USA Statutes : oregon
Title : TITLE 03 REMEDIES AND SPECIAL ACTIONS AND PROCEEDINGS
Chapter : Chapter 45 Testimony Generally
The testimony of a witness is taken by
six modes:
(1) Affidavit.
(2) Deposition.
(3) Oral examination.
(4) Telephone examination under ORS 45.400.
(5) Examination before a grand jury by means of simultaneous
television transmission under ORS 132.320.
(6) Declaration under penalty of perjury, as described in ORCP 1 E.
[Amended by 1993 c.425 §2; 1995 c.126 §3; 2003 c.194 §2] An affidavit is a written declaration
under oath, made without notice to the adverse party. An oral examination is an
examination in the presence of the jury or tribunal which is to decide
the fact, or act upon it, the testimony being heard by the jury or
tribunal from the mouth of the witness.AFFIDAVITS AND DECLARATIONS IN SUPPORT OF PROVISIONAL REMEDIES
Whenever a provisional remedy has been allowed upon affidavit or
declaration under penalty of perjury as described in ORCP 1 E, the party
against whom it is allowed may serve upon the party by whom it was
obtained a notice, requiring the affiant or declarant to be produced for
cross-examination before a named officer authorized to administer oaths.
Thereupon the party to whom the remedy was allowed shall lose the benefit
of the affidavit or declaration and all proceedings founded thereon,
unless within eight days, or such other time as the court or judge may
direct, upon a previous notice to the adversary of at least three days,
the party produces the affiant or declarant for examination before the
officer mentioned in the notice, or some other of like authority,
provided for in the order of the court or judge. Upon production, the
affiant or declarant may be examined by either party, but a party is not
obliged to make this production of an affiant or a declarant except
within the county where the provisional remedy was allowed. [Amended by
2003 c.194 §3]DEPOSITIONS(Taking of Deposition) As used in ORS
45.135, 45.138 and 45.142, “deposition” means the taking of testimony for
discovery, the taking of testimony for perpetuation of the testimony and
the taking of testimony in arbitration proceedings. [1999 c.942 §5] (1) A
deposition in a civil action may not be stenographically reported by:
(a) A party in the action;
(b) A person with a financial interest in the outcome of the action;
(c) An attorney for a party in the action;
(d) An attorney for a person with a financial interest in the
outcome of the action;
(e) An employee of a party in the action;
(f) An employee of an attorney for a party in the action;
(g) An employee of a person with a financial interest in the
outcome of the action;
(h) An employee of an attorney for a person with a financial
interest in the outcome of the action; or
(i) A person related, by affinity or consanguinity within the third
degree, to a party in the action or to a person with a financial interest
in the outcome of the action.
(2) Any deposition recorded or reported by a person in violation of
this section may not be introduced in evidence or used for any other
purpose in a civil action. [1999 c.942 §1] (1) A
person recording or reporting a deposition is personally responsible for
the accurate and complete recording or reporting of the deposition. No
person who employs or otherwise engages a person to record or report a
deposition may modify or attempt to modify the record or report of the
deposition, except to the extent allowed for the correction of errors in
the record or report.
(2) Any person employed or otherwise engaged to record or report a
deposition must provide equal services, and charge equal fee rates, to
all parties and attorneys in the proceeding. A person employed or
otherwise engaged to record or report a deposition must distribute copies
of the record or report at the same time to all parties and attorneys who
are entitled to receive a copy. In addition, a person employed or
otherwise engaged to record or report a deposition must:
(a) Disclose the fee rates of the person for services, transcripts
and copies to the attorneys identified in the proceeding and to any party
who is not represented by an attorney and who is identified in the
proceeding; or
(b) Provide a complete, individual accounting of all appearance
fees, transcript fees and any other fees charged for services rendered in
the proceeding. [1999 c.942 §2](1) Before recording or
reporting a deposition, the person recording or reporting the deposition
must disclose if the person has a contract to provide reporting services
for depositions on a full-time or part-time basis for any of the
following persons:
(a) A party in the action;
(b) A person with a financial interest in the outcome of the action;
(c) An attorney for a party in the action; or
(d) An attorney for a person with a financial interest in the
outcome of the action.
