74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2814
Senate Bill 670
Sponsored by Senator L GEORGE (at the request of Russell Walker,
FreedomWorks)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Provides that upon offer of expert scientific evidence at
trial, court must first determine whether theory or technique
supporting offered evidence is based on scientifically valid
principles and is pertinent. Specifies factors court must use in
determining whether theory or technique is based on
scientifically valid principles.
Provides that witness may not testify about scientific,
technical or other specialized knowledge if compensation of
witness is contingent on outcome of proceedings.
A BILL FOR AN ACT
Relating to evidence; creating new provisions; and amending ORS
40.410 and 426.095.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 40.410 is amended to read:
40.410. { + (1) + } If scientific, technical or other
specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training or
education may testify thereto in the form of an opinion or
otherwise.
{ + (2) If expert scientific evidence is offered at trial,
the court shall first determine under ORS 40.030 whether the
theory or technique supporting the offered evidence is based on
scientifically valid principles and is pertinent to the issue to
which the evidence is directed. In determining whether the
proposed evidence is based on scientifically valid principles,
the court shall consider all of the following factors:
(a) Whether the theory or technique is subject to testing.
(b) Whether other experts have tested and evaluated the theory
or technique.
(c) The testing procedures used in evaluating the theory or
technique, the number of studies on the theory or technique and
any criticisms of the testing procedures used in evaluating the
theory or technique.
(d) Whether the theory or technique has been subjected to peer
review and publication.
(e) The known or potential rate of error in a technique and the
existence of operational standards controlling the technique's
operation.
(f) The degree of acceptance of the theory or technique in the
relevant scientific community.
(3) If expert scientific evidence is offered in evidence and
the evidence is based on statements made out of court and not in
evidence, the evidence must meet the requirements of ORS 40.415.
The court may seek the assistance of its own expert for the
purpose of evaluating the offered evidence. The court shall deny
admission of the offered evidence under ORS 40.160 if the
probative value of the evidence is outweighed by the danger of
unfair prejudice, confusion of issues or misleading the jury.
(4) A witness may not testify about scientific, technical or
other specialized knowledge if compensation of the witness is
contingent on the outcome of the proceedings in which the
testimony is offered. + }
SECTION 2. { + The amendments to ORS 40.410 by section 1 of
this 2007 Act apply only to trials and other proceedings
commenced on or after the effective date of this 2007 Act. + }
SECTION 3. ORS 426.095 is amended to read:
426.095. The following is applicable to a commitment hearing
held by a court under ORS 426.070:
(1) The hearing may be held in a hospital, the person's home or
in some other place convenient to the court and the allegedly
mentally ill person.
(2) The court shall hold the hearing at the time established
according to the following:
(a) Except as provided by paragraph (b) or (c) of this
subsection, a hearing shall be held five judicial days from the
day a court under ORS 426.070 issues a citation provided under
ORS 426.090.
(b) Except as provided by paragraph (c) of this subsection, if
a person is detained by a warrant of detention under ORS 426.070,
a hearing shall be held within five judicial days of the
commencement of detention.
(c) If requested under this paragraph, the court, for good
cause, may postpone the hearing for not more than five judicial
days in order to allow preparation for the hearing. The court may
make orders for the care and custody of the person during a
postponement as it deems necessary. If a person is detained
before a hearing under ORS 426.070, 426.180, 426.228, 426.232 or
426.233 and the hearing is postponed under this paragraph, the
court, for good cause, may allow the person to be detained during
the postponement if the postponement is requested by the person
or the legal counsel of the person. Any of the following may
request a postponement under this paragraph:
(A) The allegedly mentally ill person.
(B) The legal counsel or guardian of the allegedly mentally ill
person.
(C) The person representing the state's interest.
(3) The allegedly mentally ill person and the person
representing the state's interest shall have the right to
cross-examine all the following:
(a) Witnesses.
(b) The person conducting the investigation.
(c) The examining physicians or other qualified persons
recommended by the Department of Human Services who have examined
the person.
(4) The provisions of ORS 40.230, 40.235, 40.240 and 40.250
shall not apply to and the court may consider as evidence any of
the following:
(a) Medical records for the current involuntary prehearing
period of detention.
(b) Statements attributed by the maker of the medical records
or the investigation report to witnesses concerning their own
observations in the absence of objection or if such persons are
produced as witnesses at the hearing available for
cross-examination.
(c) The testimony of any treating physicians, nurses or social
workers for the prehearing period of detention. Any treating
physician, nurse or social worker who is subpoenaed as a witness
for the proceeding shall testify as an expert witness under the
provisions of ORS 40.410 { + (1) + }, 40.415, 40.420 and 40.425
and is subject to treatment as an expert witness in the payment
of witness fees and costs.
(d) The investigation report prepared under ORS 426.074.
Subject to the following, the investigation report shall be
introduced in evidence:
(A) Introduction of the report under this paragraph does not
require the consent of the allegedly mentally ill person.
(B) Upon objection by any party to the action, the court shall
exclude any part of the investigation report that may be excluded
under the Oregon Evidence Code on grounds other than those set
forth in ORS 40.230, 40.235, 40.240 or 40.250.
(C) Neither the investigation report nor any part thereof shall
be introduced into evidence under this paragraph unless the
investigator is present during the proceeding to be
cross-examined or unless the presence of the investigator is
waived by the allegedly mentally ill person or counsel for the
allegedly mentally ill person.
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