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]

Source: Section 136.040 — When presence of defendant is necessary, https://www.­oregonlegislature.­gov/bills_laws/ors/ors136.­html.

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

136.001
Right to jury trial
136.005
Challenge to jury panel
136.010
When issue of fact arises
136.030
How issues are tried
136.040
When presence of defendant is necessary
136.050
Reasonable doubt as to degree of crime committed by defendant
136.060
Jointly charged defendants to be tried jointly
136.070
Postponement of trial
136.080
Deposition of witness as condition of postponement
136.090
Procedure for taking deposition
136.100
Filing and use of deposition
136.110
Commitment of defendant after release
136.120
Dismissal when prosecutor unready for trial
136.145
Setting of court dates when presence of victim required
136.210
Jury number
136.220
Challenge for implied bias
136.230
Peremptory challenges
136.240
Challenge of accepted juror
136.250
Taking of challenges
136.260
Selection of alternate jurors
136.270
Oath, conduct and attendance of alternate jurors at trial
136.280
Substitution of alternate for discharged juror
136.285
Priority in trial schedule for defendants in custody
136.290
Limit on custody of defendant prior to trial
136.295
Application of ORS 136.290
136.300
Time limit on appeals to circuit court
136.310
Function of court
136.320
Function of jury
136.325
Jury not to be informed of and not to consider punishment that may be imposed
136.330
Trial procedure
136.345
When attendance of woman officer is required
136.347
Appointment, duties and compensation of woman officer
136.415
Presumption of innocence
136.420
Testimony to be given orally in court
136.425
Confessions and admissions
136.427
Confessions
136.430
Civil laws of evidence in criminal trials
136.432
Limitation on court’s authority to exclude relevant evidence
136.433
Proving previous conviction
136.434
Challenge to validity of previous conviction
136.435
Admissibility of evidence from felony defendant not informed as required under ORS 135.070
136.437
Use of evidence in prosecution of prostitution offense
136.440
Testimony of accomplice
136.445
Motion for acquittal
136.447
Medical records
136.450
Number of jurors required for verdict
136.455
General verdict on plea of not guilty
136.460
Verdict where crime consists of degrees
136.465
Verdict where crime or attempt included within charge
136.470
Conviction or acquittal of one or more of several defendants
136.475
Verdict as to some of several defendants
136.480
Reconsideration of verdict when jury makes mistake as to law
136.485
Reconsideration of verdict which is not general verdict
136.490
Discharge of defendant upon acquittal
136.495
Proceedings after adverse general verdict
136.500
Motion in arrest of judgment
136.505
Effect of allowance of motion
136.515
Order when evidence shows guilt
136.525
Order when evidence is insufficient
136.535
New trial
136.555
Subpoena defined
136.557
Issuance of subpoena by magistrate for witnesses at preliminary examination
136.563
Issuance of subpoena by district attorney for witnesses before grand jury
136.565
Issuance of subpoena by district attorney for witnesses at trial
136.567
Issuance of subpoena for witnesses for defendant
136.570
Application for subpoenas for more than 10 witnesses
136.575
Forms of subpoenas
136.580
Subpoenas when books, papers or documents are required
136.583
Seizure or production of papers, documents or records from recipient
136.585
By whom subpoena is served
136.595
How subpoena is served
136.600
Certain civil procedures applicable in criminal context
136.602
Witness fees payable by county
136.603
Payment of witness who is from outside state or is indigent
136.608
Application procedure
136.611
Court action upon receipt of application
136.612
Hearing
136.614
Witness held in detention facility
136.616
Deposition to perpetuate testimony
136.617
Motion to compel witness who may be incriminated to testify
136.619
Immunity of witness compelled to testify
136.623
Definitions
136.625
Where witness material to proceeding in another state is in this state
136.627
Where witness material to proceeding in this state is in another state
136.633
Immunity of witness from arrest or service of process
136.635
Construction of ORS 136.623 to 136.637
136.637
Short title
136.643
Defendant as witness
136.645
Codefendant as witness
136.655
Spouse as witness
136.675
Conditions for use of testimony of persons subjected to hypnosis
136.685
Required explanations by law enforcement personnel to hypnosis subject
136.695
Evidence obtained in violation of ORS 136.675 or 136.685 inadmissible
136.760
Definitions for ORS 136.765 to 136.785
136.765
Notice to defendant
136.770
Enhancement fact related to offense
136.773
Enhancement fact related to defendant
136.776
Effect of waiver of right to jury trial
136.780
Evidence
136.785
Burden of proof
136.790
Notice to defendant upon remand
136.792
Jury upon remand
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