(2) If the person recording or reporting a deposition has a
contract to provide reporting services for depositions on a full-time or
part-time basis for any of the persons specified in subsection (1) of
this section, any party to the action may object to the person employed
for the purpose of recording or reporting the deposition. Upon objection,
the parties shall attempt to agree upon a different person who shall
record or report the deposition. If the parties cannot reach agreement,
any of the parties may move the court to appoint an independent person
who shall record or report the deposition.
(3) A party that objects to a person employed for the purpose of
recording or reporting a deposition in the manner provided by this
section is not subject to any penalty or sanction for making the
objection and is not required to pay any fee of the person objected to.
(4) This section does not apply to contracts for reporting services
for a single deposition, case or incident.
(5) This section does not apply to a person who records or reports
depositions for a public body, as defined in ORS 30.260, or for a federal
agency or any instrumentality of the federal government. [1999 c.942 §4](Use of Deposition) (1) At the trial or upon the hearing of a
motion or an interlocutory proceeding, any part or all of a deposition,
so far as admissible under the rules of evidence, may be used against any
party who was present or represented at the taking of the deposition or
who had due notice thereof, in accordance with any of the following
provisions of this subsection:
(a) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a witness.
(b) The deposition of a party, or of anyone who at the time of
taking the deposition was an officer, director or managing agent of a
public or private corporation, partnership or association which is a
party, may be used by an adverse party for any purpose.
(2) At the trial or upon the hearing of a motion or an
interlocutory proceeding, any part or all of a deposition, so far as
admissible under the rules of evidence, may be used against any party for
any purpose, if the party was present or represented at the taking of the
deposition or had due notice thereof, and if the court finds that:
(a) The witness is dead; or
(b) The witness is unable to attend or testify because of age,
sickness, infirmity or imprisonment; or
(c) The party offering the deposition has been unable to procure
the attendance of the witness by subpoena; or
(d) Upon application and notice, such exceptional circumstances
exist as to make it desirable, in the interest of justice and with due
regard to the importance of presenting the testimony of witnesses orally
in open court, to allow the deposition to be used; or
(e) The deposition was taken in the same proceeding pursuant to
ORCP 39 I.
(3) For the purpose of subsection (2)(c) of this section, the
failure of a party to serve a witness at the time of deposition with a
subpoena that requires the appearance of the witness at trial or other
hearing does not constitute sufficient grounds to deny the use of the
deposition of that witness at the trial or other hearing without further
showing of a lack of diligence on the part of the party offering the
deposition. [1955 c.611 §§8,9; 1979 c.284 §83; 1987 c.275 §1; 1989 c.980
§4; 2001 c.234 §1] If only
part of a deposition is offered in evidence by a party, an adverse party
may require the party to introduce all of it which is relevant to the
part introduced and any party may introduce any other parts, so far as
admissible under the rules of evidence. When any portion of a deposition
is excluded from a case, so much of the adverse examination as relates
thereto is excluded also. [1955 c.611 §10] Substitution
of parties shall not affect the right to use the depositions previously
taken; and when an action, suit or proceeding has been dismissed and
another action, suit or proceeding involving the same subject matter is
afterward brought between the same parties or their representatives or
successors in interest, any deposition lawfully taken and duly filed in
the former action, suit or proceeding may be used in the latter as if
originally taken therefor, and is then to be deemed the evidence of the
party reading it. [1955 c.611 §11]INTERPRETERS
(1) “Adjudicatory proceeding” means:
(a) Any contested case hearing conducted under ORS chapter 183; or
(b) Any hearing conducted by an agency in which the individual
legal rights, duties or privileges of specific parties are determined if
that determination is subject to judicial review by a circuit court or by
the Court of Appeals.
