Arraignment and Pretrial Provisions

ORS 135.815
Disclosure to defendant


(1)

Except as otherwise provided in ORS 135.855 (Material and information not subject to discovery) and 135.873 (Protective orders), the district attorney shall disclose to a represented defendant the following material and information within the possession or control of the district attorney:

(a)

The names and addresses of persons whom the district attorney intends to call as witnesses at any stage of the trial, together with their relevant written or recorded statements or memoranda of any oral statements of such persons.

(b)

Any written or recorded statements or memoranda of any oral statements made by the defendant, or made by a codefendant if the trial is to be a joint one.

(c)

Any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments or comparisons which the district attorney intends to offer in evidence at the trial.

(d)

Any books, papers, documents, photographs or tangible objects:

(A)

Which the district attorney intends to offer in evidence at the trial; or

(B)

Which were obtained from or belong to the defendant.

(e)

If actually known to the district attorney, any record of prior criminal convictions of persons whom the district attorney intends to call as witnesses at the trial; and the district attorney shall make a good faith effort to determine if such convictions have occurred.

(f)

All prior convictions of the defendant known to the state that would affect the determination of the defendant’s criminal history for sentencing under rules of the Oregon Criminal Justice Commission.

(g)

Any material or information that tends to:

(A)

Exculpate the defendant;

(B)

Negate or mitigate the defendant’s guilt or punishment; or

(C)

Impeach a person the district attorney intends to call as a witness at the trial.

(2)

(a) The disclosure required by subsection (1)(g) of this section shall occur without delay after arraignment and prior to the entry of any guilty plea pursuant to an agreement with the state. If the existence of the material or information is not known at that time, the disclosure shall be made upon discovery without regard to whether the represented defendant has entered or agreed to enter a guilty plea.

(b)

Nothing in subsection (1)(g) of this section:

(A)

Expands any obligation under a statutory provision or the Oregon or United States Constitution to disclose, or right to disclosure of, personnel or internal affairs files of law enforcement officers.

(B)

Imposes any obligation on the district attorney to provide material or information beyond the obligation imposed by the Oregon and United States Constitutions.

(3)

Except as otherwise provided in ORS 135.855 (Material and information not subject to discovery) and 135.873 (Protective orders), in prosecutions for violation of ORS 813.010 (Driving under the influence of intoxicants) in which an instrument was used to test a person’s breath, blood or urine to determine the alcoholic content of the person’s blood the district attorney shall disclose to a represented defendant at least the following material and information within the possession or control of the district attorney:

(a)

Any report prepared by a police officer relating to field tests, interviews, observations and other information relating to the charged offense;

(b)

Any report relating to the test results;

(c)

A copy of the form provided to the defendant under ORS 813.100 (Implied consent to breath or blood test) (2)(b); and

(d)

Any checklist prepared by the operator of the instrument for the test.

(4)

(a) If a defendant is not represented by a lawyer, the district attorney shall disclose to the defendant all of the information described in subsections (1) and (3) of this section except for the personal identifiers of the victim and any witnesses.

(b)

Notwithstanding paragraph (a) of this subsection, the district attorney shall disclose the personal identifiers of the victim and any witnesses if the trial court orders the disclosure. A trial court shall order the district attorney to disclose the personal identifiers of the victim and any witnesses if the trial court finds that:

(A)

The defendant has requested the information; and

(B)

(i) The victim or witness is a business or institution and disclosure of the information would not represent a risk of harm to the victim or witness; or

(ii)

The need for the information cannot reasonably be met by other means.

(5)

(a) Unless authorized by the trial court to disclose the information, a lawyer representing a defendant, or a representative of the lawyer, may not disclose to the defendant personal identifiers of a victim or witness obtained under subsections (1) and (3) of this section.

(b)

The trial court shall order the lawyer, or representative of the lawyer, to disclose to the defendant the personal identifiers of a victim or witness if the court finds that:

(A)

The defendant’s lawyer has requested the district attorney to disclose the information to the defendant;

(B)

The district attorney has refused to disclose the information to the defendant; and

(C)

The need for the information cannot reasonably be met by other means.

(6)

As used in this section:

(a)

“Personal identifiers” means:

(A)

In relation to a witness, the witness’s address, telephone number, Social Security number and date of birth and the identifying number of the witness’s depository account at a financial institution, as defined in ORS 706.008 (Additional definitions for Bank Act), or credit card account.

(B)

In relation to a victim, the victim’s address, electronic mail address, telephone number, Social Security number, date of birth, any user names or other identifying information associated with the victim’s social media accounts and the identifying number of the victim’s depository account at a financial institution, as defined in ORS 706.008 (Additional definitions for Bank Act), or credit card account.

(b)

“Representative of the lawyer” has the meaning given that term in ORS 40.225 (Rule 503. Lawyer-client privilege).

(c)

“Represented defendant” means a defendant who is represented by a lawyer in a criminal action.

