75th OREGON LEGISLATIVE ASSEMBLY--2009 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 2060
House Bill 2344
Sponsored by Representative GELSER (at the request of Attorney
General Hardy Myers and Attorney General's Sexual Assault Task
Force) (Presession filed.)
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.
Requires that sexually explicit property or material involving
victim of criminal act remain in control of law enforcement
agency or court throughout criminal proceeding.
A BILL FOR AN ACT
Relating to discovery of sexually explicit material; creating new
provisions; and amending ORS 135.815 and 135.825.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2009 Act is added to and made
a part of ORS 135.855 to 135.873. + }
SECTION 2. { + (1) In any criminal or juvenile proceeding,
property or material that constitutes or contains a visual
depiction or audio recording involving a victim in a state of
nudity or engaged in sexual activity shall remain in the care,
custody and control of, and may be used for criminal justice
purposes by, a law enforcement agency or the court.
(2) A court shall deny a request by a defendant to copy,
photograph, duplicate or otherwise reproduce any property or
material that constitutes or contains a visual depiction or audio
recording involving a victim in a state of nudity or engaged in
sexual activity if the law enforcement agency having control over
the property or material makes the property or material
reasonably available to the defendant.
(3) As used in this section:
(a) 'Law enforcement agency' means:
(A) A district attorney;
(B) The Department of Justice;
(C) The Department of State Police;
(D) A county sheriff's office; or
(E) A municipal police department.
(b) 'Nudity' means the uncovered, or less than opaquely
covered, human genitals, pubic area, buttocks, anus or female
breast below a point immediately above the top of the areola or
the covered human male genitals in a discernibly turgid state.
(c) 'Reasonably available' means that the defendant, the
defendant's attorney and any qualified expert that the defendant
may seek to have testify at trial is provided ample opportunity
to inspect, view and examine the property or material at a
government facility.
(d) 'Sexual activity' means:
(A) Sexual intercourse or deviate sexual intercourse;
(B) Genital-genital, oral-genital, anal-genital or oral-anal
contact, whether between persons of the same or opposite sex or
between humans and animals;
(C) Penetration of the vagina or rectum by any object other
than as part of a medical diagnosis or treatment or as part of a
personal hygiene practice;
(D) Masturbation;
(E) Sadistic or masochistic abuse; or
(F) Any touching of the sexual or other intimate parts of a
person.
(e) 'Victim' has the meaning given that term in ORS
131.007. + }
SECTION 3. ORS 135.815 is amended to read:
135.815. (1) Except as otherwise provided in ORS 135.855 and
135.873 { + and section 2 of this 2009 Act + }, the district
attorney shall disclose to a represented defendant the following
material and information within the possession or control of the
district attorney:
(a) The names and addresses of persons whom the district
attorney intends to call as witnesses at any stage of the trial,
together with their relevant written or recorded statements or
memoranda of any oral statements of such persons.
(b) Any written or recorded statements or memoranda of any oral
statements made by the defendant, or made by a codefendant if the
trial is to be a joint one.
(c) Any reports or statements of experts, made in connection
with the particular case, including results of physical or mental
examinations and of scientific tests, experiments or comparisons
which the district attorney intends to offer in evidence at the
trial.
(d) Any books, papers, documents, photographs or tangible
objects:
(A) Which the district attorney intends to offer in evidence at
the trial; or
(B) Which were obtained from or belong to the defendant.
(e) If actually known to the district attorney, any record of
prior criminal convictions of persons whom the district attorney
intends to call as witnesses at the trial; and the district
attorney shall make a good faith effort to determine if such
convictions have occurred.
(f) All prior convictions of the defendant known to the state
that would affect the determination of the defendant's criminal
history for sentencing under rules of the Oregon Criminal Justice
Commission.
(2) Except as otherwise provided in ORS 135.855 and 135.873, in
prosecutions for violation of ORS 813.010 in which an instrument
was used to test a person's breath, blood or urine to determine
the alcoholic content of the person's blood the district attorney
shall disclose to a represented defendant at least the following
material and information within the possession or control of the
district attorney:
(a) Any report prepared by a police officer relating to field
tests, interviews, observations and other information relating to
the charged offense;
(b) Any report relating to the test results;
(c) A copy of the form provided to the defendant under ORS
813.100 (3)(b); and
(d) Any checklist prepared by the operator of the instrument
for the test.
(3)(a) If a defendant is not represented by a lawyer, the
district attorney shall disclose to the defendant all of the
information described in subsections (1) and (2) of this section
except for the personal identifiers of the victim and any
witnesses.
(b) Notwithstanding paragraph (a) of this subsection, the
district attorney shall disclose the personal identifiers of the
victim and any witnesses if the trial court orders the
disclosure. A trial court shall order the district attorney to
disclose the personal identifiers of the victim and any witnesses
if the trial court finds that:
(A) The defendant has requested the information; and
(B)(i) The victim or witness is a business or institution and
disclosure of the information would not represent a risk of harm
to the victim or witness; or
(ii) The need for the information cannot reasonably be met by
other means.
(4)(a) Unless authorized by the trial court to disclose the
information, a lawyer representing a defendant, or a
representative of the lawyer, may not disclose to the defendant
personal identifiers of a victim or witness obtained under
subsections (1) and (2) of this section.
(b) The trial court shall order the lawyer, or representative
of the lawyer, to disclose to the defendant the personal
identifiers of a victim or witness if the court finds that:
(A) The defendant's lawyer has requested the district attorney
to disclose the information to the defendant;
(B) The district attorney has refused to disclose the
information to the defendant; and
(C) The need for the information cannot reasonably be met by
other means.
(5) As used in this section:
(a) 'Personal identifiers' means a person's address, telephone
number, Social Security number and date of birth and the
identifying number of a person's depository account at a
financial institution, as defined in ORS 706.008, or credit card
account.
(b) 'Representative of the lawyer' has the meaning given that
term in ORS 40.225.
(c) 'Represented defendant' means a defendant who is
represented by a lawyer in a criminal action.
SECTION 4. ORS 135.825 is amended to read:
135.825. Except as otherwise provided in ORS 135.855 and
135.873 { + and section 2 of this 2009 Act + }, the district
attorney shall disclose to the defense:
(1) The occurrence of a search or seizure; and
(2) Upon written request by the defense, any relevant material
or information obtained thereby, the circumstances of the search
or seizure, and the circumstances of the acquisition of any
specified statements from the defendant.
----------