(2) “Agency” has that meaning given in ORS 183.310. [1999 c.1041 §3] (1) It is declared to be the policy of this state to
secure the constitutional rights and other rights of persons who are
unable to readily understand or communicate in the English language
because of a non-English-speaking cultural background or a disability,
and who as a result cannot be fully protected in administrative and court
proceedings unless qualified interpreters are available to provide
assistance.
(2) It is the intent of the Legislative Assembly in passing ORS
45.272 to 45.297 to provide a procedure for the qualification and use of
court interpreters. Nothing in ORS 45.272 to 45.297 abridges the rights
or obligations of parties under other laws or court rules. [1993 c.687
§1; 1999 c.1041 §1](1) The court shall appoint a
qualified interpreter in a civil or criminal proceeding, and a hearing
officer or the designee of a hearing officer shall appoint a qualified
interpreter in an adjudicatory proceeding, whenever it is necessary:
(a) To interpret the proceedings to a non-English-speaking party;
(b) To interpret the testimony of a non-English-speaking party or
witness; or
(c) To assist the court, agency or hearing officer in performing
the duties and responsibilities of the court, agency or hearing officer.
(2) No fee shall be charged to any person for the appointment of an
interpreter to interpret testimony of a non-English-speaking party or
witness, or to assist the court, agency or hearing officer in performing
the duties and responsibilities of the court, agency or hearing officer.
No fee shall be charged to a non-English-speaking party who is unable to
pay for the appointment of an interpreter to interpret the proceedings to
the non-English-speaking party. No fee shall be charged to any person for
the appointment of an interpreter if appointment is made to determine
whether the person is unable to pay or non-English-speaking for the
purposes of this section.
(3) A non-English-speaking party shall be considered unable to pay
for an interpreter for the purposes of this section if:
(a) The party makes a verified statement and provides other
information in writing under oath showing financial inability to pay for
a qualified interpreter, and provides any other information required by
the court or agency concerning the inability to pay for such an
interpreter; and
(b) It appears to the court or agency that the party is in fact
unable to pay for a qualified interpreter.
(4) Fair compensation for the services of an interpreter appointed
under this section shall be paid:
(a) By the county, subject to the approval of the terms of the
contract by the governing body of the county, in a proceeding in a county
or justice court.
(b) By the city, subject to the approval of the terms of the
contract by the governing body of the city, in a proceeding in a
municipal court.
(c) By the state in a proceeding in a circuit court. Amounts
payable by the state shall be from funds available to the court other
than the Public Defense Services Account established by ORS 151.225,
except that fees of an interpreter necessary for the purpose of
communication between appointed counsel and a client or witness in a
criminal case shall be payable from that account.
(d) By the agency in an adjudicatory proceeding.
(5) If a party or witness is dissatisfied with the interpreter
appointed by the court, the hearing officer or the designee of the
hearing officer, the party or witness may request the appointment of a
different certified interpreter. A request under this subsection must be
made in a manner consistent with the policies and notice requirements of
the court or agency relating to the appointment and scheduling of
interpreters. If the substitution of another interpreter will delay the
proceeding, the person making the request must show good cause for the
substitution. Any party may object to use of any interpreter for good
cause. Unless the court, hearing officer or the designee of the hearing
officer has appointed a different interpreter for cause, the party using
any interpreter other than the interpreter originally appointed by the
court, hearing officer or the designee of the hearing officer shall bear
any additional costs beyond the amount required to pay the original
interpreter.
(6) A judge or hearing officer, on the judge’s or hearing officer’s
own motion, may substitute a different interpreter for the interpreter
initially appointed in a proceeding. A judge or hearing officer may make
a substitution under this subsection at any time and for any reason.
(7) A court may allow as costs reasonable expenses incurred by a
party in employing the services of an interpreter in civil proceedings in
the manner provided by ORCP 68.
