75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
Senate Bill 309
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Judiciary)
CHAPTER ................
AN ACT
Relating to evidence; creating new provisions; and amending ORS
165.540.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) A custodial interview conducted by a peace
officer in a law enforcement facility shall be electronically
recorded if the interview is conducted in connection with an
investigation into aggravated murder as defined in ORS 163.095 or
a crime listed in ORS 137.700 or 137.707.
(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 law enforcement agency that employs five or fewer peace
officers;
(h) A custodial interview conducted in connection with an
investigation carried out by a corrections officer, a youth
corrections officer or a staff member of the Oregon State
Hospital in the performance of the officer's or staff member's
official duties of treatment, custody, control or supervision of
individuals committed to or confined in a place of incarceration
or detention; or
(i) A custodial interview for which the state demonstrates good
cause for the failure to electronically record the interview.
(3)(a) 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 aggravated
murder or a crime listed in ORS 137.700 or 137.707 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
Enrolled Senate Bill 309 (SB 309-B) Page 1
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.
(b) The court may not exclude the defendant's statement or
dismiss criminal charges as a result of a violation of this
section.
(c) If each of the statements made by the defendant that the
state offers into evidence is recorded, the court may not give a
cautionary jury instruction regarding the content of the
defendant's statements.
(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
custodial interview 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 interview.
Unless the court orders otherwise, the defendant's attorney may
not copy, disseminate or republish the electronic copy of the
custodial interview, except to provide a copy to an agent of the
defendant's attorney for the limited purpose of case preparation.
(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, if the
statement is otherwise admissible. 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 an interview in which the
person questioned is in custody and is required to be advised of
the person's constitutional rights.
(b) 'Good cause' includes, but is not limited to, situations in
which:
(A) The defendant refused, or expressed an unwillingness, to
have the custodial interview electronically recorded;
(B) The failure to electronically record the custodial
interview was the result of equipment failure and a replacement
device was not immediately available;
(C) The person operating the recording equipment believed, in
good faith, that the equipment was recording the custodial
interview;
(D) Electronically recording the custodial interview would
jeopardize the safety of any person or the identity of a
confidential informant;
(E) Exigent circumstances prevented the recording of the
custodial interview; or
Enrolled Senate Bill 309 (SB 309-B) Page 2
(F) The peace 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 aggravated murder as defined in ORS 163.095 or a
crime listed in ORS 137.700 or 137.707.
(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. + }
SECTION 2. 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
Enrolled Senate Bill 309 (SB 309-B) Page 3
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 1 of this 2009 Act,
records an interview conducted by a peace officer 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 3. { + (1) Section 1 of this 2009 Act applies to
custodial interviews conducted on or after July 1, 2010, if the
person interviewed is:
Enrolled Senate Bill 309 (SB 309-B) Page 4
(a) A minor who is subsequently charged with aggravated murder
or a crime listed in ORS 137.700 or 137.707.
(b) A nonnative English speaker who requires the services of a
translator or interpreter and is subsequently charged with
aggravated murder or a crime listed in ORS 137.700 or 137.707.
(c) Subsequently charged with aggravated murder, murder,
aggravated vehicular homicide or manslaughter in the first or
second degree and the state is unable to demonstrate, by a
preponderance of the evidence, that at the time the interview
began, the peace officer conducting the interview reasonably
believed that the interview was conducted in connection with an
investigation into a crime other than aggravated murder, murder,
aggravated vehicular homicide or manslaughter in the first or
second degree.
(2) Except as provided in subsection (1) of this section,
section 1 of this 2009 Act applies to custodial interviews of
persons subsequently charged with aggravated murder or a crime
listed in ORS 137.700 or 137.707 conducted on or after July 1,
2011.
(3) The amendments to ORS 165.540 by section 2 of this 2009 Act
apply to custodial interviews conducted on or after the effective
date of this 2009 Act. + }
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Enrolled Senate Bill 309 (SB 309-B) Page 5
Passed by Senate May 4, 2009
Repassed by Senate June 12, 2009
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House June 10, 2009
...........................................................
Speaker of House
Enrolled Senate Bill 309 (SB 309-B) Page 6
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled Senate Bill 309 (SB 309-B) Page 7