Chapter 132 — Grand Jury, Indictments and Other Accusatory Instruments

 

2017 EDITION

 

 

GRAND JURY AND ACCUSATORY INSTRUMENTS

 

PROCEDURE IN CRIMINAL MATTERS GENERALLY

 

ORGANIZATION OF GRAND JURY

 

132.010     Composition

 

132.020     Selection of grand juries; law applicable to additional jury; when inquiry void

 

132.030     Challenge of juror prohibited; when juror may be excused

 

132.050     Foreman; alternate

 

132.060     Oath or affirmation of jurors

 

132.070     Charge of court

 

132.080     Clerk

 

132.090     Presence of persons at sittings or deliberations of jury; interpreters

 

132.100     Oath to witness before grand jury

 

132.110     When juror discharged; replacement; proceeding with lesser number

 

132.120     Jury service term; continuation

 

GRAND JUROR IN LATER PROCEEDINGS

 

132.210     Immunity of jurors as to official conduct

 

132.220     Disclosure by juror of testimony of witness examined by jury

 

GRAND JURY PROCEDURES

 

(Recordation of Grand Jury Proceedings)

 

132.250     District attorney to ensure proceedings are recorded; electronic recording equipment; shorthand reporter; rules

 

132.260     Recording of testimony required; matters that may not be recorded

 

132.270     Release and use of recording, transcript, notes or report; protective orders

 

(Indictment Procedures)

 

132.310     Inquiry into crimes; presentation to court

 

132.320     Consideration of evidence; appearance by defendant

 

132.330     Submission of indictment by district attorney

 

132.340     Duties of district attorney for jury

 

132.350     Juror’s knowledge of an offense; action thereon

 

132.360     Number of jurors required to concur

 

132.370     Presentment of facts to court for instruction as to law

 

132.380     Whom the grand jury may indict

 

132.390     When the grand jury may indict

 

132.400     Indorsement of indictment as “a true bill”

 

132.410     Finding of indictment; filing; inspection

 

132.420     Disclosure relative to indictment not subject to inspection

 

132.430     Finding against indictment; indorsement “not a true bill”

 

(Other Inquiries)

 

132.440     Inquiry into conditions in correctional and youth correction facilities

 

SUFFICIENCY OF INDICTMENT

 

132.510     Forms of pleadings

 

132.540     Sufficiency of indictment; previous convictions; use of statutory language

 

132.550     Contents of indictment

 

132.557     Indictment must contain subcategory facts under certain circumstances

 

132.560     Joinder of counts and charges; consolidation of charging instruments

 

132.580     Names of grand jury witnesses on indictment; effect of failure to include; procedure to remedy failure

 

ACCUSATORY INSTRUMENTS

 

132.586     Pleading domestic violence in accusatory instrument

 

PENALTIES

 

132.990     Premature inspection or disclosure of contents of indictment

 

ORGANIZATION OF GRAND JURY

 

      132.010 Composition. A grand jury is a body of seven persons drawn from the jurors in attendance upon the circuit court at a particular jury service term, having the qualifications prescribed by ORS 10.030 and sworn to inquire of crimes committed or triable within the county from which they are selected. [Amended by 1985 c.703 §22]

 

      132.020 Selection of grand juries; law applicable to additional jury; when inquiry void. (1) Under the direction of the court, the clerk shall draw names at random from the names of jurors in attendance upon the court until the names of seven jurors are drawn and accepted by the court. The seven persons thus chosen shall constitute the grand jury.

      (2) When the court, in its discretion, considers that one or more additional grand juries is needed for the administration of justice, one or more additional grand juries shall be selected in the manner provided in subsection (1) of this section.

      (3) Any law applicable to the grand jury is equally applicable to any additional grand jury selected under subsection (2) of this section, except that whenever any duties or functions are imposed upon the grand jury, it shall be sufficient if such duties or functions are performed by one of the grand juries selected under this section.

      (4) Any inquiry or investigation required by law to be made by a grand jury shall be void, unless such inquiry or investigation was made entirely by the same grand jury. [Amended by 1959 c.59 §1; 1985 c.703 §23]

 

      132.030 Challenge of juror prohibited; when juror may be excused. Neither the grand jury panel nor any individual juror may be challenged. A judge of the court or clerk of court, as defined in ORS 10.010, may at any time after a juror is drawn and before the juror is sworn excuse the juror from jury service for any reason prescribed in ORS 10.050. [Amended by 1973 c.836 §36; 1979 c.728 §5; 1985 c.703 §24; 1999 c.1085 §2]

 

      132.040 [Repealed by 1973 c.836 §358]

 

      132.050 Foreman; alternate. The court shall appoint a foreman and an alternate foreman of the grand jury from the persons chosen to constitute that body. The alternate foreman shall have the duties and powers of the foreman in the absence of the foreman. [Amended by 1973 c.836 §37]

 

      132.060 Oath or affirmation of jurors. (1) Before the members of the grand jury enter upon the discharge of their duties, the following oath must be administered to them by or under the direction of the court:

______________________________________________________________________________

      You, as grand jurors for the County of______, do solemnly swear that you will diligently inquire into, and true presentment or indictment make of, all crimes against this state committed or triable within this county that shall come to your knowledge; that you will keep secret the proceedings before you, the counsel of the state, your own counsel and that of your fellows; that you will indict no person through envy, hatred or malice nor leave any person not indicted through fear, favor, affection or hope of reward; but that you will indict upon the evidence before you according to the truth and the laws of this state, so help you God.

______________________________________________________________________________

      (2) In administering this oath, the blank therein must be filled with the name of the county in which the court is sitting; and if any juror prefers, the juror must be allowed to affirm thereto, in which case, instead of the final phrase thereof there must be added, “and this you promise under the pains and penalties of perjury.” [Amended by 1973 c.836 §38]

 

      132.070 Charge of court. When the grand jury is formed, the court shall charge it and give it such information as the court deems proper concerning the nature of its powers and duties, or charges for crime returned to the court or likely to come before the grand jury.

 

      132.080 Clerk. The members of the grand jury shall appoint one of their number as clerk. The clerk shall keep minutes of their proceedings (except the votes of the individual jurors) and of the substance of the evidence given before them.

 

      Note: 132.080 is repealed July 1, 2019. See sections 14 and 18, chapter 650, Oregon Laws 2017.

 

      132.090 Presence of persons at sittings or deliberations of jury; interpreters. (1) Except as provided in subsections (2) and (3) of this section and ORS 132.250 and 132.260, no person other than the district attorney or a witness actually under examination shall be present during the sittings of the grand jury.

      (2) Upon a motion filed by the district attorney in the circuit court, the circuit judge may appoint a reporter who shall attend the sittings of the grand jury to take and report the testimony in any matters pending before the grand jury, and may appoint a parent, guardian or other appropriate person 18 years of age or older to accompany any child 12 years of age or younger, or any person with an intellectual disability, during an appearance before the grand jury. The circuit judge, upon the district attorney’s showing to the court that it is necessary for the proper examination of a witness appearing before the grand jury, may appoint a guard, medical or other special attendant or nurse, who shall be present in the grand jury room and shall attend such sittings.

      (3) The district attorney may designate an interpreter who is certified under ORS 45.291 to interpret the testimony of witnesses appearing before the grand jury. The district attorney may designate a qualified interpreter, as defined in ORS 45.288, if the circuit court determines that a certified interpreter is not available and that the person designated by the district attorney is a qualified interpreter as defined in ORS 45.288. An interpreter designated under this subsection may be present in the grand jury room and attend the sittings of the grand jury.

      (4) No person other than members of the grand jury shall be present when the grand jury is deliberating or voting upon a matter before it.

      (5) As used in this section, “intellectual disability” has the meaning given that term in ORS 427.005. Intellectual disability may be shown by attaching to the motion of the district attorney:

      (a) Documentary evidence of intellectual functioning; or

      (b) The affidavit of a qualified person familiar with the person with an intellectual disability. “Qualified person” includes, but is not limited to, a teacher, therapist or physician. [Amended by 1973 c.836 §39; 1983 c.375 §1; 1991 c.406 §1; 2001 c.243 §1; 2011 c.658 §31; 2013 c.36 §35; 2017 c.650 §4]

 

Note 1: The amendments to 132.090 by section 4, chapter 650, Oregon Laws 2017, become operative March 1, 2018. See section 18, chapter 650, Oregon Laws 2017. The text that is operative until March 1, 2018, is set forth for the user’s convenience.

      132.090. (1) Except as provided in subsections (2) and (3) of this section, no person other than the district attorney or a witness actually under examination shall be present during the sittings of the grand jury.