(8) A court, a hearing officer or the designee of a hearing officer
shall require any person serving as an interpreter for the court or
agency to state the person’s name on the record and whether the person is
certified under ORS 45.291. If the person is certified under ORS 45.291,
the interpreter need not make the oath or affirmation required by ORS
40.325 or submit the interpreter’s qualifications on the record. If the
person is not certified under ORS 45.291, the interpreter must make the
oath or affirmation required by ORS 40.325 and submit the interpreter’s
qualifications on the record.
(9) For the purposes of this section:
(a) “Hearing officer” includes an administrative law judge.
(b) “Non-English-speaking person” means a person who, by reason of
place of birth or culture, speaks a language other than English and does
not speak English with adequate ability to communicate effectively in the
proceedings.
(c) “Qualified interpreter” means a person who is readily able to
communicate with the non-English-speaking person and who can orally
transfer the meaning of statements to and from English and the language
spoken by the non-English-speaking person. A qualified interpreter must
be able to interpret in a manner that conserves the meaning, tone, level,
style and register of the original statement, without additions or
omissions. “Qualified interpreter” does not include any person who is
unable to interpret the dialect, slang or specialized vocabulary used by
the party or witness. [1991 c.750 §2; 1993 c.687 §8; 1995 c.273 §16; 1997
c.872 §18; 1999 c.1041 §4; 2001 c.242 §1; 2001 c.962 §§65,66; 2003 c.75
§§77,78; 2005 c.385 §2](1) In any civil action,
adjudicatory proceeding or criminal proceeding, including a court-ordered
deposition if no other person is responsible for providing an
interpreter, in which a disabled person is a party or witness, the court,
hearing officer or the designee of the hearing officer shall appoint a
qualified interpreter and make available appropriate assistive
communication devices whenever it is necessary to interpret the
proceedings to the disabled person, or to interpret the testimony of the
disabled person.
(2) No fee shall be charged to the disabled person for the
appointment of an interpreter or use of an assistive communication device
under this section. No fee shall be charged to any person for the
appointment of an interpreter or the use of an assistive communication
device if appointment or use is made to determine whether the person is
disabled for the purposes of this section.
(3) Fair compensation for the services of an interpreter or the
cost of an assistive communication device under this section shall be
paid:
(a) By the county, subject to the approval of the terms of the
contract by the governing body of the county, in a proceeding in a county
or justice court.
(b) By the city, subject to the approval of the terms of the
contract by the governing body of the city, in a proceeding in a
municipal court.
(c) By the state in a proceeding in a circuit court. Amounts
payable by the state shall be from funds available to the court other
than the Public Defense Services Account established by ORS 151.225,
except that fees of an interpreter necessary for the purpose of
communication between appointed counsel and a client or witness in a
criminal case shall be payable from that account.
(d) By the agency in an adjudicatory proceeding.
(4) For the purposes of this section:
(a) “Assistive communication device” means any equipment designed
to facilitate communication by a disabled person.
(b) “Disabled person” means a person who cannot readily understand
the proceedings because of deafness or a physical hearing impairment, or
cannot communicate in the proceedings because of a physical speaking
impairment.
(c) “Hearing officer” includes an administrative law judge.
(d) “Qualified interpreter” means a person who is readily able to
communicate with the disabled person, interpret the proceedings and
accurately repeat and interpret the statements of the disabled person to
the court. [1991 c.750 §1; 1993 c.687 §6; 1999 c.1041 §5; 2001 c.962
§§67,68; 2003 c.75 §§79,80](1) Except as
provided by this section, whenever a court is required to appoint an
interpreter for any person in a proceeding before the court, or whenever
a hearing officer is required to appoint an interpreter in an
adjudicatory proceeding, the court, hearing officer or the designee of
the hearing officer shall appoint a qualified interpreter who has been
certified under ORS 45.291. If no certified interpreter is available,
able or willing to serve, the court, hearing officer or the designee of
the hearing officer shall appoint a qualified interpreter. Upon request
of a party or witness, the court, hearing officer or designee of the
hearing officer, in the discretion of the court, hearing officer or the
designee of the hearing officer, may appoint a qualified interpreter to
act as an interpreter in lieu of a certified interpreter in any case or
adjudicatory proceeding.
