Chapter 636
AN ACT
HB 2340
Relating to evidence; creating new provisions; and amending ORS 40.460,
40.510 and 475.235.
Be It Enacted by the People of
the State of
SECTION 1. ORS 475.235 is amended to read:
475.235. (1) It is not
necessary for the state to negate any exemption or exception in ORS 475.005 to
475.285 and 475.840 to 475.980 in any complaint, information, indictment or
other pleading or in any trial, hearing or other proceeding under ORS 475.005
to 475.285 and 475.840 to 475.980. The burden of proof of any exemption or
exception is upon the person claiming it.
(2) In the absence of
proof that a person is the duly authorized holder of an appropriate
registration or order form issued under ORS 475.005 to 475.285 and 475.840 to
475.980, the person is presumed not to be the holder of the registration or
form. The burden of proof is upon the person to rebut the presumption.
(3)(a) When a controlled
substance is at issue in a criminal proceeding before a grand jury, at a
preliminary hearing, in a proceeding on a district attorney’s information or
for purposes of an early disposition program, it is prima facie evidence of the
identity of the controlled substance if:
(A) A sample of the
controlled substance is tested using a presumptive test for controlled
substances;
(B) The test is
conducted by a law enforcement officer trained to use the test or by a forensic
scientist; and
(C) The test is positive
for the particular controlled substance.
(b) When the identity of
a controlled substance is established using a presumptive test for purposes of
a criminal proceeding before a grand jury, a preliminary hearing, a proceeding
on a district attorney’s information or an early disposition program, the
defendant, upon notice to the district attorney, may request that the
controlled substance be sent to a state police forensic laboratory for
analysis.
(4) Notwithstanding
any other provision of law, in all prosecutions in which an analysis of a
controlled substance or sample was conducted, a certified copy of the
analytical report signed by the director of a state police forensic laboratory
or the analyst or forensic scientist conducting the analysis shall be [accepted] admitted as prima facie
evidence of the results of the analytical findings unless the defendant has
provided notice of an objection in accordance with subsection (5) of this
section.
(5) If the defendant
intends to object at trial to the admission of a certified copy of an
analytical report as provided in subsection (4) of this section, not less than
15 days prior to trial the defendant shall file written notice of the objection
with the court and serve a copy on the district attorney.
[(5) Notwithstanding any statute or rule to the contrary, the defendant
may subpoena the analyst or forensic scientist to testify at the preliminary
hearing and trial of the issue at no cost to the defendant.]
(6) As used in this
section:
(a) “Analyst” means a
person employed by the Department of State Police to conduct analysis in forensic
laboratories established by the department under ORS 181.080.
(b) “Presumptive test”
includes, but is not limited to, chemical tests using Marquis reagent, Duquenois-Levine reagent, Scott reagent system or
modified Chen’s reagent.
SECTION 2. ORS 475.235, as amended by section 1 of this
2007 Act, is amended to read:
475.235. (1) It is not
necessary for the state to negate any exemption or exception in ORS 475.005 to
475.285 and 475.840 to 475.980 in any complaint, information, indictment or
other pleading or in any trial, hearing or other proceeding under ORS 475.005
to 475.285 and 475.840 to 475.980. The burden of proof of any exemption or
exception is upon the person claiming it.
(2) In the absence of
proof that a person is the duly authorized holder of an appropriate
registration or order form issued under ORS 475.005 to 475.285 and 475.840 to
475.980, the person is presumed not to be the holder of the registration or
form. The burden of proof is upon the person to rebut the presumption.
(3)(a) When a controlled
substance is at issue in a criminal proceeding before a grand jury, at a
preliminary hearing, in a proceeding on a district attorney’s information or
for purposes of an early disposition program, it is prima facie evidence of the
identity of the controlled substance if:
(A) A sample of the
controlled substance is tested using a presumptive test for controlled
substances;
(B) The test is
conducted by a law enforcement officer trained to use the test or by a forensic
scientist; and
(C) The test is positive
for the particular controlled substance.
