Effect of failure to comply with discovery requirements
Source:
Section 135.865 — Effect of failure to comply with discovery requirements, https://www.oregonlegislature.gov/bills_laws/ors/ors135.html.
Notes of Decisions
Remedies in this section for violation of ORS 135.815 are in the alternative and are subject to choice by court rather than by defense counsel. State v. Hand, 19 Or App 514, 528 P2d 126 (1974), Sup Ct review denied
This section makes it clear that not every breach of duty imposed by pretrial discovery statutes requires suppression of proffered evidence. State v. Curtis, 20 Or App 35, 530 P2d 520 (1975), Sup Ct review denied
Though presence or absence of prejudice is important factor to be considered by trial court in deciding whether to impose sanction of refusing to receive in evidence material that has not been disclosed, this section does not require existence of prejudice as condition to imposition of that sanction. State v. Wolfe, 21 Or App 717, 536 P2d 555 (1975), aff’d 273 Or 518, 542 P2d 482 (1975); State v. Dyson, 292 Or 26, 636 P2d 961 (1981). But see State v. Mai, 294 Or 269, 656 P2d 315 (1982)
Trial court had discretion to suppress testimony of state’s witness where the state violated discovery statutes. State v. Johnson, 26 Or App 651, 554 P2d 624 (1976)
In prosecution for driving under influence of intoxicants where police officer’s report was lost and unavailable for discovery, it was error for court, as sanction, to suppress officer’s testimony limited to fact that defendant was driving. State v. Campbell, 44 Or App 3, 604 P2d 1266 (1980), Sup Ct review denied
Where there was nothing in record to show that trial judge considered whether, or to what extent, defendant was prejudiced if in fact state violated discovery statutes, it was improper for trial court to allow defendant’s pretrial motion to dismiss complaint for state’s alleged failure to allow defendant discovery. State v. Mead, 44 Or App 53, 604 P2d 1283 (1980)
Prejudice which resulted from state’s failure to provide defendant with tape recording prior to trial was adequately dispelled when trial court granted defendant 13-day continuance and leave to reopen case. State v. Kersey, 54 Or App 944, 636 P2d 1009 (1981)
Court is required to make inquiry into alleged discovery violation and possible prejudicial effect prior to allowing introduction of evidence. State v. George, 55 Or App 224, 637 P2d 1305 (1981), as modified by 56 Or App 1, 640 P2d 1043 (1982)
Where exculpatory nature of unavailable evidence was speculative and where it would have been cumulative of other evidence produced at trial, trial judge did not abuse his discretion in denying motions to suppress and dismiss. State v. Guinn, 56 Or App 412, 642 P2d 312 (1982)
The preclusion sanction of this section is not inconsistent with the Article I, Section 11 right to compulsory process of the Oregon Constitution provided that the court finds that the prosecution is prejudiced by defendant’s failure to comply with the reciprocal discovery statutes and provided further that it appears that no sanction short of preclusion effectively will avoid the prejudice which defendant’s lack of compliance created. State v. Mai, 294 Or 269, 656 P2d 315 (1982); State v. Johanesen, 110 Or App 348, 822 P2d 154 (1991); State v. Fain, 132 Or App 488, 888 P2d 1052 (1995)
It was proper to exclude videotape where trial had been twice postponed, repeated attempts by defendant’s attorney to secure copy of videotape were unsuccessful, trial judge ordered copy provided defendant one week prior to scheduled trial date, trial judge expressly concluded that nondisclosure prejudiced defendant and trial judge concluded that district attorney had shown notable lack of diligence in following through on discovery efforts. State v. Kull, 298 Or 38, 688 P2d 1327 (1984)
Law Review Citations
18 WLR 291 (1982)
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