      (2) Upon a motion filed by the district attorney in the circuit court, the circuit judge may appoint a reporter who shall attend the sittings of the grand jury to take and report the testimony in any matters pending before the grand jury, and may appoint a parent, guardian or other appropriate person 18 years of age or older to accompany any child 12 years of age or younger, or any person with an intellectual disability, during an appearance before the grand jury. The circuit judge, upon the district attorney’s showing to the court that it is necessary for the proper examination of a witness appearing before the grand jury, may appoint a guard, medical or other special attendant or nurse, who shall be present in the grand jury room and shall attend such sittings.

      (3) The district attorney may designate an interpreter who is certified under ORS 45.291 to interpret the testimony of witnesses appearing before the grand jury. The district attorney may designate a qualified interpreter, as defined in ORS 45.288, if the circuit court determines that a certified interpreter is not available and that the person designated by the district attorney is a qualified interpreter as defined in ORS 45.288. An interpreter designated under this subsection may be present in the grand jury room and attend the sittings of the grand jury.

      (4) No person other than members of the grand jury shall be present when the grand jury is deliberating or voting upon a matter before it.

      (5) As used in this section, “intellectual disability” has the meaning given that term in ORS 427.005. Intellectual disability may be shown by attaching to the motion of the district attorney:

      (a) Documentary evidence of intellectual functioning; or

      (b) The affidavit of a qualified person familiar with the person with an intellectual disability. “Qualified person” includes, but is not limited to, a teacher, therapist or physician.

 

Note 2: The amendments to 132.090 by section 12, chapter 650, Oregon Laws 2017, become operative July 1, 2019. See section 18, chapter 650, Oregon Laws 2017. The text that is operative on and after July 1, 2019, is set forth for the user’s convenience.

      132.090. (1) Except as provided in subsections (2) and (3) of this section and ORS 132.250 and 132.260, no person other than the district attorney or a witness actually under examination shall be present during the sittings of the grand jury.

      (2) Upon a motion filed by the district attorney in the circuit court, the circuit judge may appoint a parent, guardian or other appropriate person 18 years of age or older to accompany any child 12 years of age or younger, or any person with an intellectual disability, during an appearance before the grand jury. The circuit judge, upon the district attorney’s showing to the court that it is necessary for the proper examination of a witness appearing before the grand jury, may appoint a guard, medical or other special attendant or nurse, who shall be present in the grand jury room and shall attend such sittings.

      (3) The district attorney may designate an interpreter who is certified under ORS 45.291 to interpret the testimony of witnesses appearing before the grand jury. The district attorney may designate a qualified interpreter, as defined in ORS 45.288, if the circuit court determines that a certified interpreter is not available and that the person designated by the district attorney is a qualified interpreter as defined in ORS 45.288. An interpreter designated under this subsection may be present in the grand jury room and attend the sittings of the grand jury.

      (4) No person other than members of the grand jury shall be present when the grand jury is deliberating or voting upon a matter before it.

      (5) As used in this section, “intellectual disability” has the meaning given that term in ORS 427.005. Intellectual disability may be shown by attaching to the motion of the district attorney:

      (a) Documentary evidence of intellectual functioning; or

      (b) The affidavit of a qualified person familiar with the person with an intellectual disability. “Qualified person” includes, but is not limited to, a teacher, therapist or physician.

 

      132.100 Oath to witness before grand jury. The foreman of the grand jury or, in the absence of the foreman, any other grand juror shall administer an oath to any witness appearing before the grand jury. [Amended by 1973 c.836 §40]

 

      132.110 When juror discharged; replacement; proceeding with lesser number. After the formation of the grand jury and before it is discharged, the court may:

      (1) Discharge a grand juror who:

      (a) Becomes sick, is out of the county or fails to appear when the grand jury is summoned to reconvene;

      (b) Is related, by affinity or consanguinity within the third degree, to the accused who is under investigation by the grand jury, or held for the commission of a crime; or

      (c) Is unable to continue in the discharge of duties.

      (2) Order that another person be drawn at random and sworn from the jurors then in attendance upon the court, or if no other jurors are there in attendance, from the master jury list of the county, to take the place of a discharged juror.

      (3) Allow at least five grand jurors to proceed upon good cause shown. [Amended by 1973 c.836 §41; 1985 c.703 §25]

 

      132.120 Jury service term; continuation. When the jury service term is completed the grand jury must be discharged by the court; but the judge may, by an order made either in open court or at chambers anywhere in the judicial district and entered of record, stating the reasons, continue the grand jury in session for such period of time as the judge deems advisable. [Amended by 1959 c.638 §13; 1973 c.836 §42; 1985 c.540 §30; 1985 c.703 §26]

 

      132.130 [Repealed by 1973 c.836 §358]

 

GRAND JUROR IN LATER PROCEEDINGS

 

      132.210 Immunity of jurors as to official conduct. A grand juror cannot be questioned for anything the grand juror says or any vote the grand juror gives, while acting as such, relative to any matter legally pending before the grand jury, except for a perjury or false swearing of which the grand juror may have been guilty in giving testimony before such jury. [Amended by 1973 c.836 §43]

 

      132.220 Disclosure by juror of testimony of witness examined by jury. A member of a grand jury may be required by any court to disclose:

      (1) The testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court.

      (2) The testimony given before such grand jury by any person, upon a charge against such person for perjury or false swearing or upon trial therefor. [Amended by 1973 c.836 §44]

 

GRAND JURY PROCEDURES

 

(Recordation of Grand Jury Proceedings)

 

      132.250 District attorney to ensure proceedings are recorded; electronic recording equipment; shorthand reporter; rules. (1)(a) The district attorney of a county comprising a judicial district with a population between 150,000 and 300,000 or over 700,000 shall ensure that proceedings before the grand jury are recorded in the manner described in this section and ORS 132.260.

      (b) The Chief Justice of the Supreme Court shall designate the types of audio electronic recording devices suitable for recording grand jury proceedings and may establish policies and procedures by rule or order to carry out the provisions of this section and ORS 132.260 and 132.270.

      (c) The district attorney shall use to record the grand jury proceedings audio electronic recording devices designated, provided and maintained by the Judicial Department.

      (2)(a) The district attorney shall delegate the recording of grand jury proceedings to a grand juror and shall provide instruction to the grand juror concerning the audio electronic recording equipment and requirements of the recording.

      (b) Notwithstanding paragraph (a) of this subsection, the court may, upon request of the prosecuting attorney, appoint a certified shorthand reporter as defined in ORS 8.415 or a shorthand reporter certified by a national certification association, who shall be permitted to attend all proceedings of the grand jury for the purpose of taking accurate notes. The shorthand reporter’s services shall be paid for by the prosecuting attorney. The shorthand reporter shall be sworn to correctly report the proceedings of the grand jury described in ORS 132.260 and to keep secret any information concerning the grand jury proceedings.

      (c) The grand juror or shorthand reporter recording the proceedings is not subject to subpoena, and may not disclose any information, concerning the grand jury proceedings without prior court order.

      (3)(a) A failure of an audio electronic recording device to accurately record all or part of a grand jury proceeding does not affect the validity of any prosecution or indictment.

      (b) A failure of a grand juror to operate an audio electronic recording device in a manner that accurately records all or part of a grand jury proceeding, as required, does not affect the validity of any prosecution or indictment.

      (c) A failure of a shorthand reporter to prepare accurate notes or an accurate report of all or part of a grand jury proceeding, as required, does not affect the validity of any prosecution or indictment.

      (4) This section and ORS 132.260 do not apply to grand jury proceedings under ORS 132.440 that inquire into the condition and management of correctional facilities and youth correction facilities. [2017 c.650 §1]

 

      Note: 132.250 becomes operative March 1, 2018. See section 18, chapter 650, Oregon Laws 2017.

 

      Note: The amendments to 132.250 by section 9, chapter 650, Oregon Laws 2017, become operative July 1, 2019. See section 18, chapter 650, Oregon Laws 2017. The text that is operative on and after July 1, 2019, is set forth for the user’s convenience.

      132.250. (1)(a) The district attorney of a county shall ensure that proceedings before the grand jury are recorded in the manner described in this section and ORS 132.260.

      (b) The Chief Justice of the Supreme Court shall designate the types of audio electronic recording devices suitable for recording grand jury proceedings and may establish policies and procedures by rule or order to carry out the provisions of this section and ORS 132.260 and 132.270.

      (c) The district attorney shall use to record the grand jury proceedings audio electronic recording devices designated, provided and maintained by the Judicial Department.

      (2)(a) The district attorney shall delegate the recording of grand jury proceedings to a grand juror and shall provide instruction to the grand juror concerning the audio electronic recording equipment and requirements of the recording.

