USA Statutes : oregon
Title : TITLE 14 PROCEDURE IN CRIMINAL MATTERS GENERALLY
Chapter : Chapter 136 Criminal Trials
(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] (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] An issue of fact arises upon a
plea of not guilty. [Amended by 1973 c.836 §223] 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] (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 defendant’s 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]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.
(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 victim’s 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] 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] 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.
[Amended by 1973 c.836 §227] 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]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] 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]
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]SELECTION OF JURY (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] 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] (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 party’s 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 party’s right of
peremptory challenge is not exhausted, that party’s further challenges
shall be confined, in that party’s 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] 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 the sum of the peremptory challenges the
defendants could have exercised. [Amended by 1973 c.836 §234; 1997 c.511
§2]
(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]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.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 section 4 (5), chapter 463, Oregon
Laws 2005, 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]Note: The amendments to 136.280 by section 19, chapter 463, Oregon
Laws 2005, become operative January 2, 2008. See section 20, chapter 463,
Oregon Laws 2005. The text that is operative on and after January 2,
2008, is set forth for the user’s convenience.

136.280. 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. 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.SCHEDULING OF TRIAL 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](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
(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
Oregon, provided that law enforcement authorities from the other
jurisdiction and this state have conducted the extradition with all
practicable speed. The original 60-day period shall not be extended more
than an additional 60 days, except where delay has been caused by the
defendant in opposing the extradition.

(3) Any reasonable delay resulting from examination or hearing
regarding the defendant’s 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
defendant’s 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 defendant’s arrest in which the defendant
is not actually in custody shall not be included in the 60-day
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 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] 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. [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.(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] 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] 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]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. [Formerly 136.520] 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] (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 defendant’s 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 defendant’s conduct occurred while
the defendant was in the custody of a peace officer unless the
defendant’s 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]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]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 United States Constitution or the Oregon Constitution;

(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.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](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]
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.
[Formerly 136.605] 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 (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] 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] (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] 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]Upon an accusatory instrument against several defendants, any
one or more may be convicted or acquitted. [Formerly 136.670]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]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] 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] 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] 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 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] 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] 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] 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]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]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]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] (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. [Formerly 139.050; 1977 c.746 §4; 1981 c.174 §1; 1987 c.606
§2; 1989 c.171 §17]
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]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 OREGON

(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 OREGONTo 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 OREGONTo 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 OREGON

(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] (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 state’s or the
defendant’s attorneys. [Formerly 139.080; 1993 c.304 §1] 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](1) Except as provided in ORS 136.447 and subsection
(2) 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 officer’s 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 sheriff’s department or a municipal police
department.

(3) When a subpoena has been served as provided in subsection (1)
or (2) 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]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](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](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](Material Witness Order) (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 complainant’s information or a district attorney’s
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. (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 person’s 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.(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 informant’s 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. 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.(Compelling Witnesses)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] (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](Uniform Act to Secure Attendance of Witnesses From Without a State in
Criminal Proceedings)(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 United
States and District of Columbia.

(3) The word “summons” shall include a subpoena, order or other
notice requiring the appearance of a witness. [Formerly 139.210](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](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] (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] 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] 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] (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](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 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](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]