Criminal Trials

ORS 136.040
When presence of defendant is necessary

(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 (Misdemeanor treated as violation) or 161.568 (Misdemeanor treated as violation). [Amended by 1973 c.836 §225; 1993 c.533 §3; 1999 c.1051 §123]

Notes of Decisions

Defendant can waive, by conduct, right to be present at felony trial. State v. Harris, 291 Or 179, 630 P2d 332 (1981)

There was sufficient information from which trial judge could have concluded, at the time, that defendant voluntarily absented himself from trial and thereby waived his right to be present. State v. Harris, 291 Or 179, 630 P2d 332 (1981)

This section does not prohibit court, in exercise of its discretion, from ordering defendant to be present at trial. State v. Ferguson, 84 Or App 565, 735 P2d 3 (1987)

Where court knew only that defendant was not present for trial and that defendant’s lawyer said that he had told defendant of time and place of trial and where court did not permit defendant’s lawyer to attempt to produce defendant or to discover why he failed to appear, court erred in denying defendant opportunity to appear at trial. State v. Turner, 99 Or App 176, 781 P2d 404 (1989)

Where defendant validly waives right to be present, trial may proceed even if both defendant and counsel are absent and whether or not defendant is represented by counsel. State v. Skillstad, 204 Or App 241, 129 P3d 232 (2006), Sup Ct review denied

Source

Last accessed
Mar. 11, 2023

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