      (b) Notwithstanding paragraph (a) of this subsection, the court may, upon request of the prosecuting attorney, appoint a certified shorthand reporter as defined in ORS 8.415 or a shorthand reporter certified by a national certification association, who shall be permitted to attend all proceedings of the grand jury for the purpose of taking accurate notes. The shorthand reporter’s services shall be paid for by the prosecuting attorney. The shorthand reporter shall be sworn to correctly report the proceedings of the grand jury described in ORS 132.260 and to keep secret any information concerning the grand jury proceedings.

      (c) The grand juror or shorthand reporter recording the proceedings is not subject to subpoena, and may not disclose any information, concerning the grand jury proceedings without prior court order.

      (3)(a) A failure of an audio electronic recording device to accurately record all or part of a grand jury proceeding does not affect the validity of any prosecution or indictment.

      (b) A failure of a grand juror to operate an audio electronic recording device in a manner that accurately records all or part of a grand jury proceeding, as required, does not affect the validity of any prosecution or indictment.

      (c) A failure of a shorthand reporter to prepare accurate notes or an accurate report of all or part of a grand jury proceeding, as required, does not affect the validity of any prosecution or indictment.

      (4) This section and ORS 132.260 do not apply to grand jury proceedings under ORS 132.440 that inquire into the condition and management of correctional facilities and youth correction facilities.

 

      132.260 Recording of testimony required; matters that may not be recorded. (1) Except as provided in subsection (2) of this section, the grand juror described in ORS 132.250 (2)(a), or the shorthand reporter described in ORS 132.250 (2)(b), who is recording grand jury proceedings in a judicial district with a population between 150,000 and 300,000 or over 700,000 shall record all testimony given before the grand jury, including:

      (a) The case name and number;

      (b) The name of each witness appearing before the grand jury; and

      (c) Each question asked of, and each response provided by, a witness appearing before the grand jury.

      (2) The grand juror operating the audio electronic recording device or the shorthand reporter may not record:

      (a) The deliberations or voting of the grand jury.

      (b) A presentment made pursuant to ORS 132.370.

      (c) Any statements made by a grand juror who is examined as a witness as provided in ORS 132.350.

      (d) A procedure related to the production of records, or the unsealing of records, subpoenaed pursuant to ORS 136.583 and to be presented before the grand jury.

      (3) The district attorney shall maintain the audio recordings, or report of the shorthand reporter, produced pursuant to this section and ORS 132.250. [2017 c.650 §2]

 

      Note: 132.260 becomes operative March 1, 2018. See section 18, chapter 650, Oregon Laws 2017.

 

      Note: The amendments to 132.260 by section 10, chapter 650, Oregon Laws 2017, become operative July 1, 2019. See section 18, chapter 650, Oregon Laws 2017. The text that is operative on and after July 1, 2019, is set forth for the user’s convenience.

      132.260. (1) Except as provided in subsection (2) of this section, the grand juror described in ORS 132.250 (2)(a), or the shorthand reporter described in ORS 132.250 (2)(b), who is recording grand jury proceedings shall record all testimony given before the grand jury, including:

      (a) The case name and number;

      (b) The name of each witness appearing before the grand jury; and

      (c) Each question asked of, and each response provided by, a witness appearing before the grand jury.

      (2) The grand juror operating the audio electronic recording device or the shorthand reporter may not record:

      (a) The deliberations or voting of the grand jury.

      (b) A presentment made pursuant to ORS 132.370.

      (c) Any statements made by a grand juror who is examined as a witness as provided in ORS 132.350.

      (d) A procedure related to the production of records, or the unsealing of records, subpoenaed pursuant to ORS 136.583 and to be presented before the grand jury.

      (3) The district attorney shall maintain the audio recordings, or report of the shorthand reporter, produced pursuant to this section and ORS 132.250.

 

      132.270 Release and use of recording, transcript, notes or report; protective orders. (1) Audio recordings and the notes or report of a shorthand reporter produced pursuant to ORS 132.250 and 132.260 in a judicial district with a population between 150,000 and 300,000 or over 700,000 are confidential and may not be released except as described in this section.

      (2) When an indictment resulting from grand jury proceedings is indorsed “a true bill,” the audio recording or the notes or report of a shorthand reporter of the grand jury proceedings may be released only in the following manner:

      (a) The prosecuting attorney may access a copy of the audio recording or the notes or report of a shorthand reporter at any time.

      (b) When the defendant has been arraigned on the indictment and is represented by an attorney, the district attorney shall:

      (A) Provide a copy to the defense attorney of all audio recordings, or the notes or report of a shorthand reporter, related to an indictment after 10 days have passed since the defendant’s arraignment on the indictment and no motion described in subsection (4) of this section has been filed; or

      (B) Provide a copy of the audio recordings, or the notes or report of a shorthand reporter, to the defense attorney in accordance with the court’s ruling on the motion described in subsection (4) of this section, if a motion has been filed.

      (c) Unless the court orders otherwise for good cause shown, the prosecuting attorney and the defense attorney may not copy, disseminate or republish the audio recording, the notes or report of a shorthand reporter, or a transcript prepared from the audio recording, notes or report, released pursuant to this subsection, except to provide a copy to an agent of the prosecuting attorney or defense attorney for the limited purpose of case preparation. Unless a court orders otherwise for good cause shown, in consulting with the defendant the defense attorney may not disclose to the defendant:

      (A) Any personal identifiers of a victim, witness or grand juror obtained from the audio recording, report, notes or transcript; or

      (B) Any portion of the audio recording, report, notes or transcript that contains any personal identifiers of a victim, witness or grand juror.

      (d) The defense attorney may not provide a copy of the audio recording, notes or report, or a transcript prepared from the audio recording, notes or report, to the defendant.

      (e) When the defendant has been arraigned but is not represented by an attorney, the defendant may request by motion that the court issue an order allowing the defendant access to review the contents of the audio recording or the notes or report of the shorthand reporter. A copy of the motion must be provided to the prosecuting attorney. The prosecuting attorney may request a hearing on the motion within 10 days after receiving a copy. At the hearing, or in response to receiving the motion, the court shall appoint counsel for the defendant for the limited purpose of reviewing the audio recording, notes or report and may set reasonable conditions on the review of the audio recording, notes or report.

      (3)(a) When a grand jury inquires into the conduct of a public servant as defined in ORS 162.005 for acts occurring in the performance of the public servant’s duties, and an indictment resulting from the grand jury proceedings is indorsed “not a true bill”:

      (A) The public servant or the prosecuting attorney may file a motion requesting a court order releasing all or a portion of a transcript of the grand jury proceedings. A copy of the motion must be served on the opposing party. In deciding whether to issue such an order, the court shall determine whether the public interest in disclosure outweighs the interest in maintaining the secrecy of the grand jury proceedings. If the court orders disclosure, the court may set reasonable conditions on copying, disseminating or republishing the transcript.

      (B) A member of the public may file a motion requesting a court order for production and release of a transcript of the grand jury proceedings. A copy of the motion must be served on the prosecuting attorney and the public servant’s attorney, or the public servant if the public servant is not represented by an attorney. The person filing the motion is responsible for the cost of producing the transcript and a court order for production and release of the transcript must be conditioned on receipt of payment. In deciding whether to issue such an order, the court shall determine whether the public interest in disclosure outweighs the interest in maintaining the secrecy of the grand jury proceedings. If the court orders disclosure, the court may set reasonable conditions on copying, disseminating or republishing the transcript.

      (b) The release of any transcript under this subsection may not include:

      (A) The release of any personal identifiers of a victim or witness; or

      (B) The release of the name or any personal identifiers of a grand juror.

      (4)(a) A motion for a protective order concerning an audio recording, the notes or report of a shorthand reporter or a transcript of grand jury proceedings may be filed as follows:

      (A) The prosecuting attorney may file a motion for a protective order within 10 days after the defendant’s arraignment on the indictment. The motion may be filed on behalf of a victim or a witness. The prosecuting attorney shall inform the victim of the ability to seek a protective order.

      (B) The prosecuting attorney may file a motion for a protective order within 10 days after receiving a motion described in subsection (2)(e) of this section.

      (C) The prosecuting attorney, the public servant who is the subject of an indictment indorsed “not a true bill” or the public servant’s attorney may file a motion for a protective order within 10 days of receiving a motion described in subsection (3)(a) of this section.

      (b) If the motion for a protective order requests that a portion of the audio recording, notes, report or transcript be redacted, the motion must be accompanied by a specific description, including the date and time, of the portion of the audio recording, notes, report or transcript to be redacted.

