Criminal Trials

ORS 136.617
Motion to compel witness who may be incriminated to testify


In any criminal proceeding before a court of record or in any proceeding before a grand jury, or in any proceeding before a court of record under ORS 646.760 (Civil penalties), or in any proceeding for the imposition of remedial or punitive sanction for contempt, if a witness refuses to testify or produce evidence of any kind on the ground that the witness may be incriminated thereby, the prosecuting attorney may move the court to order the witness to testify or produce evidence. The court shall forthwith hold a summary hearing at which the prosecuting attorney shall show reasonable cause to believe the witness possesses knowledge relevant to the proceeding, or that no privilege protects the evidence sought to be produced. The witness may show cause why the witness should not be compelled to testify or produce evidence. The court shall order the witness to testify regarding the subject matter under inquiry upon such showing of reasonable cause or shall order the production of evidence upon a finding that no privilege protects the evidence sought, unless the court finds that to do so would be clearly contrary to the public interest. The court shall hold the summary hearing outside the presence of the jury and the public and may require the prosecuting attorney to disclose the purpose of the testimony or evidence. The witness shall be entitled to be represented by counsel at the summary hearing. [Formerly 139.190; 1975 c.255 §14; 1981 c.882 §1; 1991 c.724 §25a]

Notes of Decisions

Under this section, trial court finding at summary hearing that there is reasonable cause to believe witness possesses knowledge relevant to case requires entry of order that witness testify regarding subject matter under inquiry unless court finds that to do so would be clearly contrary to public interest. State ex rel Lasswell v. Sanders, 293 Or 41, 643 P2d 1273 (1982)

This section, in providing that summary hearing to determine whether witness in criminal case has constitutional right not to testify or produce evidence shall be conducted outside presence of jury and public, violates section 10, Article I of Oregon Constitution. Oregonian Publishing Co. v. O'Leary, 303 Or 297, 736 P2d 173 (1987)

This section is not independent source of authority to take testimony before witness has been called in normal course of trial or other proceeding. State v. Nefstad, 99 Or App 12, 781 P2d 358 (1989), Sup Ct review denied

When contemnor first indicated he would refuse to testify on Fifth Amendment grounds, he had right to counsel under this section. State v. Rogers/Jones, 102 Or App 424, 794 P2d 1245 (1990)

Law Review Citations

51 OLR 573-577 (1972)


Source

Last accessed
Jun. 26, 2021