(d)

“Social media” has the meaning given that term in ORS 659A.330 (Employee social media account privacy). [1973 c.836 §214; 1989 c.790 §5; 1993 c.469 §2; 1999 c.304 §1; 2005 c.545 §1; 2007 c.581 §1; 2013 c.525 §1; 2017 c.171 §1; 2019 c.475 §11]

Notes of Decisions

Where a police informant was neither a witness to nor a participant in the commission of the crime charged and did no more than provide facts which helped form basis of probable cause to arrest defendant, testimony of the informer was not significant in establishing guilt or innocence of defendant and state could refuse to disclose his identity. State v. Jessie, 17 Or App 368, 521 P2d 1323 (1974), Sup Ct review denied

Statements or memoranda of witnesses are subject to the disclosure requirements regardless of whether they ever actually came within the possession of the prosecutor. State v. Johnson, 26 Or App 651, 554 P2d 624 (1976)

Where report is created, it is subject to discovery as "statement" notwithstanding later incorporation into another report. State v. Johnson, 26 Or App 651, 554 P2d 624 (1976)

In criminal case, where state did not intend to offer items in evidence, and they were not obtained from and did not belong to defendant, such items were not discoverable by the defendant. State v. Koennecke, 274 Or 169, 545 P2d 127 (1976)

"Statement" means account of event or declaration of fact intended as complete expression of event or fact. State v. Bray, 31 Or App 47, 569 P2d 688 (1977)

Police officer's notes are not "statements" and therefore are not subject to discovery. State v. Bray, 31 Or App 47, 569 P2d 688 (1977); State v. Warren, 31 Or App 1121, 572 P2d 341 (1977); State v. McKeen, 33 Or App 343, 576 P2d 804 (1978); State v. Armstrong, 71 Or App 467, 692 P2d 699 (1984); State v. Wrisley, 138 Or App 344, 909 P2d 877 (1995), Sup Ct review denied

Notes and rough drafts used to prepare final report are not discoverable as statements where no significant difference exists between rough drafts and final report. State v. Jackson, 31 Or App 645, 571 P2d 523 (1977)

Where defendant did not request discovery in accordance with ORS 135.845 he could not claim prejudice by state's alleged failure to comply with this section. State v. Dixon, 31 Or App 1027, 571 P2d 922 (1977), Sup Ct review denied

Fact that defendant could have obtained copies of requested records on his own initiative did not relieve state of duty to disclose imposed by this section. State v. Carsner, 31 Or App 1115, 572 P2d 339 (1977)

In trial of defendant charged with theft of tractor, it was improper for trial court to overrule, without making further factual inquiry, defendant's objection that photographs of allegedly stolen tractor had not been disclosed to him prior to trial. State v. Warren, 31 Or App 1121, 572 P2d 341 (1977)

Notes and rough drafts differ from "statements" because notes and drafts are not intended to serve as communication to others. State v. Morrison, 33 Or App 9, 575 P2d 988 (1978)

Fragmentary notes and rough drafts are not subject to discovery as "statements." State v. Morrison, 33 Or App 9, 575 P2d 988 (1978); State v. Wrisley, 138 Or App 344, 909 P2d 877 (1995), Sup Ct review denied

Skull of victim was not discoverable by defendant under this section. State v. Oliverez, 34 Or App 417, 578 P2d 502 (1978), Sup Ct review denied

There was no violation of this section where traces of blood disappeared from knife used in robbery without explanation, but nothing in record established that any tests which prosecution would be required to disclose were performed upon knife. State v. Kilpatrick, 35 Or App 749, 582 P2d 480 (1978)

State's failure to disclose existence of audio recording of defendant's arrest was not improper where defendant did not meet burden of showing evidence was favorable and material to his guilt or innocence, and record did not indicate evidence was prejudicial. State v. Peters, 39 Or App 109, 591 P2d 761 (1979), Sup Ct review denied

Breathalyzer ampule is not result of scientific test, experiment, or comparison subject to discovery, nor is breath within ampule "tangible object" subject to discovery. State v. Simpson, 40 Or App 83, 594 P2d 425 (1979)

Where defendant was charged with assaulting his ten-year-old son, and where caseworker testified that she had made notes of conversation with defendant's wife shortly after conversation occurred, caseworker's notes were written statements of witness. State v. Johns, 44 Or App 421, 606 P2d 640 (1980), Sup Ct review denied

Police officer's notes of defendant's statements were discoverable as "memoranda of . . . oral statements made by defendant," notwithstanding that copy of report prepared from notes had been given to defendant. State v. Fritz, 72 Or App 409, 695 P2d 972 (1985), Sup Ct review denied

Arresting officer's response to complaint of misconduct of arresting officer relating to circumstances of arrest of relator which relator sought in conjunction with criminal prosecution is subject to discovery under this section. State ex rel Wilson v. Thomas, 74 Or App 137, 700 P2d 1045 (1985), Sup Ct review denied

District attorney is not required to disclose capacity in which witness will testify nor content of testimony and was not required to inform defendant that witness would be testifying as expert. State v. Caulder, 75 Or App 457, 706 P2d 1007 (1985), Sup Ct review denied