(b) When the identity of
a controlled substance is established using a presumptive test for purposes of
a criminal proceeding before a grand jury, a preliminary hearing, a proceeding
on a district attorney’s information or an early disposition program, the
defendant, upon notice to the district attorney, may request that the
controlled substance be sent to a state police forensic laboratory for
analysis.
[(4) Notwithstanding any other provision of law, in all prosecutions in
which an analysis of a controlled substance or sample was conducted, a
certified copy of the analytical report signed by the director of a state
police forensic laboratory or the analyst or forensic scientist conducting the
analysis shall be admitted as prima facie evidence of the results of the
analytical findings unless the defendant has provided
notice of an objection in accordance with subsection (5) of this section.]
[(5) If the defendant intends to object at trial to the admission of a
certified copy of an analytical report as provided in subsection (4) of this
section, not less than 15 days prior to trial the defendant shall file written
notice of the objection with the court and serve a copy on the district
attorney.]
[(6)] (4) As used in this section,[:]
[(a) “Analyst” means a person employed by the
Department of State Police to conduct analysis in forensic laboratories
established by the department under ORS 181.080.]
[(b)] “presumptive test” includes, but is not limited to, chemical
tests using Marquis reagent, Duquenois-Levine reagent,
Scott reagent system or modified Chen’s reagent.
SECTION 3. ORS 40.460 is amended to read:
40.460. The following
are not excluded by ORS 40.455, even though the declarant is available as a
witness:
(1) (Reserved.)
(2) A statement relating
to a startling event or condition made while the declarant was under the stress
of excitement caused by the event or condition.
(3) A statement of the
declarant’s then existing state of mind, emotion, sensation or physical
condition, such as intent, plan, motive, design, mental feeling, pain or bodily
health, but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution, revocation,
identification, or terms of the declarant’s will.
(4) Statements made for
purposes of medical diagnosis or treatment and describing medical history, or
past or present symptoms, pain or sensations, or the inception or general
character of the cause of external source thereof insofar as reasonably
pertinent to diagnosis or treatment.
(5) A memorandum or
record concerning a matter about which a witness once had knowledge but now has
insufficient recollection to enable the witness to testify fully and accurately,
shown to have been made or adopted by the witness when the matter was fresh in
the memory of the witness and to reflect that knowledge correctly. If admitted,
the memorandum or record may be read into evidence but may not itself be
received as an exhibit unless offered by an adverse party.
(6) A memorandum,
report, record, or data compilation, in any form, of acts, events, conditions,
opinions, or diagnoses, made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the course of a regularly
conducted business activity, and if it was the regular practice of that
business activity to make the memorandum, report, record, or data compilation,
all as shown by the testimony of the custodian or other qualified witness,
unless the source of information or the method of circumstances of preparation
indicate lack of trustworthiness. The term “business” as used in this
subsection includes business, institution, association, profession, occupation,
and calling of every kind, whether or not conducted for profit.
(7) Evidence that a
matter is not included in the memoranda, reports, records, or data
compilations, and in any form, kept in accordance with the provisions of
subsection (6) of this section, to prove the nonoccurrence or nonexistence of
the matter, if the matter was of a kind of which a memorandum, report, record,
or data compilation was regularly made and preserved, unless the sources of
information or other circumstances indicate lack of trustworthiness.
(8) Records, reports,
statements, or data compilations, in any form, of public offices or agencies,
setting forth:
(a) The activities of
the office or agency;
(b) Matters observed
pursuant to duty imposed by law as to which matters there was a duty to report,
excluding however, in criminal cases matters observed by police officers and
other law enforcement personnel; or
(c) In civil actions and
proceedings and against the government in criminal cases, factual findings,
resulting from an investigation made pursuant to authority granted by law,
unless the sources of information or other circumstances indicate lack of
trustworthiness.
(9) Records or data
compilations, in any form, of births, fetal deaths, deaths or marriages, if the
report thereof was made to a public office pursuant to requirements of law.