      (c) In response to a motion filed under this subsection, the court may order that the access of the person requesting release to a copy of the audio recording, notes, report or transcript be denied, restricted or deferred, or may make any other order, upon a finding of substantial and compelling circumstances. In deciding whether to grant the motion and enter a protective order under this paragraph, the court may consider the following:

      (A) Protection of witnesses and others from physical harm, threats of harm, bribes, economic interference, reprisal and other forms of intimidation;

      (B) Maintenance of secrecy regarding informants, as required for effective investigation of criminal activity;

      (C) Confidential information recognized under law, including the protection of confidential relationships and privileges and the contents of confidential records unrelated to a crime alleged in the indictment; and

      (D) Any other relevant considerations.

      (d) The court may permit the evidence of substantial and compelling circumstances described in paragraph (c) of this subsection to be made in the form of a written statement to be inspected by the court only or by oral testimony given on the record.

      (5)(a) Except as provided in paragraph (b) of this subsection, when grand jury proceedings do not result in an indictment indorsed as either “a true bill” or “not a true bill,” the audio recording or notes or report of the shorthand reporter produced pursuant to ORS 132.250 and 132.260 may not be disclosed or released.

      (b) When subsequent grand jury proceedings occur inquiring into the same criminal episode as the grand jury proceedings described in paragraph (a) of this subsection, and the subsequent proceedings result in an indictment indorsed as “a true bill,” the prosecuting attorney shall provide notice to the person charged in the indictment of the occurrence of the earlier grand jury proceedings. After the person is arraigned on the indictment and the time period described in subsection (2)(b) of this section has passed, the audio recording or the notes or report of the shorthand reporter produced during the earlier grand jury proceedings may be obtained in the manner set forth in subsection (2) of this section.

      (c) As used in this subsection, “criminal episode” has the meaning given that term in ORS 131.505.

      (6) The district attorney of each county may establish a fee for the cost of providing a copy of any audio recording, or the notes or report of a shorthand reporter, of a grand jury proceeding to a person requesting a copy under this section.

      (7) An audio recording, the notes or report of a shorthand reporter or a transcript of a grand jury proceeding obtained pursuant to this section and ORS 132.250 and 132.260:

      (a) May not be used as evidence in any subsequent proceeding, except as permitted under ORS 40.375, 40.380, 40.450, 40.460 or 40.465.

      (b) May not be used to challenge the indorsement of an indictment “a true bill” or the proceedings that led to the indorsement.

      (c) May be used as evidence in a prosecution for perjury or false swearing committed by a witness while giving testimony during the grand jury proceeding or during trial.

      (d) May be used as evidence in a proceeding for contempt of court against a person alleged to have violated the terms of a court order concerning the audio recording, notes, report or transcript.

      (e) May be submitted to the court and used as evidence for a hearing on a protective order described in subsection (4) of this section.

      (8) The release of audio recordings, shorthand reporter notes or reports or transcripts of grand jury proceedings under this section does not affect discovery obligations under ORS 135.805 to 135.873.

      (9) As used in this section:

      (a) “Personal identifiers” means:

      (A) In relation to a witness or a grand juror, the person’s address, telephone number, driver license, vehicle registration information, Social Security number, date of birth and the identifying number of the person’s depository account at a financial institution, as defined in ORS 706.008, or credit card account.

      (B) In relation to a victim, the victim’s address, electronic mail address, telephone number, driver license, vehicle registration information, Social Security number, date of birth, any user names or other identifying information associated with the victim’s social media accounts and the identifying number of the victim’s depository account at a financial institution, as defined in ORS 706.008, or credit card account.

      (b) “Social media” has the meaning given that term in ORS 659A.330. [2017 c.650 §3]

 

      Note: 132.270 becomes operative March 1, 2018. See section 18, chapter 650, Oregon Laws 2017.

 

      Note: The amendments to 132.270 by section 11, chapter 650, Oregon Laws 2017, become operative July 1, 2019. See section 18, chapter 650, Oregon Laws 2017. The text that is operative on and after July 1, 2019, is set forth for the user’s convenience.

      132.270. (1) Audio recordings and the notes or report of a shorthand reporter produced pursuant to ORS 132.250 and 132.260 are confidential and may not be released except as described in this section.

      (2) When an indictment resulting from grand jury proceedings is indorsed “a true bill,” the audio recording or the notes or report of a shorthand reporter of the grand jury proceedings may be released only in the following manner:

      (a) The prosecuting attorney may access a copy of the audio recording or the notes or report of a shorthand reporter at any time.

      (b) When the defendant has been arraigned on the indictment and is represented by an attorney, the district attorney shall:

      (A) Provide a copy to the defense attorney of all audio recordings, or the notes or report of a shorthand reporter, related to an indictment after 10 days have passed since the defendant’s arraignment on the indictment and no motion described in subsection (4) of this section has been filed; or

      (B) Provide a copy of the audio recordings, or the notes or report of a shorthand reporter, to the defense attorney in accordance with the court’s ruling on the motion described in subsection (4) of this section, if a motion has been filed.

      (c) Unless the court orders otherwise for good cause shown, the prosecuting attorney and the defense attorney may not copy, disseminate or republish the audio recording, the notes or report of a shorthand reporter, or a transcript prepared from the audio recording, notes or report, released pursuant to this subsection, except to provide a copy to an agent of the prosecuting attorney or defense attorney for the limited purpose of case preparation. Unless a court orders otherwise for good cause shown, in consulting with the defendant the defense attorney may not disclose to the defendant:

      (A) Any personal identifiers of a victim, witness or grand juror obtained from the audio recording, report, notes or transcript; or

      (B) Any portion of the audio recording, report, notes or transcript that contains any personal identifiers of a victim, witness or grand juror.

      (d) The defense attorney may not provide a copy of the audio recording, notes or report, or a transcript prepared from the audio recording, notes or report, to the defendant.

      (e) When the defendant has been arraigned but is not represented by an attorney, the defendant may request by motion that the court issue an order allowing the defendant access to review the contents of the audio recording or the notes or report of the shorthand reporter. A copy of the motion must be provided to the prosecuting attorney. The prosecuting attorney may request a hearing on the motion within 10 days after receiving a copy. At the hearing, or in response to receiving the motion, the court shall appoint counsel for the defendant for the limited purpose of reviewing the audio recording, notes or report and may set reasonable conditions on the review of the audio recording, notes or report.

      (3)(a) When a grand jury inquires into the conduct of a public servant as defined in ORS 162.005 for acts occurring in the performance of the public servant’s duties, and an indictment resulting from the grand jury proceedings is indorsed “not a true bill”:

      (A) The public servant or the prosecuting attorney may file a motion requesting a court order releasing all or a portion of a transcript of the grand jury proceedings. A copy of the motion must be served on the opposing party. In deciding whether to issue such an order, the court shall determine whether the public interest in disclosure outweighs the interest in maintaining the secrecy of the grand jury proceedings. If the court orders disclosure, the court may set reasonable conditions on copying, disseminating or republishing the transcript.

      (B) A member of the public may file a motion requesting a court order for production and release of a transcript of the grand jury proceedings. A copy of the motion must be served on the prosecuting attorney and the public servant’s attorney, or the public servant if the public servant is not represented by an attorney. The person filing the motion is responsible for the cost of producing the transcript and a court order for production and release of the transcript must be conditioned on receipt of payment. In deciding whether to issue such an order, the court shall determine whether the public interest in disclosure outweighs the interest in maintaining the secrecy of the grand jury proceedings. If the court orders disclosure, the court may set reasonable conditions on copying, disseminating or republishing the transcript.

      (b) The release of any transcript under this subsection may not include:

      (A) The release of any personal identifiers of a victim or witness; or

      (B) The release of the name or any personal identifiers of a grand juror.

      (4)(a) A motion for a protective order concerning an audio recording, the notes or report of a shorthand reporter or a transcript of grand jury proceedings may be filed as follows:

      (A) The prosecuting attorney may file a motion for a protective order within 10 days after the defendant’s arraignment on the indictment. The motion may be filed on behalf of a victim or a witness. The prosecuting attorney shall inform the victim of the ability to seek a protective order.

      (B) The prosecuting attorney may file a motion for a protective order within 10 days after receiving a motion described in subsection (2)(e) of this section.

      (C) The prosecuting attorney, the public servant who is the subject of an indictment indorsed “not a true bill” or the public servant’s attorney may file a motion for a protective order within 10 days of receiving a motion described in subsection (3)(a) of this section.

      (b) If the motion for a protective order requests that a portion of the audio recording, notes, report or transcript be redacted, the motion must be accompanied by a specific description, including the date and time, of the portion of the audio recording, notes, report or transcript to be redacted.

