75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
SA to SB 309
LC 1998/SB 309-1
SENATE AMENDMENTS TO
SENATE BILL 309
By COMMITTEE ON JUDICIARY
April 29
In line 2 of the printed bill, before the period insert ';
creating new provisions; and amending ORS 40.465, 165.540 and
419C.270'.
Delete lines 4 through 14 and insert:
' { + SECTION 1. + } ORS 40.465 is amended to read:
' 40.465. (1) 'Unavailability as a witness' includes situations
in which the declarant:
' (a) Is exempted by ruling of the court on the ground of
privilege from testifying concerning the subject matter of a
statement;
' (b) Persists in refusing to testify concerning the subject
matter of a statement despite an order of the court to do so;
' (c) Testifies to a lack of memory of the subject matter of a
statement;
' (d) Is unable to be present or to testify at the hearing
because of death or then existing physical or mental illness or
infirmity; or
' (e) Is absent from the hearing and the proponent of the
declarant's statement has been unable to procure the declarant's
attendance (or in the case of an exception under subsection
(3)(b), (c) or (d) of this section, the declarant's attendance or
testimony) by process or other reasonable means.
' (2) A declarant is not unavailable as a witness if the
declarant's exemption, refusal, claim of lack of memory,
inability, or absence is due to the procurement or wrongdoing of
the proponent of the declarant's statement for the purpose of
preventing the witness from attending or testifying.
' (3) The following are not excluded by ORS 40.455 if the
declarant is unavailable as a witness:
' (a) Testimony given as a witness at another hearing of the
same or a different proceeding, or in a deposition taken in
compliance with law in the course of the same or another
proceeding, if the party against whom the testimony is now
offered, or, in a civil action or proceeding a predecessor in
interest, had an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination.
' (b) A statement made by a declarant while believing that
death was imminent, concerning the cause or circumstances of what
the declarant believed to be impending death.
' (c) A statement which was at the time of its making so far
contrary to the declarant's pecuniary or proprietary interest, or
so far tended to subject the declarant to civil or criminal
liability, or to render invalid a claim by the declarant against
another, that a reasonable person in the declarant's position
would not have made the statement unless the person believed it
to be true. A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is not
admissible unless corroborating circumstances clearly indicate
the trustworthiness of the statement.
' (d)(A) A statement concerning the declarant's own birth,
adoption, marriage, divorce, legitimacy, relationship by blood or
adoption or marriage, ancestry, or other similar fact of personal
or family history, even though the declarant had no means of
acquiring personal knowledge of the matter stated; or
' (B) A statement concerning the foregoing matters, and death
also, of another person, if the declarant was related to the
other by blood, adoption, or marriage or was so intimately
associated with the other's family as to be likely to have
accurate information concerning the matter declared.
' (e) A statement made at or near the time of the transaction
by a person in a position to know the facts stated therein,
acting in the person's professional capacity and in the ordinary
course of professional conduct.
' (f) A statement offered against a party who intentionally or
knowingly engaged in criminal conduct that directly caused the
death of the declarant, or directly caused the declarant to
become unavailable as a witness because of incapacity or
incompetence.
' (g) A statement offered against a party who engaged in,
directed or otherwise participated in wrongful conduct that was
intended to cause the declarant to be unavailable as a witness,
and did cause the declarant to be unavailable.
' (h) 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 offered as evidence of a material fact; (B) the
statement is more probative on the point for which it is offered
than any other evidence which 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. However, a statement
may not be admitted under this paragraph 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
the statement is probative of the issues at hand, to provide the
adverse party with a fair opportunity to prepare to meet it.
' { + (i) A statement made by an interpreter that constitutes
a translation of the words or signs of another person if the
interpreter has sufficient understanding of the language of the
other person, and sufficient understanding of English to
accurately translate the words or signs of the other person into
English. + }
' { + SECTION 2. + } { + (1) A custodial interview conducted
by a law enforcement agency in a law enforcement facility shall
be electronically recorded if the interview is conducted in
connection with an investigation into a person felony.
' (2) Subsection (1) of this section does not apply to:
' (a) A statement made before a grand jury;
' (b) A statement made on the record in open court;
' (c) A custodial interview conducted in another state in
compliance with the laws of that state;
' (d) A custodial interview conducted by a federal law
enforcement officer in compliance with the laws of the United
States;
' (e) A statement that was spontaneously volunteered and did
not result from a custodial interview;
' (f) A statement made during arrest processing in response to
a routine question;
' (g) A custodial interview for which the state demonstrates
good cause for the failure to electronically record the
interview; or
' (h) A law enforcement agency that employs five or fewer
police or reserve officers as those terms are defined in ORS
181.610.