(10) To prove the
absence of a record, report, statement, or data compilation, in any form, or
the nonoccurrence or nonexistence of a matter of which a record, report,
statement, or data compilation, in any form, was regularly made and preserved
by a public office or agency, evidence in the form of a certification in
accordance with ORS 40.510, or testimony, that diligent search failed to
disclose the record, report, statement, or data compilation, or entry.
(11) Statements of
births, marriages, divorces, deaths, legitimacy, ancestry, relationship by
blood or marriage, or other similar facts of personal or family history,
contained in a regularly kept record of a religious organization.
(12) A statement of fact
contained in a certificate that the maker performed a marriage or other
ceremony or administered a sacrament, made by a member of the clergy, public
official, or other person authorized by the rules or practices of a religious
organization or by law to perform the act certified, and purporting to have
been issued at the time of the act or within a reasonable time thereafter.
(13) Statements of facts
concerning personal or family history contained in family bibles, genealogies,
charts, engravings on rings, inscriptions on family portraits, engravings on
urns, crypts, or tombstones, or the like.
(14) The record of a
document purporting to establish or affect an interest in property, as proof of
content of the original recorded document and its execution and delivery by
each person by whom it purports to have been executed, if the record is a
record of a public office and an applicable statute authorizes the recording of
documents of that kind in that office.
(15) A statement
contained in a document purporting to establish or affect an interest in
property if the matter stated was relevant to the purpose of the document,
unless dealings with the property since the document was made have been
inconsistent with the truth of the statement or the purport of the document.
(16) Statements in a
document in existence 20 years or more the authenticity of which is
established.
(17) Market quotations,
tabulations, lists, directories, or other published compilations, generally
used and relied upon by the public or by persons in particular occupations.
(18) (Reserved.)
(18a)(a) A complaint of
sexual misconduct, complaint of abuse as defined in ORS 107.705 or 419B.005,
complaint of abuse of an elderly person, as those terms are defined in ORS
124.050, or a complaint relating to a violation of ORS 163.205 or 164.015 in
which a person 65 years of age or older is the victim, made by the witness
after the commission of the alleged misconduct or abuse at issue. Except as
provided in paragraph (b) of this subsection, such evidence must be confined to
the fact that the complaint was made.
(b) A statement made by
a person concerning an act of abuse as defined in ORS 107.705 or 419B.005, a
statement made by a person concerning an act of abuse of an elderly person, as
those terms are defined in ORS 124.050, or a statement made by a person
concerning a violation of ORS 163.205 or 164.015 in which a person 65 years of
age or older is the victim, is not excluded by ORS 40.455 if the declarant
either testifies at the proceeding and is subject to cross-examination, or is
unavailable as a witness but was chronologically or mentally under 12 years of
age when the statement was made or was 65 years of age or older when the
statement was made. However, if a declarant is unavailable, the statement may
be admitted in evidence only if the proponent establishes that the time,
content and circumstances of the statement provide indicia of reliability, and
in a criminal trial that there is corroborative evidence of the act of abuse
and of the alleged perpetrator’s opportunity to participate in the conduct and
that the statement possesses indicia of reliability as is constitutionally
required to be admitted. No statement may be admitted under this paragraph
unless the proponent of the statement makes known to the adverse party the
proponent’s intention to offer the statement and the particulars of the
statement no later than 15 days before trial, except for good cause shown. For
purposes of this paragraph, in addition to those situations described in ORS
40.465 (1), the declarant shall be considered “unavailable” if the declarant
has a substantial lack of memory of the subject matter of the statement, is
presently incompetent to testify, is unable to communicate about the abuse or
sexual conduct because of fear or other similar reason or is substantially
likely, as established by expert testimony, to suffer lasting severe emotional
trauma from testifying. Unless otherwise agreed by the parties, the court shall
examine the declarant in chambers and on the record or outside the presence of
the jury and on the record. The examination shall be conducted immediately
prior to the commencement of the trial in the presence of the attorney and the
legal guardian or other suitable person as designated by the court. If the
declarant is found to be unavailable, the court shall then determine the
admissibility of the evidence. The determinations shall be appealable under ORS
138.060 (1)(c) or (2)(a). The purpose of the
examination shall be to aid the court in making its findings regarding the
availability of the declarant as a witness and the reliability of the statement
of the declarant. In determining whether a statement possesses indicia of
reliability under this paragraph, the court may consider, but is not limited