      (c) In response to a motion filed under this subsection, the court may order that the access of the person requesting release to a copy of the audio recording, notes, report or transcript be denied, restricted or deferred, or may make any other order, upon a finding of substantial and compelling circumstances. In deciding whether to grant the motion and enter a protective order under this paragraph, the court may consider the following:

      (A) Protection of witnesses and others from physical harm, threats of harm, bribes, economic interference, reprisal and other forms of intimidation;

      (B) Maintenance of secrecy regarding informants, as required for effective investigation of criminal activity;

      (C) Confidential information recognized under law, including the protection of confidential relationships and privileges and the contents of confidential records unrelated to a crime alleged in the indictment; and

      (D) Any other relevant considerations.

      (d) The court may permit the evidence of substantial and compelling circumstances described in paragraph (c) of this subsection to be made in the form of a written statement to be inspected by the court only or by oral testimony given on the record.

      (5)(a) Except as provided in paragraph (b) of this subsection, when grand jury proceedings do not result in an indictment indorsed as either “a true bill” or “not a true bill,” the audio recording or notes or report of the shorthand reporter produced pursuant to ORS 132.250 and 132.260 may not be disclosed or released.

      (b) When subsequent grand jury proceedings occur inquiring into the same criminal episode as the grand jury proceedings described in paragraph (a) of this subsection, and the subsequent proceedings result in an indictment indorsed as “a true bill,” the prosecuting attorney shall provide notice to the person charged in the indictment of the occurrence of the earlier grand jury proceedings. After the person is arraigned on the indictment and the time period described in subsection (2)(b) of this section has passed, the audio recording or the notes or report of the shorthand reporter produced during the earlier grand jury proceedings may be obtained in the manner set forth in subsection (2) of this section.

      (c) As used in this subsection, “criminal episode” has the meaning given that term in ORS 131.505.

      (6) The district attorney of each county may establish a fee for the cost of providing a copy of any audio recording, or the notes or report of a shorthand reporter, of a grand jury proceeding to a person requesting a copy under this section.

      (7) An audio recording, the notes or report of a shorthand reporter or a transcript of a grand jury proceeding obtained pursuant to this section and ORS 132.250 and 132.260:

      (a) May not be used as evidence in any subsequent proceeding, except as permitted under ORS 40.375, 40.380, 40.450, 40.460 or 40.465.

      (b) May not be used to challenge the indorsement of an indictment “a true bill” or the proceedings that led to the indorsement.

      (c) May be used as evidence in a prosecution for perjury or false swearing committed by a witness while giving testimony during the grand jury proceeding or during trial.

      (d) May be used as evidence in a proceeding for contempt of court against a person alleged to have violated the terms of a court order concerning the audio recording, notes, report or transcript.

      (e) May be submitted to the court and used as evidence for a hearing on a protective order described in subsection (4) of this section.

      (8) The release of audio recordings, shorthand reporter notes or reports or transcripts of grand jury proceedings under this section does not affect discovery obligations under ORS 135.805 to 135.873.

      (9) As used in this section:

      (a) “Personal identifiers” means:

      (A) In relation to a witness or a grand juror, the person’s address, telephone number, driver license, vehicle registration information, Social Security number, date of birth and the identifying number of the person’s depository account at a financial institution, as defined in ORS 706.008, or credit card account.

      (B) In relation to a victim, the victim’s address, electronic mail address, telephone number, driver license, vehicle registration information, Social Security number, date of birth, any user names or other identifying information associated with the victim’s social media accounts and the identifying number of the victim’s depository account at a financial institution, as defined in ORS 706.008, or credit card account.

      (b) “Social media” has the meaning given that term in ORS 659A.330.

 

      Note: Section 15, chapter 650, Oregon Laws 2017, provides:

      Sec. 15. The Public Defense Services Commission, the Judicial Department and each county that begins recording grand jury proceedings under sections 1 [132.250] and 2 [132.260] of this 2017 Act on March 1, 2018, shall:

      (1) Provide a preliminary report on the implementation of the recording requirement to the Emergency Board and the interim committees of the Legislative Assembly related to the judiciary, in the manner provided in ORS 192.245, no later than December 1, 2018.

      (2) Provide a final report on the implementation of the recording requirement to the Joint Committee on Ways and Means and the committees of the Legislative Assembly related to the judiciary, in the manner provided in ORS 192.245, no later than February 1, 2019. [2017 c.650 §15]

 

(Indictment Procedures)

 

      132.310 Inquiry into crimes; presentation to court. The grand jury shall retire into a private room and may inquire into crimes committed or triable in the county and present them to the court, either by presentment or indictment, as provided in ORS 132.310 to 132.390. [Amended by 1973 c.836 §45]

 

      132.320 Consideration of evidence; appearance by defendant. (1) Except as provided in subsections (2) to (13) of this section, in the investigation of a charge for the purpose of indictment, the grand jury shall receive no other evidence than such as might be given on the trial of the person charged with the crime in question.

      (2) A report or a copy of a report made by a physicist, chemist, medical examiner, physician, firearms identification expert, examiner of questioned documents, fingerprint technician, or an expert or technician in some comparable scientific or professional field, concerning the results of an examination, comparison or test performed by such person in connection with a case which is the subject of a grand jury proceeding, shall, when certified by such person as a report made by such person or as a true copy thereof, be received in evidence in the grand jury proceeding.

      (3) An affidavit of a witness who is unable to appear before the grand jury shall be received in evidence in the grand jury proceeding if, upon application by the district attorney, the presiding judge for the judicial district in which the grand jury is sitting authorizes the receipt after good cause has been shown for the witness’ inability to appear. An affidavit taken in another state or territory of the United States, the District of Columbia or in a foreign country must be authenticated as provided in ORS chapter 194 before it can be used in this state.

      (4) A grand jury that is investigating a charge of criminal driving while suspended or revoked under ORS 811.182 may receive in evidence an affidavit of a peace officer with a report or copy of a report of the peace officer concerning the peace officer’s investigation of the violation of ORS 811.182 by the defendant.

      (5) A grand jury may receive testimony of a witness by means of simultaneous television transmission allowing the grand jury and district attorney to observe and communicate with the witness and the witness to observe and communicate with the grand jury and the district attorney.

      (6) A grand jury that is investigating a charge of failure to appear under ORS 133.076, 153.992, 162.195 or 162.205 may receive in evidence an affidavit of a court employee certifying that the defendant failed to appear as required by law and setting forth facts sufficient to support that conclusion.

      (7)(a) Except as otherwise provided in this subsection, a grand jury may receive in evidence through the testimony of one peace officer involved in the criminal investigation under grand jury inquiry information from an official report of another peace officer involved in the same criminal investigation concerning the other peace officer’s investigation of the matter before the grand jury. The statement of a person suspected of committing an offense or inadmissible hearsay of persons other than the peace officer who compiled the official report may not be presented to a grand jury under this paragraph.

      (b) If the official report contains evidence other than chain of custody, venue or the name of the person suspected of committing an offense, the grand jurors must be notified that the evidence is being submitted by report and that the peace officer who compiled the report will be made available for testimony at the request of the grand jury. When a grand jury requests the testimony of a peace officer under this paragraph, the peace officer may present sworn testimony by telephone if requiring the peace officer’s presence before the grand jury would constitute an undue hardship on the peace officer or the agency that employs or utilizes the peace officer.

      (8) A grand jury that is investigating a charge of failure to report as a sex offender under ORS 163A.040 may receive in evidence certified copies of the form required by ORS 163A.050 (2) and sex offender registration forms and an affidavit of a representative of the Oregon State Police, as keepers of the state’s sex offender registration records, certifying that the certified copies of the forms constitute the complete record for the defendant.

      (9) The grand jury shall weigh all the evidence submitted to it; and when it believes that other evidence within its reach will explain away the charge, it should order such evidence to be produced, and for that purpose may require the district attorney to issue process for the witnesses.

      (10) A grand jury that is investigating a charge of driving while under the influence of intoxicants in violation of ORS 813.010 may receive in evidence an affidavit of a peace officer regarding any or all of the following:

      (a) Whether the defendant was driving.

      (b) Whether the defendant took or refused to take tests under any provision of ORS chapter 813.

      (c) The administration of tests under any provision of ORS chapter 813 and the results of such tests.

      (d) The officer’s observations of physical or mental impairment of the defendant.

      (11)(a) A grand jury may receive in evidence an affidavit of a representative of a financial institution for the purpose of authenticating records of the financial institution.

      (b) As used in this subsection, “financial institution” means a financial institution as defined in ORS 706.008, an entity that regularly issues, processes or services credit cards or any other comparable entity that regularly produces financial records.

      (12)(a) A defendant who has been arraigned on an information alleging a felony charge that is the subject of a grand jury proceeding and who is represented by an attorney has a right to appear before the grand jury as a witness if, prior to the filing of an indictment, the defense attorney serves upon the district attorney written notice requesting the appearance. The notice shall include an electronic mail address at which the defense attorney may be contacted.

