and 136.583 and subsection (2) of this section, a subpoena is served by

136.447 and 136.583 and subsection (2) of this section, a subpoena is served by delivering a copy to the witness personally. If the witness is under 14 years of age, the subpoena may be served by delivering a copy to the witness or to the witness�s parent, guardian or guardian ad litem. Proof of the service is made in the same manner as in the service of a summons.

����� (2)(a) Every law enforcement agency shall designate an individual or individuals upon whom service of subpoena may be made. At least one of the designated individuals shall be available during normal business hours. In the absence of the designated individuals, service of subpoena pursuant to paragraph (b) of this subsection may be made upon the officer in charge of the law enforcement agency.

����� (b) If a peace officer�s attendance at trial is required as a result of employment as a peace officer, a subpoena may be served on such officer by delivering a copy personally to the officer or to one of the individuals designated by the agency that employs the officer. A subpoena may be served by delivery to one of the individuals designated by the agency that employs the officer only if the subpoena is delivered at least 10 days before the date the officer�s attendance is required, the officer is currently employed as a peace officer by the agency, and the officer is present within the state at the time of service.

����� (c) When a subpoena has been served as provided in paragraph (b) of this subsection, the law enforcement agency shall make a good faith effort to actually notify the officer whose attendance is sought of the date, time and location of the court appearance. If the officer cannot be notified, the law enforcement agency shall contact the court and a continuance may be granted to allow the officer to be personally served.

����� (d) As used in this subsection, �law enforcement agency� means the Oregon State Police, a county sheriff�s department, a municipal police department, a police department established by a university under ORS 352.121 or 353.125 or, if the witness whose attendance at trial is required is an authorized tribal police officer as defined in ORS 181A.940, a tribal government as defined in ORS 181A.940.

����� (3) When a subpoena has been served as provided in ORS 136.583 or subsection (1) or (2) of this section and, subsequent to service, the date on, or the time at, which the person subpoenaed is to appear has changed, a new subpoena is not required to be served if:

����� (a) The subpoena is continued orally in open court in the presence of the person subpoenaed; or

����� (b) The party who issued the original subpoena notifies the person subpoenaed of the change by first class mail and by:

����� (A) Certified or registered mail, return receipt requested; or

����� (B) Express mail. [Formerly 139.100; 1977 c.789 �1; 1995 c.196 �3; 2005 c.298 �1; 2007 c.158 �1; 2009 c.364 �2; 2009 c.617 �3; 2011 c.644 ��20,65,72; 2013 c.180 �16,17; 2015 c.174 �8]

����� 136.600 Certain civil procedures applicable in criminal context. The provisions of ORS 44.150 and ORCP 39 B and 55 A(6)(d) and 55 B(4) apply in criminal actions, examinations and proceedings. [Formerly 139.110; 1979 c.284 �115; 1989 c.980 �6; 2023 c.302 �5]

����� 136.602 Witness fees payable by county; method of payment; defense witness fees payable by defendant. (1) Except as otherwise specifically provided by law, the per diem fees and mileage and any expenses allowed under ORS 136.603 due to any witness in a grand jury proceeding, or any prosecution witness in a criminal action or proceeding in a circuit or justice court or before a committing magistrate shall be paid by the county in which the grand jury proceeding or criminal action or proceeding is held. Payment shall be made upon a claim verified by the witness, showing the number of days attended and the number of miles traveled, and a certified statement, prepared by the district attorney, justice of the peace or committing magistrate, showing the amounts due the witness.

����� (2) The per diem fees and mileage due to any defense witness in a criminal action or proceeding in a circuit or justice court, or before a committing magistrate, and any expenses allowed the witness under ORS 136.603, shall be paid by the defendant. In the case of a defendant determined to be financially eligible for appointed counsel at state expense, these amounts may be paid pursuant to ORS 135.055. [1981 s.s. c.3 �63; 1983 c.401 �1; 1987 c.606 �3; 1989 c.171 �18; 1989 c.1053 �3; 2001 c.962 �87]

����� 136.603 Payment of witness who is from outside state or is indigent. (1)(a) Whenever any person attends any court, grand jury or committing magistrate as a witness on behalf of the prosecution or of any person accused of a crime upon request of the district attorney or city attorney or pursuant to subpoena, or by virtue of a recognizance for that purpose, and it appears that the witness has come from outside the state or that the witness is indigent, the court may, by an order entered in its records, direct payment to the witness of such sum of money as the court considers reasonable for the expenses of the witness. The order of the court, so entered, is sufficient authority for the payment.

����� (b) Except as otherwise specifically provided by law, if a witness who is to be paid expenses pursuant to this subsection:

����� (A) Attends a grand jury, a circuit court or judge thereof, a judge of a county court or a justice of the peace, on behalf of the prosecution, payment shall be made by the county.