' (3) If the state offers an unrecorded statement made under
the circumstances described in subsection (1) of this section in
a criminal proceeding alleging the commission of a person felony
and the state is unable to demonstrate, by a preponderance of the
evidence, that an exception described in subsection (2) of this
section applies, upon the request of the defendant, the court
shall instruct the jury regarding the legal requirement described
in subsection (1) of this section and the superior reliability of
electronic recordings when compared with testimony about what was
said and done.
' (4) A law enforcement agency that creates an electronic
recording of a custodial interview shall preserve the recording
until the defendant's conviction for the offense is final and all
direct, post-conviction relief and habeas corpus appeals are
exhausted, or until the prosecution of the offense is barred by
law.
' (5) The state shall provide an electronic copy of a
defendant's recorded statement to a defendant in accordance with
ORS 135.805 to 135.873. Providing an electronic copy of the
custodial interview to the defendant constitutes compliance with
ORS 135.815 (1)(b) and the state is not required to provide the
defendant with a transcript of the contents of the recorded
statement.
' (6) An electronic recording of a custodial interview, and any
transcription of the recording, that is certified as containing a
complete recording, or a complete transcription, of the entirety
of the custodial interview, from the advisement of constitutional
rights to the conclusion of the custodial interview, is
admissible in any pretrial or post-trial hearing for the purpose
of establishing the contents of a statement made in the recording
and the identity of the person who made the statement. A
certification that complies with this subsection satisfies the
requirements of ORS 40.505 and 132.320 for the recording or
transcription. This subsection does not prohibit a party from
calling a witness to testify regarding the custodial interview.
' (7) As used in this section:
' (a) 'Custodial interview' means questioning by a law
enforcement officer that requires the officer to advise the
person being interviewed of the person's constitutional rights.
' (b) 'Good cause' includes situations in which:
' (A) The defendant refused to have the custodial interview
electronically recorded;
' (B) The failure to electronically record the custodial
interview was the result of equipment failure and:
' (i) A replacement device was not immediately available; or
' (ii) The law enforcement officer operating the equipment
believed, in good faith, that the equipment was operating
properly;
' (C) Electronically recording the custodial interview would
jeopardize the safety of any person or the identity of a
confidential informant;
' (D) Exigent circumstances prevented the recording of the
custodial interview; or
' (E) The law enforcement officer conducting the custodial
interview reasonably believed, at the time the custodial
interview began, that the custodial interview was conducted in
connection with a crime other than a person felony.
' (c) 'Law enforcement facility' means a courthouse, building
or premises that is a place of operation for a municipal police
department, county sheriff's office or other law enforcement
agency at which persons may be detained in connection with a
juvenile delinquency petition or criminal charge.
' (d) 'Person felony' has the meaning given that term in the
rules of the Oregon Criminal Justice Commission. + }
' { + SECTION 3. + } ORS 165.540 is amended to read:
' 165.540. (1) Except as otherwise provided in ORS 133.724 or
133.726 or subsections (2) to (7) of this section, a person may
not:
' (a) Obtain or attempt to obtain the whole or any part of a
telecommunication or a radio communication to which the person is
not a participant, by means of any device, contrivance, machine
or apparatus, whether electrical, mechanical, manual or
otherwise, unless consent is given by at least one participant.
' (b) Tamper with the wires, connections, boxes, fuses,
circuits, lines or any other equipment or facilities of a
telecommunication or radio communication company over which
messages are transmitted, with the intent to obtain unlawfully
the contents of a telecommunication or radio communication to
which the person is not a participant.
' (c) Obtain or attempt to obtain the whole or any part of a
conversation by means of any device, contrivance, machine or
apparatus, whether electrical, mechanical, manual or otherwise,
if not all participants in the conversation are specifically
informed that their conversation is being obtained.
' (d) Obtain the whole or any part of a conversation,
telecommunication or radio communication from any person, while
knowing or having good reason to believe that the conversation,
telecommunication or radio communication was initially obtained
in a manner prohibited by this section.
' (e) Use or attempt to use, or divulge to others, any
conversation, telecommunication or radio communication obtained
by any means prohibited by this section.
' (2)(a) The prohibitions in subsection (1)(a), (b) and (c) of
this section do not apply to:
' (A) Officers, employees or agents of a telecommunication or
radio communication company who perform the acts prohibited by
subsection (1)(a), (b) and (c) of this section for the purpose of
construction, maintenance or conducting of their
telecommunication or radio communication service, facilities or
equipment.
' (B) Public officials in charge of and at jails, police
premises, sheriffs' offices, Department of Corrections
institutions and other penal or correctional institutions, except
as to communications or conversations between an attorney and the
client of the attorney.
' (b) Officers, employees or agents of a telecommunication or
radio communication company who obtain information under
paragraph (a) of this subsection may not use or attempt to use,
or divulge to others, the information except for the purpose of
construction, maintenance, or conducting of their
telecommunication or radio communication service, facilities or
equipment.