      (b) A district attorney is not obligated to inform a defendant that a grand jury proceeding investigating charges against the defendant is pending, in progress or about to occur.

      (c) Upon receipt of the written notice described in paragraph (a) of this subsection, the district attorney shall provide in writing the date, time and location of the defendant’s appearance before the grand jury to the defense attorney at the indicated electronic mail address. In the event of a scheduling conflict, the district attorney shall reasonably accommodate the schedules of the defendant and the defense attorney if the accommodation does not delay the grand jury proceeding beyond the time limit for holding a preliminary hearing described in ORS 135.070 (2).

      (d) Notwithstanding ORS 135.070 and paragraph (c) of this subsection, in order to accommodate a scheduling conflict, upon the request of the defendant the time limit for holding a preliminary hearing described in ORS 135.070 (2) may be extended by a maximum of an additional five judicial days and the district attorney and the defendant may stipulate to an extension of greater duration. During a period of delay caused by a scheduling conflict under this subsection, ORS 135.230 to 135.290 shall continue to apply concerning the custody status of the defendant.

      (13) A grand jury in a judicial district with a population between 150,000 and 300,000 or over 700,000, the proceedings of which are recorded pursuant to ORS 132.250 and 132.260, may receive in evidence, through the testimony of a peace officer involved in the criminal investigation under grand jury inquiry, the statement of:

      (a) A person who cannot readily understand the proceedings, or who cannot communicate in the proceedings, because of a physical disability or developmental disability; or

      (b) A victim under 18 years of age at the time of the proceedings. [Amended by 1973 c.836 §46; 1975 c.576 §1; 1983 c.393 §25; 1995 c.126 §1; 1995 c.781 §38; 1997 c.249 §43; 1999 c.1049 §6; 2001 c.19 §1; 2003 c.645 §3; 2005 c.529 §1; 2009 c.361 §1; 2013 c.219 §55; 2015 c.586 §1; 2017 c.650 §5]

 

Note 1: The amendments to 132.320 by section 5, chapter 650, Oregon Laws 2017, become operative March 1, 2018. See section 18, chapter 650, Oregon Laws 2017. The text that is operative until March 1, 2018, is set forth for the user’s convenience.

      132.320. (1) Except as provided in subsections (2) to (12) of this section, in the investigation of a charge for the purpose of indictment, the grand jury shall receive no other evidence than such as might be given on the trial of the person charged with the crime in question.

      (2) A report or a copy of a report made by a physicist, chemist, medical examiner, physician, firearms identification expert, examiner of questioned documents, fingerprint technician, or an expert or technician in some comparable scientific or professional field, concerning the results of an examination, comparison or test performed by such person in connection with a case which is the subject of a grand jury proceeding, shall, when certified by such person as a report made by such person or as a true copy thereof, be received in evidence in the grand jury proceeding.

      (3) An affidavit of a witness who is unable to appear before the grand jury shall be received in evidence in the grand jury proceeding if, upon application by the district attorney, the presiding judge for the judicial district in which the grand jury is sitting authorizes the receipt after good cause has been shown for the witness’ inability to appear. An affidavit taken in another state or territory of the United States, the District of Columbia or in a foreign country must be authenticated as provided in ORS chapter 194 before it can be used in this state.

      (4) A grand jury that is investigating a charge of criminal driving while suspended or revoked under ORS 811.182 may receive in evidence an affidavit of a peace officer with a report or copy of a report of the peace officer concerning the peace officer’s investigation of the violation of ORS 811.182 by the defendant.

      (5) A grand jury may receive testimony of a witness by means of simultaneous television transmission allowing the grand jury and district attorney to observe and communicate with the witness and the witness to observe and communicate with the grand jury and the district attorney.

      (6) A grand jury that is investigating a charge of failure to appear under ORS 133.076, 153.992, 162.195 or 162.205 may receive in evidence an affidavit of a court employee certifying that the defendant failed to appear as required by law and setting forth facts sufficient to support that conclusion.

      (7)(a) Except as otherwise provided in this subsection, a grand jury may receive in evidence through the testimony of one peace officer involved in the criminal investigation under grand jury inquiry information from an official report of another peace officer involved in the same criminal investigation concerning the other peace officer’s investigation of the matter before the grand jury. The statement of a person suspected of committing an offense or inadmissible hearsay of persons other than the peace officer who compiled the official report may not be presented to a grand jury under this paragraph.

      (b) If the official report contains evidence other than chain of custody, venue or the name of the person suspected of committing an offense, the grand jurors must be notified that the evidence is being submitted by report and that the peace officer who compiled the report will be made available for testimony at the request of the grand jury. When a grand jury requests the testimony of a peace officer under this paragraph, the peace officer may present sworn testimony by telephone if requiring the peace officer’s presence before the grand jury would constitute an undue hardship on the peace officer or the agency that employs or utilizes the peace officer.

      (8) A grand jury that is investigating a charge of failure to report as a sex offender under ORS 163A.040 may receive in evidence certified copies of the form required by ORS 163A.050 (2) and sex offender registration forms and an affidavit of a representative of the Oregon State Police, as keepers of the state’s sex offender registration records, certifying that the certified copies of the forms constitute the complete record for the defendant.

      (9) The grand jury shall weigh all the evidence submitted to it; and when it believes that other evidence within its reach will explain away the charge, it should order such evidence to be produced, and for that purpose may require the district attorney to issue process for the witnesses.

      (10) A grand jury that is investigating a charge of driving while under the influence of intoxicants in violation of ORS 813.010 may receive in evidence an affidavit of a peace officer regarding any or all of the following:

      (a) Whether the defendant was driving.

      (b) Whether the defendant took or refused to take tests under any provision of ORS chapter 813.

      (c) The administration of tests under any provision of ORS chapter 813 and the results of such tests.

      (d) The officer’s observations of physical or mental impairment of the defendant.

      (11)(a) A grand jury may receive in evidence an affidavit of a representative of a financial institution for the purpose of authenticating records of the financial institution.

      (b) As used in this subsection, “financial institution” means a financial institution as defined in ORS 706.008, an entity that regularly issues, processes or services credit cards or any other comparable entity that regularly produces financial records.

      (12)(a) A defendant who has been arraigned on an information alleging a felony charge that is the subject of a grand jury proceeding and who is represented by an attorney has a right to appear before the grand jury as a witness if, prior to the filing of an indictment, the defense attorney serves upon the district attorney written notice requesting the appearance. The notice shall include an electronic mail address at which the defense attorney may be contacted.

      (b) A district attorney is not obligated to inform a defendant that a grand jury proceeding investigating charges against the defendant is pending, in progress or about to occur.

      (c) Upon receipt of the written notice described in paragraph (a) of this subsection, the district attorney shall provide in writing the date, time and location of the defendant’s appearance before the grand jury to the defense attorney at the indicated electronic mail address. In the event of a scheduling conflict, the district attorney shall reasonably accommodate the schedules of the defendant and the defense attorney if the accommodation does not delay the grand jury proceeding beyond the time limit for holding a preliminary hearing described in ORS 135.070 (2).

      (d) Notwithstanding ORS 135.070 and paragraph (c) of this subsection, in order to accommodate a scheduling conflict, upon the request of the defendant the time limit for holding a preliminary hearing described in ORS 135.070 (2) may be extended by a maximum of an additional five judicial days and the district attorney and the defendant may stipulate to an extension of greater duration. During a period of delay caused by a scheduling conflict under this subsection, ORS 135.230 to 135.290 shall continue to apply concerning the custody status of the defendant.

 

Note 2: The amendments to 132.320 by section 13, chapter 650, Oregon Laws 2017, become operative July 1, 2019. See section 18, chapter 650, Oregon Laws 2017. The text that is operative on and after July 1, 2019, is set forth for the user’s convenience.

      132.320. (1) Except as provided in subsections (2) to (13) of this section, in the investigation of a charge for the purpose of indictment, the grand jury shall receive no other evidence than such as might be given on the trial of the person charged with the crime in question.

      (2) A report or a copy of a report made by a physicist, chemist, medical examiner, physician, firearms identification expert, examiner of questioned documents, fingerprint technician, or an expert or technician in some comparable scientific or professional field, concerning the results of an examination, comparison or test performed by such person in connection with a case which is the subject of a grand jury proceeding, shall, when certified by such person as a report made by such person or as a true copy thereof, be received in evidence in the grand jury proceeding.

      (3) An affidavit of a witness who is unable to appear before the grand jury shall be received in evidence in the grand jury proceeding if, upon application by the district attorney, the presiding judge for the judicial district in which the grand jury is sitting authorizes the receipt after good cause has been shown for the witness’ inability to appear. An affidavit taken in another state or territory of the United States, the District of Columbia or in a foreign country must be authenticated as provided in ORS chapter 194 before it can be used in this state.