to, the following factors:
(A) The personal
knowledge of the declarant of the event;
(B) The age and maturity
of the declarant or extent of disability if the declarant is a person with
developmental disabilities;
(C) Certainty that the
statement was made, including the credibility of the person testifying about
the statement and any motive the person may have to falsify or distort the
statement;
(D) Any apparent motive
the declarant may have to falsify or distort the event, including bias,
corruption or coercion;
(E) The timing of the
statement of the declarant;
(F) Whether more than
one person heard the statement;
(G) Whether the
declarant was suffering pain or distress when making the statement;
(H) Whether the
declarant’s young age or disability makes it unlikely that the declarant
fabricated a statement that represents a graphic, detailed account beyond the
knowledge and experience of the declarant;
(I) Whether the
statement has internal consistency or coherence and uses terminology
appropriate to the declarant’s age or to the extent of the declarant’s
disability if the declarant is a person with developmental disabilities;
(J) Whether the
statement is spontaneous or directly responsive to questions; and
(K) Whether the
statement was elicited by leading questions.
(c) This subsection
applies to all civil, criminal and juvenile proceedings.
(d) This subsection
applies to a child declarant, a declarant who is an elderly person as defined
in ORS 124.050 or an adult declarant with developmental disabilities. For the
purposes of this subsection, “developmental disabilities” means any disability
attributable to mental retardation, autism, cerebral palsy, epilepsy or other
disabling neurological condition that requires training or support similar to that
required by persons with mental retardation, if either of the following apply:
(A) The disability
originates before the person attains 22 years of age, or if the disability is
attributable to mental retardation the condition is manifested before the person
attains 18 years of age, the disability can be expected to continue
indefinitely, and the disability constitutes a substantial handicap to the
ability of the person to function in society.
(B) The disability
results in a significant subaverage general intellectual functioning with
concurrent deficits in adaptive behavior that are manifested during the
developmental period.
(19) Reputation among
members of a person’s family by blood, adoption or marriage, or among a person’s
associates, or in the community, concerning a person’s birth, adoption,
marriage, divorce, death, legitimacy, relationship by blood or adoption or
marriage, ancestry, or other similar fact of a person’s personal or family
history.
(20) Reputation in a
community, arising before the controversy, as to boundaries of or customs
affecting lands in the community, and reputation as to events of general
history important to the community or state or nation in which located.
(21) Reputation of a
person’s character among associates of the person or in the community.
(22) Evidence of a final
judgment, entered after a trial or upon a plea of guilty, but not upon a plea
of no contest, adjudging a person guilty of a crime other than a traffic
offense, to prove any fact essential to sustain the judgment, but not
including, when offered by the government in a criminal prosecution for
purposes other than impeachment, judgments against persons other than the
accused. The pendency of an appeal may be shown but does not affect
admissibility.
(23) Judgments as proof
of matters of personal, family or general history, or boundaries, essential to
the judgment, if the same would be provable by evidence of reputation.
(24) Notwithstanding the
limits contained in subsection (18a) of this section, in any proceeding in
which a child under 12 years of age at the time of trial, or a person with
developmental disabilities as described in subsection (18a)(d) of this section,
may be called as a witness to testify concerning an act of abuse, as defined in
ORS 419B.005, or sexual conduct performed with or on the child or person with
developmental disabilities by another, the testimony of the child or person
with developmental disabilities taken by contemporaneous examination and
cross-examination in another place under the supervision of the trial judge and
communicated to the courtroom by closed-circuit television or other audiovisual
means. Testimony will be allowed as provided in this subsection only if the
court finds that there is a substantial likelihood, established by expert
testimony, that the child or person with developmental disabilities will suffer
severe emotional or psychological harm if required to testify in open court. If
the court makes such a finding, the court, on motion of a party, the child, the
person with developmental disabilities or the court in a civil proceeding, or
on motion of the district attorney, the child or the person with developmental
disabilities in a criminal or juvenile proceeding, may order that the testimony
of the child or the person with developmental disabilities be taken as
described in this subsection. Only the judge, the attorneys for the parties,
the parties, individuals necessary to operate the equipment and any individual
the court finds would contribute to the welfare and well-being of the child or
person with developmental disabilities may be present during the testimony of
the child or person with developmental disabilities.
