Chapter 045

      45.010

NOTES OF DECISIONS

      Testimony taken by telephone during trial was not deposition but was oral examination which ORS 45.040 requires to be “in the presence” of jury or tribunal which is to decide fact or act upon it, and it was error for court to allow telephonic testimony in absence of statute or procedural rule allowing it. State ex rel Juv. Dept. v. Gates, 86 Or App 631, 740 P2d 217 (1987), Sup Ct review denied

      Where witness testifies in court that contents of written statement by witness are truthful, testimony is sufficient to make contents of statement part of evidentiary record for purpose of appellate review. Lowrance v. Trow, 225 Or App 250, 200 P3d 637 (2009)

      45.040

NOTES OF DECISIONS

      Testimony taken by telephone during trial was not deposition but was oral examination which this section requires to be “in the presence” of jury or tribunal which is to decide fact or act upon it, and it was error for court to allow telephonic testimony in absence of statute or procedural rule allowing it. State ex rel Juv. Dept. v. Gates, 86 Or App 631, 740 P2d 217 (1987), Sup Ct review denied

      45.250

NOTES OF DECISIONS

      Erroneous admission of a deposition is not reversible error if the witness is later called and testifies. Fulton v. B. F. Goodrich Co., 260 Or 245, 490 P2d 178 (1971)

      A deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness, irrespective of whether parties other than the one taking the deposition were present or represented at the taking of the deposition or had due notice thereof. Osborne v. Bessonette, 265 Or 224, 508 P2d 185 (1973)

      The depositions of party defendants are admissible as substantive evidence against all defendants. Stroda v. State Hwy. Comm., 22 Or App 403, 539 P2d 1147 (1975)

      In marriage dissolution case, where husband made informed decision, after notice, to forego representation at deposition, he could not later complain about its admission. Fearn and Fearn, 45 Or App 517, 608 P2d 620 (1980)

      To admit deposition testimony, offering party need only show inability to procure attendance of witness by subpoena, and not that offering party sought voluntary return of witness under ORS 40.465 (OEC Rule 804). Hansen v. Abrasive Engineering and Manufacturing, 317 Or 378, 856 P2d 625 (1993)

      “Managing agent” refers to person enjoying high rank and authority over significant part of corporate operations. Graham v. Brix Maritime Co., 160 Or App 1, 979 P2d 765 (1999)

      45.273

NOTES OF DECISIONS

      Policy of state does not require appointment of interpreter for non-English-speaking juror, and prospective jurors may be dismissed on basis that they do not speak English. State v. Haugen, 349 Or 174, 243 P3d 31 (2010)

      45.275

NOTES OF DECISIONS

      Interpretation of recording need not be contemporaneous with playing of recording in court. State v. Gonzales-Gutierrez, 216 Or App 97, 171 P3d 384 (2007), Sup Ct review denied

      Provision does not require appointment of interpreter for non-English-speaking juror, and prospective jurors may be dismissed on basis that they do not speak English. State v. Haugen, 349 Or 174, 243 P3d 31 (2010)

      45.400

NOTES OF DECISIONS

      Court erred by allowing physician’s testimony by telephone where that testimony made up entirety of Department of Human Services’ jurisdictional case and denied parent opportunity to conduct in-person cross-examination of witness. Dept. of Human Services v. K.A.H., 278 Or App 284, 381 P3d 1052 (2016)

      Any error associated with admitting telephonic testimony about prehearing behavior and events was harmless where telephonic testimony was cumulative in material respects to other testimony admitted at trial about events occurring closer in time to hearing. State v. M.P., 312 Or App 411, 493 P3d 1051 (2021)

      45.600

See annotations under ORS 40.355.

      45.620

See annotations under ORS 40.350.