Title 136 · ORS Chapter 136

139.240] �� 136.635 Construction of ORS 136.623 to 136.637. ORS 136.623 to 136.637 shall be so interpreted and construed as to effectuate their general purpose to make uniform the law of the st

Citation: ORS 139.240

Section: 139.240

139.240]

�� 136.635 Construction of ORS 136.623 to 136.637. ORS 136.623 to 136.637 shall be so interpreted and construed as to effectuate their general purpose to make uniform the law of the states which enact the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. [Formerly 139.250]

�� 136.637 Short title. ORS 136.623 to 136.637 may be cited as Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. [Formerly 139.260]

�� 136.640 [Repealed by 1973 c.836 �358]

(Competency)

�� 136.643 Defendant as witness. In the trial of or examination upon any indictment, complaint, information or other proceeding before any court, magistrate, jury or other tribunal against a person accused or charged with the commission of a crime, the person so charged or accused shall, at the own request of the person, but not otherwise, be deemed a competent witness, the credit to be given to the testimony of the person being left solely to the jury, under the instructions of the court, or to the discrimination of the magistrate, grand jury or other tribunal before which such testimony is given. The waiver of the person of this right creates no presumption against the person. The defendant or accused, when offering testimony as a witness in the own behalf of the defendant, gives the prosecution a right to cross-examination upon all facts to which the defendant or accused has testified and which tend to the conviction or acquittal of the defendant or accused. [Formerly 139.310]

�� 136.645 Codefendant as witness. No person named in an indictment, information or complaint as a codefendant shall be deemed incompetent to testify as a witness at the trial of another defendant solely because the person is so named. [Formerly 139.315]

�� 136.650 [Amended by 1973 c.836 �243; renumbered 136.460]

�� 136.655 Spouse as witness. (1) Except as provided in subsection (2) of this section, in all criminal actions in which a spouse in a marriage is the party accused, the other spouse is a competent witness, but neither spouse shall be compelled or allowed to testify in a criminal action, except as provided in ORS 40.255.

�� (2) There is no privilege under this section, or under ORS 40.255 in all criminal actions in which a spouse is charged with bigamy or with an offense or attempted offense against the person or property of the other spouse or of a child of either, or with an offense against the person or property of a third person committed in the course of committing or attempting to commit an offense against the other spouse. [Formerly 139.320; 1979 c.721 �1; 1981 c.892 �89; 2015 c.629 �29]

�� 136.660 [Amended by 1973 c.836 �244; renumbered 136.465]

�� 136.670 [Amended by 1973 c.836 �245; renumbered 136.470]

(Hypnotized Witnesses)

�� 136.675 Conditions for use of testimony of persons subjected to hypnosis. If either prosecution or defense in any criminal proceeding in the State of Oregon intends to offer the testimony of any person, including the defendant, who has been subjected to hypnosis, mesmerism or any other form of the exertion of will power or the power of suggestion which is intended to or results in a state of trance, sleep or entire or partial unconsciousness relating to the subject matter of the proposed testimony, performed by any person, it shall be a condition of the use of such testimony that the entire procedure be recorded either on videotape or any mechanical recording device. The unabridged videotape or mechanical recording shall be made available to the other party or parties in accordance with ORS 135.805 to 135.873. [1977 c.540 �1; 1983 c.740 �15]

�� 136.680 [Amended by 1973 c.836 �246; renumbered 136.475]

�� 136.685 Required explanations by law enforcement personnel to hypnosis subject; consent of subject required. (1) No person employed or engaged in any capacity by or on behalf of any state or local law enforcement agency shall use upon another person any form of hypnotism, mesmerism or any other form of the exertion of will power or the power of suggestion which is intended to or results in a state of trance, sleep or entire or partial unconsciousness without first explaining to the intended subject that:

�� (a) The intended subject is free to refuse to be subject to the processes delineated in this section;

�� (b) There is a risk of psychological side effects resulting from the process;

�� (c) If the intended subject agrees to be subject to such processes, it is possible that the process will reveal emotions or information of which the intended subject is not consciously aware and which the intended subject may wish to keep private; and

�� (d) The intended subject may request that the process be conducted by a doctor licensed under ORS 677.100 to 677.228 or a licensed psychologist, at no cost to the intended subject.