Where caseworker took notes during interviews with complainant and her mother, both of whom testified against defendant, charged with sexual abuse, notes of those conversations would be memoranda of oral statements by state's witnesses and in control of district attorney. State v. Warren, 81 Or App 463, 726 P2d 387 (1986), aff'd 304 Or 428, 746 P2d 711 (1987)

Where defendant, charged with sodomy and sexual abuse, was denied access to Children's Services Division file about victim and offense, no statute granted defendant direct access to entire CSD file though trial court should conduct in camera review of those portions of file as indicated in defendant's discovery request, determine whether it contains evidence favorable to defense and turn such evidence over to defendant. State v. Warren, 304 Or 428, 746 P2d 711 (1987)

Where defendant sought disclosure of statements made by state's prospective witnesses and requested in camera inspection by court of Children's Services Division case records relating to victim, court erred when it failed to review files for exculpatory evidence. State v. Wattenbarger, 97 Or App 414, 776 P2d 1292 (1989), Sup Ct review denied

This section did not provide authority for trial court's order directing district attorney to produce each of 53 children in custody of State of Oregon Children's Services Division for pretrial interview by defense counsel. State ex rel O'Leary v. Lowe, 307 Or 395, 769 P2d 188 (1989)

Court did not abuse its discretion in denying defendant's discovery motion requesting state to produce and classify extensive information on all instances of use of particular model of intoxilyzer machine. State v. Andes, 104 Or App 719, 803 P2d 273 (1990), Sup Ct review denied

Where state provided defendant with photocopy of photo state intended to introduce into evidence, this section is not violated by inadvertent failure of state to provide defendant with copy of photo. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

Trial judge's duty to undertake in camera inspection of Children's Services Division case records cannot be delegated to party or to party's counsel. State ex rel Carlile v. Lewis, 310 Or 541, 800 P2d 786 (1990)

Trial court did not err in denying motion to make genitalia of victims of sexual abuse available for inspection since district attorney had no custodial relationship with victims that gave him authority to compel examination. State v. Gallup, 108 Or App 508, 816 P2d 669 (1991)

Prosecutor was required to disclose portions of Children's Services Division files containing written memoranda of statements of witnesses state intended to call, even though files were confidential under [former] ORS 418.770. State v. Wood, 112 Or App 61, 827 P2d 924 (1992), Sup Ct review denied

Because state did not call defendant's wife or 911 dispatcher and no evidence indicates state intended to call wife or dispatcher, recorded conversation between wife and 911 dispatcher was not subject to discovery. State v. Norman, 114 Or App 395, 835 P2d 146 (1992)

Inspection of police personnel file by trial court in camerawas appropriate to determine whether file contained exculpatory material. State v. Leslie, 119 Or App 249, 850 P2d 1135 (1993), Sup Ct review denied

Where evidence was not inherently exculpatory and no direct link existed between evidence and defendant's involvement in crime, defendant failed to prove that undisclosed evidence was material and favorable to defense. State v. Baker, 126 Or App 255, 867 P2d 1392 (1994), Sup Ct review denied

Written statements are "relevant" and subject to disclosure only if pertaining to specific testimony to be given by particular witness being called. State v. Divito, 152 Or App 672, 955 P2d 327 (1998), aff'd on other grounds, 330 Or 319, 5 P3d 1103 (2000)

Police failure to include relevant information in notes or reports is not imputable to district attorney as failure to disclose information. State v. Divito, 330 Or 319, 5 P3d 1103 (2000)

§§ 135.805 to 135.873

See also annotations under ORS 133.755 in permanent edition.

Notes of Decisions

Copy of letter sent to district court and also to district attorney's office, entering not guilty plea and stating "by copy of this letter I am demanding reciprocal discovery from the District Attorney's office," was insufficient to make formal demand for disclosure of classes of information available under these sections. State v. Sheppard, 32 Or App 345, 573 P2d 1276 (1978), Sup Ct review denied

Specifications, operating instructions and repair and maintenance records for radar device with which arresting officer measured defendant's speed were not discoverable under these sections. State v. Spada, 33 Or App 257, 576 P2d 33 (1978), aff'd286 Or 305, 594 P2d 815 (1979)

These sections afford defendant opportunity to obtain specific and detailed information about state's theory of case and evidence it intends to produce at trial, and purposes that indictments and complaints are designed to serve in criminal cases are now served as well or better by discovery. State v. Strandquist, 57 Or App 404, 644 P2d 658 (1982), Sup Ct review denied

Nothing in discovery statutes prevents state from initiating grand jury investigation of possible criminal activities by potential defense witnesses. State v. Huffman, 65 Or App 594, 672 P2d 1351 (1983)

Where defendant appeals conviction and trial court precluded defense witness because of alleged discovery violation and state being prejudiced, trial court obligated to explore other alternatives to remedy prejudice before precluding witness from testifying. State v. Gill, 96 Or App 358, 772 P2d 957 (1989)

Law Review Citations

51 OLR 354-369 (1972); 10 WLJ 145-166 (1974); 18 WLR 279 (1982)


Source

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Jun. 26, 2021