(25)(a) Any document
containing data prepared or recorded by the Oregon State Police pursuant to ORS
813.160 (1)(b)(C) or (E)[, or pursuant to ORS 475.235 (4),] if the document is produced by
data retrieval from the Law Enforcement Data System or other computer system
maintained and operated by the Oregon State Police, and the person retrieving
the data attests that the information was retrieved directly from the system
and that the document accurately reflects the data retrieved.
(b) Any document
containing data prepared or recorded by the Oregon State Police that is
produced by data retrieval from the Law Enforcement Data System or other
computer system maintained and operated by the Oregon State Police and that is
electronically transmitted through public or private computer networks under an
electronic signature adopted by the Oregon State Police if the person receiving
the data attests that the document accurately reflects the data received.
(c) Notwithstanding any
statute or rule to the contrary, in any criminal case in which documents are
introduced under the provisions of this subsection, the defendant may subpoena
the [analyst, as defined in ORS 475.235
(6), or other] person that generated or keeps the original document for the
purpose of testifying at the preliminary hearing and trial of the issue. Except as provided in ORS 44.550 to 44.566, no charge shall be made
to the defendant for the appearance of the [analyst
or other] person.
(26)(a) A statement that
purports to narrate, describe, report or explain an incident of domestic
violence, as defined in ORS 135.230, made by a victim of the domestic violence
within 24 hours after the incident occurred, if the statement:
(A) Was recorded, either
electronically or in writing, or was made to a peace officer as defined in ORS
161.015, corrections officer, youth correction officer, parole and probation
officer, emergency medical technician or firefighter; and
(B) Has
sufficient indicia of reliability.
(b) In determining
whether a statement has sufficient indicia of reliability under paragraph (a)
of this subsection, the court shall consider all circumstances surrounding the
statement. The court may consider, but is not limited to, the following factors
in determining whether a statement has sufficient indicia of reliability:
(A) The personal
knowledge of the declarant.
(B) Whether the statement
is corroborated by evidence other than statements that are subject to admission
only pursuant to this subsection.
(C) The timing of the
statement.
(D) Whether the
statement was elicited by leading questions.
(E) Subsequent
statements made by the declarant. Recantation by a declarant is not sufficient
reason for denying admission of a statement under this subsection in the
absence of other factors indicating unreliability.
(27) A report prepared
by a forensic scientist that contains the results of a presumptive test
conducted by the forensic scientist as described in ORS 475.235, if the
forensic scientist attests that the report accurately reflects the results of
the presumptive test.
(28)(a) A statement not
specifically covered by any of the foregoing exceptions but having equivalent
circumstantial guarantees of trustworthiness, if the court determines that:
(A) The statement is
relevant;
(B) The statement is
more probative on the point for which it is offered than any other evidence
that the proponent can procure through reasonable efforts; and
(C) The general purposes
of the Oregon Evidence Code and the interests of justice will best be served by
admission of the statement into evidence.
(b) A statement may not
be admitted under this subsection unless the proponent of it makes known to the
adverse party the intention to offer the statement and the particulars of it,
including the name and address of the declarant, sufficiently in advance of the
trial or hearing, or as soon as practicable after it becomes apparent that such
statement is probative of the issues at hand, to provide the adverse party with
a fair opportunity to prepare to meet it.
SECTION 4. ORS 40.510 is amended to read:
40.510. (1) Extrinsic
evidence of authenticity as a condition precedent to admissibility is not
required with respect to the following:
(a) A document bearing a
seal purporting to be that of the
(b) A document
purporting to bear the signature, in an official capacity, of an officer or
employee of any entity included in subsection (1)(a)
of this section, having no seal, if a public officer having a seal and having
official duties in the district or political subdivision of the officer or
employee certifies under seal that the signer has the official capacity and
that the signature is genuine.