' (3) The prohibitions in subsection (1)(a), (b) or (c) of this
section do not apply to subscribers or members of their family
who perform the acts prohibited in subsection (1) of this section
in their homes.
' (4) The prohibitions in subsection (1)(a) of this section do
not apply to the receiving or obtaining of the contents of any
radio or television broadcast transmitted for the use of the
general public.
' (5) The prohibitions in subsection (1)(c) of this section do
not apply to:
' (a) A person who records a conversation during a felony that
endangers human life;
' { + (b) A person who, pursuant to section 2 of this 2009
Act, records an interview conducted by a law enforcement agency
in a law enforcement facility; + }
' { - (b) - } { + (c) + } A law enforcement officer who is
in uniform and displaying a badge and who is operating a
vehicle-mounted video camera that records the scene in front of,
within or surrounding a police vehicle, unless the officer has
reasonable opportunity to inform participants in the conversation
that the conversation is being obtained; or
' { - (c) - } { + (d) + } A law enforcement officer who,
acting in the officer's official capacity, deploys an
Electro-Muscular Disruption Technology device that contains a
built-in monitoring system capable of recording audio or video,
for the duration of that deployment.
' (6) The prohibitions in subsection (1)(c) of this section do
not apply to persons who intercept or attempt to intercept with
an unconcealed recording device the oral communications that are
part of any of the following proceedings:
' (a) Public or semipublic meetings such as hearings before
governmental or quasi-governmental bodies, trials, press
conferences, public speeches, rallies and sporting or other
events;
' (b) Regularly scheduled classes or similar educational
activities in public or private institutions; or
' (c) Private meetings or conferences if all others involved
knew or reasonably should have known that the recording was being
made.
' (7) The prohibitions in subsection (1)(a), (c), (d) and (e)
of this section do not apply to any:
' (a) Radio communication that is transmitted by a station
operating on an authorized frequency within the amateur or
citizens bands; or
' (b) Person who intercepts a radio communication that is
transmitted by any governmental, law enforcement, civil defense
or public safety communications system, including police and
fire, readily accessible to the general public provided that the
interception is not for purposes of illegal activity.
' (8) Violation of subsection (1) or (2)(b) of this section is
a Class A misdemeanor.
' (9) As used in this section:
' (a) 'Electro-Muscular Disruption Technology device' means a
device that uses a high-voltage, low power charge of electricity
to induce involuntary muscle contractions intended to cause
temporary incapacitation. 'Electro-Muscular Disruption Technology
device' includes devices commonly known as tasers.
' (b) 'Law enforcement officer' has the meaning given that term
in ORS 133.726.
' { + SECTION 4. + } ORS 419C.270 is amended to read:
' 419C.270. In all proceedings brought under ORS 419C.005, the
following rules of criminal procedure apply:
' (1) ORS 133.673, 133.693 and 133.703;
' (2) ORS 135.455, 135.465 and 135.470;
' (3) ORS 135.610, 135.630 (3) to (6), 135.640 and 135.670;
' (4) ORS 135.711, 135.713, 135.715, 135.717, 135.720, 135.725,
135.727, 135.730, 135.733, 135.735, 135.737, 135.740 and 135.743;
' (5) ORS 135.805 and 135.815 (1)(a) to (e) and (2);
' (6) ORS 135.825, 135.835, 135.845 and 135.855 to 135.873;
{ - and - }
' (7) ORS 136.432 { + ; and
' (8) Section 2 of this 2009 Act + }.
' { + SECTION 5. + } { + (1) The amendments to ORS 40.465 by
section 1 of this 2009 Act apply to statements offered as
evidence on or after the effective date of this 2009 Act.
' (2) Section 2 of this 2009 Act and the amendments to ORS
419C.270 by section 4 of this 2009 Act apply to custodial
interviews conducted on or after the effective date of this 2009
Act, if the person interviewed is:
' (a) A minor who is subsequently charged with, or alleged to
have committed an act that if committed by an adult would
constitute, a person felony;
' (b) A nonnative English speaker who requires the services of
a translator or interpreter and is subsequently charged with a
person felony; or
' (c) Subsequently charged with a crime described in ORS
163.005 and the state is unable to demonstrate, by a
preponderance of the evidence, that at the time the interview
began, the law enforcement officer conducting the interview
reasonably believed that the interview was conducted in
connection with an investigation into a crime other than a crime
described in ORS 163.005.
' (3) Except as provided in subsection (2) of this section,
section 2 of this 2009 Act and the amendments to ORS 419C.270 by
section 4 of this 2009 Act apply to custodial interviews
conducted on or after July 1, 2011.
' (4) The amendments to ORS 165.540 by section 3 of this 2009
Act apply to custodial interviews conducted on or after the
effective date of this 2009 Act. + } ' .
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