      (4) A grand jury that is investigating a charge of criminal driving while suspended or revoked under ORS 811.182 may receive in evidence an affidavit of a peace officer with a report or copy of a report of the peace officer concerning the peace officer’s investigation of the violation of ORS 811.182 by the defendant.

      (5) A grand jury may receive testimony of a witness by means of simultaneous television transmission allowing the grand jury and district attorney to observe and communicate with the witness and the witness to observe and communicate with the grand jury and the district attorney.

      (6) A grand jury that is investigating a charge of failure to appear under ORS 133.076, 153.992, 162.195 or 162.205 may receive in evidence an affidavit of a court employee certifying that the defendant failed to appear as required by law and setting forth facts sufficient to support that conclusion.

      (7)(a) Except as otherwise provided in this subsection, a grand jury may receive in evidence through the testimony of one peace officer involved in the criminal investigation under grand jury inquiry information from an official report of another peace officer involved in the same criminal investigation concerning the other peace officer’s investigation of the matter before the grand jury. The statement of a person suspected of committing an offense or inadmissible hearsay of persons other than the peace officer who compiled the official report may not be presented to a grand jury under this paragraph.

      (b) If the official report contains evidence other than chain of custody, venue or the name of the person suspected of committing an offense, the grand jurors must be notified that the evidence is being submitted by report and that the peace officer who compiled the report will be made available for testimony at the request of the grand jury. When a grand jury requests the testimony of a peace officer under this paragraph, the peace officer may present sworn testimony by telephone if requiring the peace officer’s presence before the grand jury would constitute an undue hardship on the peace officer or the agency that employs or utilizes the peace officer.

      (8) A grand jury that is investigating a charge of failure to report as a sex offender under ORS 163A.040 may receive in evidence certified copies of the form required by ORS 163A.050 (2) and sex offender registration forms and an affidavit of a representative of the Oregon State Police, as keepers of the state’s sex offender registration records, certifying that the certified copies of the forms constitute the complete record for the defendant.

      (9) The grand jury shall weigh all the evidence submitted to it; and when it believes that other evidence within its reach will explain away the charge, it should order such evidence to be produced, and for that purpose may require the district attorney to issue process for the witnesses.

      (10) A grand jury that is investigating a charge of driving while under the influence of intoxicants in violation of ORS 813.010 may receive in evidence an affidavit of a peace officer regarding any or all of the following:

      (a) Whether the defendant was driving.

      (b) Whether the defendant took or refused to take tests under any provision of ORS chapter 813.

      (c) The administration of tests under any provision of ORS chapter 813 and the results of such tests.

      (d) The officer’s observations of physical or mental impairment of the defendant.

      (11)(a) A grand jury may receive in evidence an affidavit of a representative of a financial institution for the purpose of authenticating records of the financial institution.

      (b) As used in this subsection, “financial institution” means a financial institution as defined in ORS 706.008, an entity that regularly issues, processes or services credit cards or any other comparable entity that regularly produces financial records.

      (12)(a) A defendant who has been arraigned on an information alleging a felony charge that is the subject of a grand jury proceeding and who is represented by an attorney has a right to appear before the grand jury as a witness if, prior to the filing of an indictment, the defense attorney serves upon the district attorney written notice requesting the appearance. The notice shall include an electronic mail address at which the defense attorney may be contacted.

      (b) A district attorney is not obligated to inform a defendant that a grand jury proceeding investigating charges against the defendant is pending, in progress or about to occur.

      (c) Upon receipt of the written notice described in paragraph (a) of this subsection, the district attorney shall provide in writing the date, time and location of the defendant’s appearance before the grand jury to the defense attorney at the indicated electronic mail address. In the event of a scheduling conflict, the district attorney shall reasonably accommodate the schedules of the defendant and the defense attorney if the accommodation does not delay the grand jury proceeding beyond the time limit for holding a preliminary hearing described in ORS 135.070 (2).

      (d) Notwithstanding ORS 135.070 and paragraph (c) of this subsection, in order to accommodate a scheduling conflict, upon the request of the defendant the time limit for holding a preliminary hearing described in ORS 135.070 (2) may be extended by a maximum of an additional five judicial days and the district attorney and the defendant may stipulate to an extension of greater duration. During a period of delay caused by a scheduling conflict under this subsection, ORS 135.230 to 135.290 shall continue to apply concerning the custody status of the defendant.

      (13) A grand jury, the proceedings of which are recorded pursuant to ORS 132.250 and 132.260, may receive in evidence, through the testimony of a peace officer involved in the criminal investigation under grand jury inquiry, the statement of:

      (a) A person who cannot readily understand the proceedings, or who cannot communicate in the proceedings, because of a physical disability or developmental disability; or

      (b) A victim under 18 years of age at the time of the proceedings.

 

      132.330 Submission of indictment by district attorney. The district attorney may submit an indictment to the grand jury in any case when the district attorney has good reason to believe that a crime has been committed which is triable within the county. [Amended by 1973 c.836 §47]

 

      132.340 Duties of district attorney for jury. The district attorney, when required by the grand jury, must prepare indictments or presentments for it and attend its sittings to advise it in relation to its duties or to examine witnesses in its presence.

 

      132.350 Juror’s knowledge of an offense; action thereon. (1) If a grand juror knows or has reason to believe that a crime which is triable in the county has been committed, the grand juror shall disclose the same to the fellow jurors, who may thereupon investigate the same.

      (2) An indictment or presentment must not be found upon the statement of a grand juror unless the grand juror is sworn and examined as a witness.

      (3) A grand juror testifying as provided in subsection (2) of this section shall not vote on the indictment nor be present during deliberations thereon. [Amended by 1973 c.836 §48]

 

      132.360 Number of jurors required to concur. A grand jury may indict or present facts to the court for instruction as provided in ORS 132.370, with the concurrence of five of its members, if at least five jurors voting for indictment or presentment heard all the testimony relating to the person indicted or facts presented. [Amended by 1973 c.836 §49]

 

      132.370 Presentment of facts to court for instruction as to law. (1) When the grand jury is in doubt whether the facts, as shown by the evidence before it, constitute a crime in law or whether the same has ceased to be punishable by reason of lapse of time or a former acquittal or conviction, it may make a presentment of the facts to the court, without mentioning the names of individuals, and ask the court for instructions concerning the law arising thereon.

      (2) A presentment cannot be found and made to the court except as provided in subsection (1) of this section, and, when so found and presented, the court shall give such instructions to the grand jury concerning the law of the case as it thinks proper and necessary.

      (3) A presentment is made to the court by the foreman in the presence of the grand jury. But being a mere formal statement of facts for the purpose of obtaining the advice of the court as to the law arising thereon, it is not to be filed in court or preserved beyond the sitting of the grand jury.

 

      132.380 Whom the grand jury may indict. The grand jury may indict a person for a crime when it believes the person guilty thereof, whether such person has been held to answer for such crime or not. [Amended by 1973 c.836 §50]

 

      132.390 When the grand jury may indict. The grand jury may find an indictment when all the evidence before it, taken together, is such as in its judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury. [Amended by 1973 c.836 §51]

 

      132.400 Indorsement of indictment as “a true bill.” An indictment, when found, shall be indorsed “a true bill,” and such indorsement signed by the foreman of the jury.

 

      132.410 Finding of indictment; filing; inspection. An indictment, when found and indorsed, as provided in ORS 132.400 and 132.580, shall be filed with the clerk of the court, in whose office it shall remain as a public record. Upon being designated by the district attorney as confidential and until after the arrest of a defendant who has not been held to answer the charge, the indictment or any order or process in relation thereto shall not be inspected by any person other than the judge, the clerk of the court, the district attorney or a peace officer in the discharge of a duty concerning the indictment, order or process. [Amended by 1973 c.836 §52; 1999 c.967 §2]

 

      132.420 Disclosure relative to indictment not subject to inspection. No grand juror, reporter or other person except the district attorney or a peace officer in the exercise of duties in effecting an arrest shall disclose any fact concerning any indictment while it is not subject to public inspection. [Amended by 1973 c.836 §53]

 

      132.430 Finding against indictment; indorsement “not a true bill.” (1) When a person has been held to answer a criminal charge and the indictment in relation thereto is not found “a true bill,” it must be indorsed “not a true bill,” which indorsement must be signed by the foreman and filed with the clerk of the court, in whose office it shall remain a public record. In the case of an indictment not found “a true bill” against a person not so held, the same, together with the minutes of the evidence in relation thereto, must be destroyed by the grand jury.