����� (B) Attends a municipal court or judge thereof on behalf of the prosecution, payment shall be made by the city.

����� (C) Attends a circuit court or judge thereof on behalf of a financially eligible defendant, payment shall be made by the executive director of the Oregon Public Defense Commission.

����� (D) Attends a judge of the county court or a justice of the peace on behalf of a financially eligible defendant, payment shall be made by the county.

����� (E) Attends a municipal court or judge thereof on behalf of a financially eligible defendant, payment shall be made by the city.

����� (F) Attends any court on behalf of a defendant who is not financially eligible, payment shall be made by the defendant, and the court shall so order.

����� (2) In the case of a prisoner of a jurisdiction outside of this state who is required to attend as a witness in this state, whether for the prosecution or the defense, the sheriff shall be responsible for transporting the witness to the proper court of this state, and the sheriff shall assume any costs incurred in connection with the witness while the witness is in the custody of the sheriff. However, the sheriff and not the witness shall be entitled to the witness fees, mileage and expenses to which the witness would otherwise be entitled under this section and ORS 136.627 or other applicable law. [Formerly 139.140; 1977 c.746 �8; 1981 s.s. c.3 �64; 1983 c.401 �2; 1987 c.606 �5; 1989 c.171 �19; 2001 c.962 �27; 2023 c.281 �26]

����� 136.605 [1957 c.576 �1; 1973 c.836 �240; renumbered 136.445]

����� 136.607 [Formerly 139.150; 1977 c.746 �9; repealed by 1995 c.657 �18]

(Material Witness Order)

����� 136.608 Application procedure. (1) The district attorney or the defendant may apply to the court for a material witness order when:

����� (a) An indictment has been filed, and is pending, against the defendant in a circuit court;

����� (b) A grand jury proceeding has been commenced against the defendant; or

����� (c) A complainant�s information or a district attorney�s information alleging that the defendant has committed a felony has been filed, and is pending, in a court of competent jurisdiction.

����� (2) The application must be in writing and sworn to by the applicant. The request must state facts establishing a reasonable belief that the person the applicant desires to call as a witness:

����� (a) Possesses information material to the determination of the action against the defendant; and

����� (b) Will not appear at the time when attendance of the witness is required.

����� (3) The applicant shall file the application:

����� (a) If an indictment has been filed, a grand jury proceeding has been commenced or the defendant has been held to answer by any court to await the action of a grand jury, in the circuit court in which the indictment is pending or by which the grand jury has been impaneled; or

����� (b) If information alleging the commission of a felony is pending in a court authorized to hold a preliminary hearing, in that court or in the circuit court that would have jurisdiction of the case upon holding the defendant to answer to await the action of the grand jury.

����� (4) As used in this section and ORS 136.612 and 136.614, �material witness order� means an order finding a person to be a material witness in a pending criminal action and fixing a security amount to be posted to secure future attendance of the witness. [1995 c.657 �14]

����� Note: 136.608 to 136.614 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 136 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

����� 136.609 [Formerly 139.160; 1977 c.746 �10; repealed by 1995 c.657 �18]

����� 136.610 [Amended by 1973 c.836 �241; renumbered 136.450]

����� 136.611 Court action upon receipt of application. (1) If, upon receipt of an application under ORS 136.608, the court determines that the application is well founded, the court shall:

����� (a) Enter an order directing the prospective witness to appear before the court at a designated time; or

����� (b) Issue a warrant of arrest directing the sheriff to take the person into custody and bring the person before the court, if the application included facts establishing a reasonable belief that the prospective witness would not respond to an order to appear.

����� (2) An order under subsection (1) of this section must inform the prospective witness of the purpose of the hearing and must be served in the manner provided in ORCP 7 for the service of a summons.

����� (3) When the prospective witness appears before the court, the court shall inform the person:

����� (a) Of the nature and purpose of the hearing; and

����� (b) That the person has all of the rights of a person in a criminal proceeding including, but not limited to, the right to counsel, the right to appointed counsel at state expense if the person is unable to afford counsel and the right to call witnesses and have subpoenas issued.

����� (4) The hearing may be postponed at the request of the prospective witness for the purpose of obtaining counsel. If the hearing is postponed, the court shall order the prospective witness to appear at a future time. In addition, the court may require the prospective witness to pay an amount to secure the person�s appearance. If the person refuses to comply with the order, the court shall commit the person to the jail of the county, or other appropriate detention facility, until the person complies or is discharged. [1995 c.657 �15]

����� Note: See note under 136.608.

