Arraignment and Pretrial Provisions

ORS 135.855
Material and information not subject to discovery


(1)

The following material and information shall not be subject to discovery under ORS 135.805 (Applicability) to 135.873 (Protective orders):

(a)

Work product, legal research, records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the attorneys, peace officers or their agents in connection with the investigation, prosecution or defense of a criminal action.

(b)

The identity of a confidential informant where the identity of the informant is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the defendant. Except as provided in ORS 135.873 (Protective orders), disclosure shall not be denied hereunder of the identity of witnesses to be produced at trial.

(c)

Transcripts, recordings or memoranda of testimony of witnesses before the grand jury, except transcripts or recordings of statements made by the defendant.

(d)

Schematics, source codes or software of an instrument that was used to test a person’s breath, blood or urine to determine the alcoholic content of the person’s blood that are not in the actual possession or control of the state.

(2)

When some parts of certain material are discoverable under ORS 135.805 (Applicability) to 135.873 (Protective orders) or 135.970 (Information required when victim contacted by defense), and other parts not discoverable, as much of the material shall be disclosed as is consistent with the provisions thereof. [1973 c.836 §218; 1999 c.304 §5; 2007 c.581 §2]

Notes of Decisions

Evidence was insufficient to show that disclosure of confidential informant's identity was necessary for defendant's defense where defense of entrapment was unsubstantiated. State v. Gill, 22 Or App 484, 539 P2d 1138 (1975)

Persons accused of murder were not entitled to order requiring recordation of the testimony of witnesses before the grand jury considering indictment against them. State ex rel Smith v. Murchison, 286 Or 469, 595 P2d 1237 (1979)

Where witness for the state had testified on direct examination by the state and grand jury testimony of that witness was previously tape-recorded, defendant was entitled, in furtherance of justice, to examine recording. State v. Hartfield, 290 Or 583, 624 P2d 588 (1981)

Trial court erred in ruling district attorney's file was exempt from disclosure as work product where file consisted primarily of notes taken by district attorney during interviews with witnesses and contained no opinions, theories or conclusions. State v. Gallup, 108 Or App 508, 816 P2d 669 (1991)

§§ 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

Last accessed
Jun. 26, 2021