ORS Chapter 44
Chapter 44 — Witnesses
2009 EDITION
WITNESSES
EVIDENCEAND WITNESSES
GENERALPROVISIONS
44.080 Protectionof witness from improper questions and excessive detention
44.090 Protectionof witness from arrest
44.150 Serviceof subpoena if witness concealed
44.240 Productionof witness confined in Department of Corrections institution
44.320 Authorityto take testimony and administer oath or affirmation
44.370 Witnesspresumed to speak truth; jury judges of credibility
FEES
44.415 Feesand mileage of witnesses
MEDIAPERSONS AS WITNESSES
44.510 Definitionsfor ORS 44.510 to 44.540
44.520 Limitationon compellable testimony from media persons; search of media persons’ papers,effects or work premises prohibited; exception
44.530 Applicationof ORS 44.520
44.540 Effectof informant as witness
CHILDRENOR PERSONS WITH DEVELOPMENTAL DISABILITIES AS WITNESSES
44.545 Expeditingproceedings
44.547 Noticeto court; accommodations
POLICEOFFICERS AS WITNESSES
44.550 Definitionsfor ORS 44.550 to 44.566
44.552 Methodof subpoenaing police officer; subpoena to reflect whether expert opinion to beasked
44.554 Paymentof police officer subpoenaed as expert witness; obligation of party toreimburse law enforcement agency; method of payment
44.556 Prepaymentof expenses in certain cases required
44.558 Paymentfor additional attendance beyond first day required in advance
44.560 Applicationto subpoenas for depositions
44.562 Partyand police officer may agree to modify time of appearance
44.564 Rightof action to recover payment due
44.566 Provisionsnot applicable if public body a party
44.010 [Repealed by1981 c.892 §98]
44.020 [Repealed by1981 c.892 §98]
44.030 [Repealed by1981 c.892 §98]
44.040 [Amended by1957 c.44 §1; 1963 c.396 §16; 1971 c.512 §4; 1973 c.136 §6; 1973 c.777 §19a;1973 c.794 §13; 1975 c.694 §1; 1975 c.726 §1; 1977 c.656 §1; 1977 c.677 §12a;1979 c.284 §79; 1979 c.731 §2; 1979 c.744 §1a; 1979 c.769 §12b; repealed by1981 c.892 §98]
44.050 [Repealed by1981 c.892 §98]
44.060 [Repealed by1981 c.892 §98]
44.070 [Repealed by1981 c.892 §98]
GENERALPROVISIONS
44.080Protection of witness from improper questions and excessive detention. It is the rightof a witness to be protected from irrelevant, insulting or improper questions,and from harsh or insulting demeanor. The witness is to be detained only solong as the interests of justice require.
44.090Protection of witness from arrest. (1) Every person who has been, in goodfaith, served with a subpoena to attend as a witness before a court, judge,commissioner, referee or other officer, is exonerated from arrest, in a civilcase, while going to the place of attendance, necessarily remaining there andreturning. The arrest of a witness contrary to this section is void, and whenwillfully made is a contempt of the court; and the officer making the arrest isresponsible to the witness for double the amount of the damages which may beassessed against the officer, and is also liable in an action by the partyserving the witness with the subpoena, for the damages sustained by that partyin consequence of the arrest.
(2)But the officer is not liable in any way, unless the person claiming theexemption makes, if required, an affidavit stating:
(a)That the person has been served with a subpoena to attend as a witness before acourt, judge or other officer, specifying the same, the place of attendance andthe action, suit or proceeding in which the subpoena was issued; and
(b)That the person has not been served by the procurement of the person with theintention of avoiding an arrest.
(3)The affidavit may be taken by the officer and exonerates the officer fromliability for not making the arrest, or for discharging the witness whenarrested.
(4)The court, judge or officer before whom the attendance of the witness isrequired may discharge the witness from an arrest made in violation of thissection.
44.095 [1973 c.386 §1;repealed by 1981 c.892 §98]
44.110 [Repealed by1979 c.284 §199]
44.120 [Amended by1969 c.383 §1; repealed by 1979 c.284 §199]
44.130 [Amended by1969 c.383 §2; repealed by 1979 c.284 §199]
44.140 [Amended by1977 c.789 §2; repealed by 1979 c.284 §199]
44.150Service of subpoena if witness concealed. A sheriff, deputy or some personspecially appointed by the sheriff, but none other, is authorized and requiredto break into any building or vessel in which a witness may be concealed toprevent the service of a subpoena, and serve it on the witness.