����� 136.612 Hearing; security amount; vacation or modification of order. (1) At the hearing to determine whether a material witness order should be entered:

����� (a) The applicant has the burden of proving by a preponderance of the evidence all facts essential to support the order;

����� (b) The prospective witness may testify and may call witnesses;

����� (c) All testimony is under oath; and

����� (d) The Oregon Evidence Code shall apply in any material witness proceeding under ORS 136.611, except that hearsay may be admitted if the court determines that it would impose an unreasonable hardship on one of the parties or on a witness to require that the primary source of the evidence be produced at the hearing, and if the witness furnishes information bearing on the informant�s reliability and, as far as possible, the means by which the information was obtained.

����� (2) If the court finds by a preponderance of the evidence that the prospective witness possesses information that is material to the pending action and will not appear at the time the attendance of the witness is required, the court shall establish a security amount calculated to ensure the attendance of the witness and shall enter a material witness order.

����� (3)(a) If the security amount is paid, the court shall release the witness. If someone other than the witness pays the security amount, the court shall release the witness only if the witness consents, in writing, to the payment of the security.

����� (b) If the security amount is not paid, the court shall commit the witness to the jail of the county, or other appropriate detention facility, until the witness pays the security amount or the attendance of the witness is no longer needed in the action.

����� (4) Unless vacated as provided in subsection (5) of this section, a material witness order remains in effect:

����� (a) If issued by a circuit court, during the pendency of the criminal action in the circuit court; or

����� (b) If issued by a court other than a circuit court, until the attendance of the witness is no longer needed in any part of the criminal action.

����� (5) At any time after the entry of a material witness order, the court, upon application of either party to the order and notice to the other party, may vacate or modify the order. The court shall consider new, or changed, facts or circumstances. The court may vacate the order or may modify any part of the order. If the court reduces the security amount, the court shall exonerate any part of the original security amount in excess of the modified amount that has been paid. [1995 c.657 �16]

����� Note: See note under 136.608.

����� 136.613 [Formerly 139.170; 1977 c.746 �11; repealed by 1995 c.657 �18]

����� 136.614 Witness held in detention facility; payment. A witness held in a county jail, or other appropriate detention facility, as the result of a material witness order must be paid $7.50 for each day of confinement. The county shall pay the fee upon the release of the witness from custody or, in the discretion of the court, at designated times or intervals during the confinement. [1995 c.657 �17]

����� Note: See note under 136.608.

����� 136.615 [Formerly 139.180; repealed by 1995 c.657 �18]

����� 136.616 Deposition to perpetuate testimony; procedure. (1) As used in this section, �material witness order� has the meaning given that term in ORS 136.608.

����� (2) At any time after the court enters a material witness order, the court may order, or the district attorney or the defendant may file a petition to conduct, a deposition to perpetuate the testimony of the material witness.

����� (3)(a) The petition must be in writing and sworn to by the petitioner.

����� (b) The petitioner shall serve a notice and a copy of the petition on the opposing party and on the material witness.

����� (4) A petition filed under this section must describe:

����� (a) The basis on which the court entered the material witness order;

����� (b) Any findings made by the court in establishing the security amount under ORS 136.612;

����� (c) Any findings made by the court in detaining the material witness; and

����� (d) The reasons that perpetuating the testimony of the material witness is necessary.

����� (5) The court shall grant or deny the petition no later than 30 days after the date the petition is filed. The court shall consider whether the perpetuation of the testimony will prevent failure or delay of justice for the parties and the material witness. If the court orders the deposition of the material witness, the court may specify the subject matter of the deposition, impose limitations on the deposition and require audio or video recording of the deposition.

����� (6) The deposition of a material witness under this section does not invalidate or otherwise affect the material witness order, but may be considered in connection with an application to vacate or modify the order under ORS 136.612 (5).

����� (7) The Oregon Evidence Code applies to depositions under this section. [2015 c.623 �7]

����� Note: 136.616 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 136 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

(Compelling Witnesses)

����� 136.617 Motion to compel witness who may be incriminated to testify. In any criminal proceeding before a court of record or in any proceeding before a grand jury, or in any proceeding before a court of record under ORS 646.760, or in any proceeding for the imposition of remedial or punitive sanction for contempt, if a witness refuses to testify or produce evidence of any kind on the ground that the witness may be incriminated thereby, the prosecuting attorney may move the court to order the witness to testify or produce evidence. The court shall forthwith hold a summary hearing at which the prosecuting attorney shall show reasonable cause to believe the witness possesses knowledge relevant to the proceeding, or that no privilege protects the evidence sought to be produced. The witness may show cause why the witness should not be compelled to testify or produce evidence. The court shall order the witness to testify regarding the subject matter under inquiry upon such showing of reasonable cause or shall order the production of evidence upon a finding that no privilege protects the evidence sought, unless the court finds that to do so would be clearly contrary to the public interest. The court shall hold the summary hearing outside the presence of the jury and the public and may require the prosecuting attorney to disclose the purpose of the testimony or evidence. The witness shall be entitled to be represented by counsel at the summary hearing. [Formerly