      (2) When an indictment indorsed “not a true bill” has been filed with the clerk of the court, the effect thereof is to dismiss the charge; and the same cannot be again submitted to or inquired of by the grand jury unless the court so orders. [Amended by 1973 c.836 §54]

 

      Note: The amendments to 132.430 by section 6, chapter 650, Oregon Laws 2017, become operative July 1, 2019. See section 18, chapter 650, Oregon Laws 2017. The text that is operative on and after July 1, 2019, is set forth for the user’s convenience.

      132.430. (1) When a person has been held to answer a criminal charge and the indictment in relation thereto is not found “a true bill,” the indictment must be indorsed “not a true bill,” which indorsement must be signed by the foreman and filed with the clerk of the court, in whose office it shall remain a public record. In the case of an indictment not found “a true bill” against a person who has not been held to answer a criminal charge, the indictment must be destroyed by the grand jury.

      (2) When an indictment indorsed “not a true bill” has been filed with the clerk of the court, the effect is to dismiss the charge, and the charge cannot be again submitted to or inquired of by the grand jury unless the court so orders.

 

(Other Inquiries)

 

      132.440 Inquiry into conditions in correctional and youth correction facilities. (1) At least once yearly, a grand jury shall inquire into the condition and management of every correctional facility and youth correction facility as defined in ORS 162.135 in the county.

      (2) The grand jury is entitled to free access at all reasonable times to such correctional facilities and juvenile facilities, and, without charge, to all public records in the county pertaining thereto.

      (3) Other than indictments presented under ORS 132.310 or presentments presented under ORS 132.370, the grand jury shall issue no report other than a report of an inquiry made under this section. [Amended by 1973 c.836 §55; 1985 c.565 §11; 1997 c.249 §44]

 

SUFFICIENCY OF INDICTMENT

 

      132.510 Forms of pleadings. The forms of pleading, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by the statutes relating to criminal procedure. [Amended by 1973 c.836 §56]

 

      132.520 [Repealed by 1973 c.836 §358]

 

      132.530 [Repealed by 1973 c.836 §358]

 

      132.540 Sufficiency of indictment; previous convictions; use of statutory language. (1) The indictment is sufficient if it can be understood therefrom that:

      (a) The defendant is named, or if the name of the defendant cannot be discovered, that the defendant is described by a fictitious name, with the statement that the real name of the defendant is to the jury unknown.

      (b) The crime was committed within the jurisdiction of the court, except where, as provided by law, the act, though done without the county in which the court is held, is triable therein.

      (c) The crime was committed at some time prior to the finding of the indictment and within the time limited by law for the commencement of an action therefor.

      (2) Except as provided in ORS 136.765 (1) and subsection (3) of this section, the indictment may not contain allegations that the defendant has previously been convicted of the violation of any statute that may subject the defendant to enhanced penalties.

      (3) The indictment must allege that the defendant has previously been convicted of an offense when the previous conviction constitutes a material element of the charged offense.

      (4) Words used in a statute to define a crime need not be strictly pursued in the indictment, but other words conveying the same meaning may be used. [Amended by 1957 c.657 §1; 1973 c.836 §57; 2009 c.180 §1]

 

      132.550 Contents of indictment. The indictment shall contain substantially the following:

      (1) The name of the circuit court in which it is filed;

      (2) The title of the action;

      (3) A statement that the grand jury accuses the defendant or defendants of the designated offense or offenses;

      (4) A separate accusation or count addressed to each offense charged, if there be more than one;

      (5) A statement in each count that the offense charged therein was committed in a designated county;

      (6) A statement in each count that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time;

      (7) A statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended;

      (8) The dates of all grand jury proceedings related to the offense or offenses charged;

      (9) The signatures of the foreman and of the district attorney; and

      (10) The date the indictment is filed with the clerk of the court. [Amended by 1973 c.836 §58; 2007 c.71 §32; 2017 c.650 §7]

 

      Note: The amendments to 132.550 by section 7, chapter 650, Oregon Laws 2017, become operative March 1, 2018. See section 18, chapter 650, Oregon Laws 2017. The text that is operative until March 1, 2018, is set forth for the user’s convenience.

      132.550. The indictment shall contain substantially the following:

      (1) The name of the circuit court in which it is filed;

      (2) The title of the action;

      (3) A statement that the grand jury accuses the defendant or defendants of the designated offense or offenses;

      (4) A separate accusation or count addressed to each offense charged, if there be more than one;

      (5) A statement in each count that the offense charged therein was committed in a designated county;

      (6) A statement in each count that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time;

      (7) A statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended;

      (8) The signatures of the foreman and of the district attorney; and

      (9) The date the indictment is filed with the clerk of the court.

 

      132.557 Indictment must contain subcategory facts under certain circumstances. (1) When a person is charged with a crime committed on or after November 1, 1989, that includes subcategories under the rules of the Oregon Criminal Justice Commission, the state is required to plead specially in the indictment, in addition to the elements of the crime, any subcategory fact on which the state intends to rely to enhance the crime for sentencing purposes. The state shall plead the elements and subcategory facts in a single count. Nothing in this subsection precludes the pleading of alternative theories.

      (2) The state must prove each subcategory fact beyond a reasonable doubt and the jury shall return a special verdict of “yes” or “no” on each subcategory fact submitted. [1995 c.520 §6]

 

      Note: 132.557 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 132 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      132.560 Joinder of counts and charges; consolidation of charging instruments. (1) A charging instrument must charge but one offense, and in one form only, except that:

      (a) Where the offense may be committed by the use of different means, the charging instrument may allege the means in the alternative.

      (b) Two or more offenses may be charged in the same charging instrument in a separate count for each offense if the offenses charged are alleged to have been committed by the same person or persons and are:

      (A) Of the same or similar character;

      (B) Based on the same act or transaction; or

      (C) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

      (2) If two or more charging instruments are found in circumstances described in subsection (1)(b) of this section, the court may order them to be consolidated.

      (3) If it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses under subsection (1) or (2) of this section, the court may order an election or separate trials of counts or provide whatever other relief justice requires.

      (4) As used in this section, “charging instrument” means any written instrument sufficient under the law to charge a person with an offense, and shall include, but not be limited to, grand jury indictments, informations, complaints and uniform traffic, game or boating complaints. [Amended by 1989 c.842 §1; 1993 c.278 §1; 1999 c.1040 §17]

 

      132.570 [Renumbered 135.713]

 

      132.580 Names of grand jury witnesses on indictment; effect of failure to include; procedure to remedy failure. (1) When an indictment is found, the names of the witnesses examined before the grand jury that returned the indictment, either by testimony in the presence of the grand jury, by affidavit, by means of simultaneous television transmission under ORS 132.320 (5) or by telephone under ORS 132.320 (7), and the names of those whose reports were received by such grand jury pursuant to ORS 132.320 (2) must be inserted at the foot of the indictment, or indorsed thereon, before it is filed. The indorsement shall show whether the witness gave testimony before the grand jury in person, by affidavit, by means of simultaneous television transmission or by telephone or filed a report.

      (2) A witness examined before the grand jury whose name is not indorsed on the indictment shall not be permitted to testify at trial without the consent of the defendant, unless the court finds that:

      (a) The name of the witness was omitted from the indictment by inadvertence;

      (b) The name of the witness was furnished to the defendant by the state at least 10 days before trial; and

      (c) The defendant will not be prejudiced by the omission. [Amended by 1973 c.836 §59; 1995 c.126 §2; 2003 c.645 §8]

 

      132.585 [Repealed by 1959 c.426 §1]

 

ACCUSATORY INSTRUMENTS

 

      132.586 Pleading domestic violence in accusatory instrument. (1) As used in this section, “domestic violence” has the meaning given that term in ORS 135.230.

      (2) When a crime involves domestic violence, the accusatory instrument may plead, and the prosecution may prove at trial, domestic violence as an element of the crime. When a crime is so pleaded, the words “constituting domestic violence” may be added to the title of the crime. [2003 c.319 §1]

 

      132.590 [Renumbered 135.715]

 

      132.610 [Renumbered 135.717]

 

      132.620 [Renumbered 135.720]

 

      132.630 [Renumbered 135.725]

 

      132.640 [Renumbered 135.727]

 

      132.650 [Repealed by 1973 c.836 §358]

 

      132.660 [Renumbered 135.730]

 

      132.670 [Amended by 1971 c.743 §319; renumbered 135.733]

 

      132.680 [Renumbered 135.735]

 

      132.690 [Amended by 1971 c.743 §320; renumbered 135.737]

 

      132.710 [Renumbered 135.740]

 

      132.720 [Renumbered 135.743]

 

PENALTIES

 

      132.990 Premature inspection or disclosure of contents of indictment. Violation of ORS 132.420 or the prohibitions of ORS 132.410 is punishable as contempt.

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