�� (2) In the event that the prospective subject refuses to consent, none of the processes delineated in subsection (1) of this section shall be used upon that person. [1977 c.540 �2; 2017 c.409 �5]

�� 136.690 [Renumbered 136.480]

�� 136.695 Evidence obtained in violation of ORS 136.675 or 136.685 inadmissible. No evidence secured in violation of ORS 136.675 or 136.685 shall be admissible in any criminal proceeding in this state. [1977 c.540 �3]

�� 136.700 [Amended by 1973 c.836 �247; renumbered 136.485]

�� 136.710 [Amended by 1973 c.836 �248; renumbered 136.490]

�� 136.720 [Amended by 1973 c.836 �249; renumbered 136.495]

�� 136.730 [Repealed by 1971 c.743 �432]

�� 136.750 [1993 c.379 �1; renumbered 153.805 in 1995]

�� 136.753 [1993 c.379 �2; renumbered 153.808 in 1995]

�� 136.756 [1993 c.379 �3; renumbered 153.810 in 1995]

PROCEDURE TO RELY ON ENHANCEMENT FACT AT SENTENCING

�� 136.760 Definitions for ORS 136.765 to 136.785.

As used in ORS 136.765 to 136.785:

�� (1) �Accusatory instrument� has the meaning given that term in ORS 131.005.

�� (2) �Enhancement fact� means a fact that is constitutionally required to be found by a jury in order to increase the sentence that may be imposed upon conviction of a crime. [2005 c.463 �1]

�� Note: 136.760 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.

�� 136.765 Notice to defendant. In order to rely on an enhancement fact to increase the sentence that may be imposed in a criminal proceeding, the state shall notify the defendant of its intention to rely on the enhancement fact by:

�� (1) Pleading the enhancement fact in the accusatory instrument; or

�� (2) Providing written notice to the defendant of the enhancement fact, and the state�s intention to rely on it, no later than 60 days after the defendant is arraigned on an indictment, waives indictment or is held to answer following a preliminary hearing, or 14 days before trial, whichever occurs earlier, unless the parties agree otherwise or the court authorizes a later date for good cause shown. [2005 c.463 �2; 2011 c.267 �1]

�� Note: 136.765 to 136.785 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.

�� 136.770 Enhancement fact related to offense. (1) When an enhancement fact relates to an offense charged in the accusatory instrument, the court shall submit the enhancement fact to the jury during the trial phase of the criminal proceeding unless the defendant:

�� (a) Defers trial of the enhancement fact under subsection (4) of this section; or

�� (b) Makes a written waiver of the right to a jury trial on the enhancement fact and:

�� (A) Admits to the enhancement fact; or

�� (B) Elects to have the enhancement fact tried to the court.

�� (2) If the defendant makes the election under subsection (1)(b)(B) of this section and is found guilty during the trial phase of the criminal proceeding, the enhancement fact shall be tried during the sentencing phase of the proceeding.

�� (3) If there is more than one enhancement fact relating to the offense and the defendant does not admit to all of them, the defendant shall elect to try to the jury or to the court all enhancement facts relating to the offense to which the defendant does not admit.

�� (4) If the court finds that trying an enhancement fact relating to the offense during the trial phase of the criminal proceeding would unfairly prejudice the jury�s verdict on an underlying offense, the court shall allow the defendant to defer trial of the enhancement fact to the sentencing phase of the proceeding without waiving the right to a jury trial on the enhancement fact.

�� (5) If two or more defendants are being tried in the same criminal proceeding, each defendant shall make the elections required by this section. [2005 c.463 �3]

�� Note: See note under 136.765.

�� 136.773 Enhancement fact related to defendant. (1) When an enhancement fact relates to the defendant, the court shall submit the enhancement fact to the jury during the sentencing phase of the criminal proceeding if the defendant is found guilty of an offense to which the enhancement fact applies unless the defendant makes a written waiver of the right to a jury trial on the enhancement fact and:

�� (a) Admits to the enhancement fact; or

�� (b) Elects to have the enhancement fact tried to the court.

�� (2) If the defendant makes the election under subsection (1)(b) of this section and is found guilty during the trial phase of the criminal proceeding, the enhancement fact shall be tried during the sentencing phase of the proceeding.

�� (3) If there is more than one enhancement fact relating to the defendant and the defendant does not admit to all of them, the defendant shall elect to try to the jury or to the court all enhancement facts relating to the defendant to which the defendant does not admit.