(c) A document
purporting to be:
(A) Executed or attested
in an official capacity by a person authorized by the laws of a foreign country
to make the execution or attestation; and
(B) Accompanied by a
final certification as provided in subsection (3) of this section as to the
genuineness of the signature and official position of:
(i) The executing or
attesting person; or
(ii) Any foreign
official whose certificate of genuineness of signature and official position
relates to the execution or attestation or is in a chain of certificates of
genuineness of signature and official position relating to the execution or
attestation.
(d) A copy of an
official record or report or entry therein, or of a document authorized by law
to be recorded or filed and actually recorded or filed in a public office,
including data compilations in any form, certified as correct by the custodian
or other person authorized to make the certification, by certificate complying
with subsection (1)(a), (b) or (c) of this section or
otherwise complying with any law or rule prescribed by the Supreme Court.
(e) Books, pamphlets or
other publications purporting to be issued by public authority.
(f) Printed materials
purporting to be newspapers or periodicals.
(g) Inscriptions, signs,
tags or labels purporting to have been affixed in the course of business and
indicating ownership, control or origin.
(h) Documents
accompanied by a certificate of acknowledgment executed in the manner provided
by law by a notary public or other officer authorized by law to take
acknowledgments.
(i) Commercial paper,
signatures thereon and documents relating thereto to the extent provided by the
Uniform Commercial Code or ORS chapter 83.
(j) Any signature,
documents or other matter declared by law to be presumptively or prima facie
genuine or authentic.
(k)(A) A document
bearing a seal purporting to be that of a federally recognized Indian tribal
government or of a political subdivision, department, officer, or agency
thereof, and a signature purporting to be an attestation or execution.
(B) A document
purporting to bear the signature, in an official capacity, of an officer or
employee of any entity included in subparagraph (A) of this paragraph, having
no seal, if a public officer having a seal and having official duties in the
district or political subdivision or the officer or employee certifies under
seal that the signer has the official capacity and that the signature is genuine.
(L)(A) Any document
containing data prepared or recorded by the Oregon State Police pursuant to ORS
813.160 (1)(b)(C) or (E)[, or pursuant to ORS 475.235 (4),] if the document is produced by
data retrieval from the Law Enforcement Data System or other computer system
maintained and operated by the Oregon State Police, and the person retrieving
the data attests that the information was retrieved directly from the system
and that the document accurately reflects the data retrieved.
(B) Any document containing
data prepared or recorded by the Oregon State Police that is produced by data
retrieval from the Law Enforcement Data System or other computer system
maintained and operated by the Oregon State Police and that is electronically
transmitted through public or private computer networks under an electronic
signature adopted by the Oregon State Police if the person receiving the data
attests that the document accurately reflects the data received.
(m) A report prepared by
a forensic scientist that contains the results of a presumptive test conducted
by the forensic scientist as described in ORS 475.235, if the forensic
scientist attests that the report accurately reflects the results of the
presumptive test.
(2) For the purposes of
this section, “signature” includes any symbol executed or adopted by a party
with present intention to authenticate a writing.
(3) A final
certification for purposes of subsection (1)(c) of this section may be made by
a secretary of embassy or legation, consul general, consul, vice consul, or
consular agent of the United States, or a diplomatic or consular official of
the foreign country assigned or accredited to the United States. If reasonable
opportunity has been given to all parties to investigate the authenticity and
accuracy of official documents, the court may, for good cause shown, order that
they be treated as presumptively authentic without final certification or
permit them to be evidenced by an attested summary with or without final
certification.
SECTION 5. The amendments to ORS 40.460, 40.510 and
475.235 by sections 2, 3 and 4 of this 2007 Act become operative on January 2,
2010.
Approved by the Governor June 26, 2007
Filed in the office of Secretary of State June 27, 2007
Effective date January 1, 2008
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