(2) The requirements of this section apply to appointments of
interpreters for disabled persons, as defined in ORS 45.285, and for
non-English-speaking persons, as defined in ORS 45.275.
(3) The court, hearing officer or the designee of the hearing
officer may not appoint any person under ORS 45.272 to 45.297 or 132.090
if:
(a) The person has a conflict of interest with any of the parties
or witnesses in the proceeding;
(b) The person is unable to understand the judge, hearing officer,
party or witness, or cannot be understood by the judge, hearing officer,
party or witness; or
(c) The person is unable to work cooperatively with the judge of
the court, the hearing officer, the person in need of an interpreter or
the counsel for that person.
(4) The Supreme Court shall adopt a code of professional
responsibility for interpreters. The code is binding on all interpreters
who provide interpreter services in the courts or in adjudicatory
proceedings before agencies.
(5) For the purposes of this section:
(a) “Hearing officer” includes an administrative law judge.
(b) “Qualified interpreter” means a person who meets the
requirements of ORS 45.285 for a disabled person, or a person who meets
the requirements of ORS 45.275 for a non-English-speaking person. [1993
c.687 §2; 1999 c.1041 §6; 2001 c.242 §2; 2001 c.243 §2; 2003 c.75 §81](1) Subject to the availability of funding, the
State Court Administrator shall establish a program for the certification
of court interpreters. The program shall be established by rules adopted
pursuant to ORS 1.002 and shall include, but not be limited to,
provisions for:
(a) Prescribing the form and content of applications for
certification;
(b) Prescribing and collecting reasonable fees for the application,
examination, certification and renewal of certification for court
interpreters;
(c) Establishing categories of certificates based on the nature of
the interpreter services to be provided, including categories for
interpreters for disabled persons, as defined in ORS 45.285, and for
interpreters for non-English-speaking persons, as defined in ORS 45.275;
(d) Establishing minimum competency requirements for court
interpreters in the various categories of certification;
(e) Establishing teaching programs designed to educate court
interpreters in ethical, substantive and procedural legal issues;
(f) Prescribing the form of and administering examinations for the
purpose of testing court interpreters for competency and ethics;
(g) Establishing grounds for renewal, suspension or cancellation of
certificates;
(h) Establishing a process for receiving comments and input into
the policy and procedures of the certification program;
(i) Establishing a process for receiving comments and input on
compliance with ORS 45.272 to 45.297;
(j) Establishing a process for receiving comments and input on
compliance with the code of professional responsibility adopted under ORS
45.288; and
(k) Establishing a process by which an adversely affected
interpreter may seek review of any decision made by the State Court
Administrator on renewal, suspension or cancellation of a certificate.
(2) An interpreter may be certified in Oregon by the State Court
Administrator upon satisfactory proof that the interpreter is certified
in good standing by the federal courts or by a state having a
certification program that is equivalent to the program established under
this section. [1993 c.687 §3; 2001 c.242 §3] (1)
Except as provided in this section, a person may not assume or use the
title or designation “certified court interpreter” or “court certified
interpreter,” or any other title, designation, words, letters,
abbreviation, sign or device tending to indicate that the person is
certified for the purposes of providing interpreter services under ORS
45.272 to 45.297.
