.007 obtained as a result of the person making the report may not be used in the prosecution of the person for prostitution or attempted prostituti…
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. As used in this section, an “accomplice” means a witnes…
In any criminal action the defendant may, after close of the state’s 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.
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. Note: ORCP 55 was repealed and replaced b…
A jury in a criminal action may render a verdict of guilty only by unanimous agreement. A jury in a criminal action may render a verdict of not guilty only by a concurrence of at least 10 of 12 jurors.
A general verdict upon a plea of not guilty is either “guilty,” of an offense charged in the accusatory instrument, or “not guilty.”
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. The jury shall first consider the charged offense. Only if the jury finds the defendant no…
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.
Upon an accusatory instrument against several defendants, any one or more may be convicted or acquitted.
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.
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.
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.
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 d…
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 agreemen…
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 ma…
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.
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 d…
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 judgm…
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. The provisions of ORCP 64 F governing motions for a new trial apply to and regulate motions in arrest of judgment in criminal actions.
WITNESSES (Generally)
The process by which the attendance of a witness before a court or magistrate is required is a subpoena.
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.
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.
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.
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 serv…
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…
Subpoenas authorized by ORS 136.557 to 136.567 shall be substantially in the following form: By a magistrate: ______________________________________________________________________________ IN THE NAME OF THE STATE OF OREGON (or CITY OF ______) To A______ B______: You are hereby commanded to appear before C. D., (adding the name of office and place of …
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).” Upon the motion of the state or the defendant, the court may direct that the books, papers or doc…
Notwithstanding ORS 136.557, 136.563, 136.565 or 136.567 and subject to ORS 136.580 (2), criminal process authorizing or commanding the seizure or production of papers, documents, records or other things may be issued to a recipient, regardless of whether the recipient or the papers, documents, records or things are located within this state, if: The crimin…
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.
Except as provided in ORS 136.447 and 136.583 and subsection (2) of this section, a subpoena is served by delivering a copy to the witness personally. If the witness is under 14 years of age, the subpoena may be served by delivering a copy to the witness or to the witness’s parent, guardian or guardian ad litem. Proof of the service is made in the same manne…
The provisions of ORS 44.150 and ORCP 39 B and 55 A(6)(d) and 55 B(4) apply in criminal actions, examinations and proceedings.
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 o…
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 wi…
(Material Witness Order)
The district attorney or the defendant may apply to the court for a material witness order when: An indictment has been filed, and is pending, against the defendant in a circuit court; A grand jury proceeding has been commenced against the defendant; or A complainant’s information or a district attorney’s information alleging that the defendant has commit…
If, upon receipt of an application under ORS 136.608, the court determines that the application is well founded, the court shall: Enter an order directing the prospective witness to appear before the court at a designated time; or Issue a warrant of arrest directing the sheriff to take the person into custody and bring the person before the court, if the a…
At the hearing to determine whether a material witness order should be entered: The applicant has the burden of proving by a preponderance of the evidence all facts essential to support the order; The prospective witness may testify and may call witnesses; All testimony is under oath; and The Oregon Evidence Code shall apply in any material witness proce…
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. Note: See note under 136.608…
As used in this section, “material witness order” has the meaning given that term in ORS 136.608. At any time after the court enters a material witness order, the court may order, or the district attorney or the defendant may file a petition to conduct, a deposition to perpetuate the testimony of the material witness. The petition must be in writing and sw…
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…
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…
(Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings)
“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. The word “state” shall include any territory of the United States and District of Columbia. The word “summons” shall include a subpoena, order or other notice …
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 t…
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 comme…
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. I…
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.
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.
(Competency)
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 giv…
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.
Except as provided in subsection (2) of this section, in all criminal actions in which a spouse in a marriage is the party accused, the other spouse is a competent witness, but neither spouse shall be compelled or allowed to testify in a criminal action, except as provided in ORS 40.255. There is no privilege under this section, or under ORS 40.255 in all c…
(Hypnotized Witnesses)
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 unco…
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 expl…
No evidence secured in violation of ORS 136.675 or 136.685 shall be admissible in any criminal proceeding in this state.
PROCEDURE TO RELY ON ENHANCEMENT FACT AT SENTENCING
As used in ORS 136.765 to 136.785: “Accusatory instrument” has the meaning given that term in ORS 131.005. “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. Note: 136.760 was enacted into law by the Legislative Assembly but was not added…
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: Pleading the enhancement fact in the accusatory instrument; or Providing written notice to the defendant of the enhancement fact, and the state’s intention t…
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: Defers trial of the enhancement fact under subsection (4) of this section; or Makes a written waiver of the right to a jury trial on the enhancem…
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: Admits to …
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. Note: See note under 136.765.
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. Note: See note under 136.765.
When an enhancement fact is tried to a jury, any question relating to the enhancement fact shall be submitted to the jury. The state has the burden of proving an enhancement fact beyond a reasonable doubt. An enhancement fact that is tried to a jury is not proven unless: The number of jurors who find that the state has met its burden of proof with regard …
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 t…
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 impan…
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