�� (4) If two or more defendants are being tried in the same criminal proceeding, each defendant shall make the elections required by this section.

�� (5) Unless the defendant waives the right to a jury trial on enhancement facts related to the defendant, the sentencing phase shall be conducted in the trial court before the jury following a finding of guilt by the jury. If for any reason a juror is unable to perform the function of a juror, the court shall dismiss the juror from the sentencing phase and draw the name of one of the alternate jurors. The alternate juror then becomes a member of the jury for the sentencing phase notwithstanding the fact that the alternate juror did not deliberate on the issue of guilt. The court may retain alternate jurors and may allow the substitution of an alternate juror after the jury has begun deliberations in accordance with ORS 136.280. [2005 c.463 �4; 2017 c.359 �3]

�� Note: See note under 136.765.

�� 136.776 Effect of waiver of right to jury trial. When a defendant waives the right to a jury trial on the issue of guilt or innocence, the waiver constitutes a written waiver of the right to a jury trial on all enhancement facts whether related to the offense or the defendant. [2005 c.463 �5]

�� Note: See note under 136.765.

�� 136.780 Evidence. All evidence received during the trial phase of a criminal proceeding may be considered by the jury or, if the defendant waives the right to a jury trial, by the court during the sentencing phase of the proceeding. [2005 c.463 �6]

�� Note: See note under 136.765.

�� 136.785 Burden of proof; effect of finding. (1) When an enhancement fact is tried to a jury, any question relating to the enhancement fact shall be submitted to the jury.

�� (2) The state has the burden of proving an enhancement fact beyond a reasonable doubt.

�� (3) An enhancement fact that is tried to a jury is not proven unless:

�� (a) The number of jurors who find that the state has met its burden of proof with regard to the enhancement fact is equal to or greater than the number of jurors that was required to find the defendant guilty of the crime; and

�� (b) Of the jurors who find that the state has met its burden of proof, at least the minimum number of jurors required by this subsection to prove an enhancement fact are also jurors who found the defendant guilty of the crime or alternate jurors as provided by ORS 136.773 (5).

�� (4) An enhancement fact that is tried to the court is not proven unless the court finds that the state has met its burden of proof with regard to the enhancement fact.

�� (5) A finding relating to an enhancement fact made by a jury during the trial or sentencing phase of a criminal proceeding may not be reexamined by the court. Notwithstanding the findings made by a jury relating to an enhancement fact, the court is not required to impose an enhanced sentence. [2005 c.463 �7; 2007 c.16 �3]

�� Note: See note under 136.765.

�� 136.790 Notice to defendant upon remand. In order to rely on an enhancement fact, as defined in ORS 136.760, to increase the sentence that may be imposed upon remand of a case described in section 21 (3), chapter 463, Oregon Laws 2005, the state, within a reasonable time before resentencing, shall notify the defendant of its intention to rely on the enhancement fact by providing written notice to the defendant of the enhancement fact and the state�s intention to rely on it. [2005 c.463 �22]

�� Note: 136.790 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.

�� 136.792 Jury upon remand. (1) For the purpose of imposing a new sentence in a case that has been remanded to a trial court that will result in resentencing for which a new sentence has not been imposed prior to July 7, 2005, the court may impanel a new jury to determine the enhancement facts as defined in ORS 136.760. Laws relating to impaneling a jury for a criminal trial apply to impaneling a jury under this section.

�� (2) ORS 136.785 (3) does not apply to a case in which the court has impaneled a new jury under this section. In a case with a jury impaneled under this section, an enhancement fact is not proven unless the number of jurors who find that the state has met its burden of proof with regard to the enhancement fact is equal to or greater than the number of jurors that was required to find the defendant guilty of the crime. [2005 c.463 �23]

�� Note: 136.792 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.

�� 136.810 [Amended by 1973 c.836 �250; renumbered 136.500]

�� 136.820 [Renumbered 136.505]

�� 136.830 [Amended by 1973 c.836 �251; renumbered 136.515]

�� 136.840 [Amended by 1973 c.836 �252; renumbered 136.525]

�� 136.850 [Repealed by 1971 c.565 �17 (136.851 enacted in lieu of 136.850)]

�� 136.851 [1971 c.565 �18 (136.851 enacted in lieu of 136.850); 1973 c.836 �253; renumbered 136.535]

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