(2) Subsection (1) of this section does not apply to any person who:
(a) Is certified under the program established under ORS 45.291;
(b) Is certified as an interpreter by the federal courts; or
(c) Is certified as an interpreter in another state that has a
certification program that is equivalent to the program established under
ORS 45.291. [1999 c.1041 §8](1) The Court Interpreter and Shorthand Reporter
Certification Account is established as an account in the General Fund of
the State Treasury. All moneys received by the State Court Administrator
from fees imposed under ORS 8.445 and 45.291 shall be paid into the State
Treasury and credited to the account. All moneys in the account are
appropriated continuously to the State Court Administrator to carry out
the provisions of ORS 8.415 to 8.455 and 45.291.
(2) The State Court Administrator may apply for and receive funds
or grants from federal, state and private sources to be credited to the
Court Interpreter and Shorthand Reporter Certification Account and used
for the purposes specified in ORS 8.415 to 8.455 and 45.291. [1993 c.687
§4; 1995 c.386 §7] The State Court
Administrator may enter into service contracts and may establish uniform
policies and procedures, subject to the approval of the Chief Justice of
the Supreme Court, governing the appointment, provision and payment of
interpreters in proceedings before the circuit courts of the state,
including the provision of interpreter services utilizing
telecommunications methods. [1993 c.687 §5]TELEPHONE TESTIMONY(1) Upon motion of any party and for good cause shown, the court
may order that the testimony of the party or any witness for the moving
party be taken by telephone or by other two-way electronic communication
device in any civil proceeding or any proceeding under ORS chapter 419B.
(2) A party filing a motion under this section must give written
notice to all other parties to the proceeding at least 30 days before the
trial or hearing at which the telephone testimony will be offered. The
court may allow written notice less than 30 days before the trial or
hearing for good cause shown.
(3) Except as provided under subsection (4) of this section, the
court shall allow telephone testimony under this section upon a showing
of good cause. The court may not allow the use of telephone testimony in
any case if:
(a) The ability to evaluate the credibility and demeanor of a
witness or party in person is critical to the outcome of the proceeding;
(b) The issue or issues the witness or party will testify about are
so determinative of the outcome that face-to-face cross-examination is
necessary;
(c) A perpetuation deposition under ORCP 39 I is a more practical
means of presenting the testimony;
(d) The exhibits or documents the witness or party will testify
about are too voluminous to make telephone testimony practical;
(e) Facilities that would permit the taking of telephone testimony
are not available;
(f) The failure of the witness or party to appear personally will
result in substantial prejudice to a party to the proceeding; or
(g) Other circumstances exist that require the personal appearance
of a witness or party.
(4) The court may not allow use of telephone testimony in a jury
trial unless good cause is shown and there is a compelling need for the
use of telephone testimony.
(5) The court may not prohibit the use of telephone testimony
solely by reason of the provisions of subsection (3)(e) of this section
if the party filing the motion establishes that alternative procedures or
technologies allow the taking of telephone testimony.
(6) A party filing a motion for telephone testimony under this
section must pay all costs of the telephone testimony, including the
costs of alternative procedures or technologies used for the taking of
telephone testimony. No part of those costs may be recovered by the party
filing the motions as costs and disbursements in the proceeding.
(7) Factors that a court may consider that would support a finding
of good cause for the purpose of a motion under this section include:
(a) The witness or party might be unavailable because of age,
infirmity or mental or physical illness;
(b) The party filing the motion seeks to take the telephone
testimony of a witness whose attendance the party has been unable to
secure by process or other reasonable means;
(c) A personal appearance by the party or witness would be an undue
hardship on the party or witness; or
(d) Any other circumstances that constitute good cause.
(8) This section does not apply to a workers’ compensation hearing
or to any other administrative proceeding.
(9) For purposes of this section, “telephone testimony” means
testimony given by telephone or by any other two-way electronic
communication device, including but not limited to satellite, cellular or
other interactive communication device. [1993 c.425 §1; 2001 c.398 §1;
2003 c.262 §1]PENALTIES Violation
of ORS 45.135 or 45.138 is a violation. A person violating ORS 45.135 or
45.138 is subject to a fine of up to $500. [1999 c.942 §3; 1999 c.1051
§322d]
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