44.160 [Repealed by1979 c.284 §199]
44.170 [Repealed by1961 c.413 §1 (44.171 enacted in lieu of 44.170)]
44.171 [1961 c.413 §2(enacted in lieu of 44.170); repealed by 1979 c.284 §199]
44.180 [Repealed by1979 c.284 §199]
44.190 [Repealed by1979 c.284 §199]
44.200 [Repealed by1979 c.284 §199]
44.210 [Repealed by1979 c.284 §199]
44.220 [Repealed by1979 c.284 §199]
44.230 [Amended by1973 c.836 §326; repealed by 1979 c.284 §199]
44.240Production of witness confined in Department of Corrections institution. (1) Whenever acourt or judge makes an order for the temporary removal and production of awitness who is confined in a Department of Corrections institution within thisstate before a court or officer for the purpose of being orally examined thissection applies. The superintendent of the institution shall, at theinstitution, deliver the witness to the sheriff of the county in which thecourt or judge making the order is located.
(2)The sheriff shall give the superintendent a signed receipt when taking custodyof the witness under subsection (1) of this section. The sheriff shall beresponsible for the custody of the witness until the sheriff returns thewitness to the institution. Upon the return of the witness to the institutionby the sheriff, the superintendent shall give a signed receipt therefor to thesheriff.
(3)When a witness is delivered to a sheriff under subsection (1) of this section,or at any time while the witness is in the custody of the sheriff as providedin subsection (2) of this section, the superintendent may give the sheriff alist of persons who may communicate with the witness or with whom the witnessmay communicate. Except as otherwise required by law, upon receipt of the listand while the witness is in the custody of the sheriff, the sheriff shallpermit communication only between the witness and those persons designated bythe list.
(4)The sheriff and neither the institution nor the Department of Corrections shallbe liable for any expense incurred in connection with the witness while the witnessis in the custody of the sheriff as provided in subsection (2) of this section.If the witness is a party plaintiff, the sheriff shall recover costs of thecare of the witness from the plaintiff, and shall have a lien upon any judgmentfor the plaintiff. In all other cases, the sheriff and not the witness shall beentitled to the witness fees and mileage to which the witness would otherwisebe entitled under ORS 44.415 (2), or other applicable law. [1955 c.523 §1; 1969c.502 §2; 1973 c.836 §327; 1987 c.320 §13; 1987 c.606 §6; 1989 c.980 §3a]
44.310 [Repealed by1981 c.892 §98]
44.320Authority to take testimony and administer oath or affirmation. Every court,judge, clerk of a court, justice of the peace, certified shorthand reporter asdefined in ORS 8.415 or notary public is authorized to take testimony in anyaction or proceeding, as are other persons in particular cases authorized bystatute or the Oregon Rules of Civil Procedure and is authorized to administeroaths and affirmations generally, and every such other person in the particularcase authorized. [Amended by 1979 c.284 §81; 1989 c.1055 §13; 1997 c.249 §21]
44.330 [Repealed by1981 c.892 §98]
44.340 [Repealed by1981 c.892 §98]
44.350 [Repealed by1981 c.892 §98]
44.360 [Repealed by1981 c.892 §98]
44.370Witness presumed to speak truth; jury judges of credibility. A witness ispresumed to speak the truth. This presumption, however, may be overcome by themanner in which the witness testifies, by the character of the testimony of thewitness, or by evidence affecting the character or motives of the witness, orby contradictory evidence. Where the trial is by the jury, they are theexclusive judges of the credibility of the witness.
44.410 [Amended by1959 c.158 §1; repealed by 1989 c.980 §24]
FEES
44.415Fees and mileage of witnesses. (1) Except as provided in subsection(2) of this section, a person is entitled to receive $30 for each day’sattendance as a witness and mileage reimbursement at the rate of 25 cents amile if the person is required to travel from a place within or outside thisstate in order to perform duties as a witness. Total mileage reimbursementshall not exceed the necessary cost of transportation on reasonably availablecommon carriers.
(2)In any criminal proceeding, any proceeding prosecuted by a public body or anyproceeding where a public body is a party, a person is entitled to receive $5for each day’s attendance as a witness and mileage reimbursement at the rate ofeight cents a mile if the person is required to travel from a place within oroutside this state in order to perform duties as a witness. Total mileagereimbursement shall not exceed the necessary cost of transportation onreasonably available common carriers.
(3)As used in this section, “public body” means any state, city, county, schooldistrict, other political subdivision, municipal corporation, publiccorporation and any instrumentality thereof. [1989 c.980 §2]
44.420 [Repealed by1959 c.158 §2]
44.430 [Repealed by1989 c.980 §24]
44.440 [Amended by1963 c.519 §24; 1977 c.408 §1; repealed by 1981 s.s. c.3 §141]
44.450 [Amended by1977 c.593 §1; repealed by 1981 s.s. c.3 §141]
MEDIAPERSONS AS WITNESSES
44.510Definitions for ORS 44.510 to 44.540. As used in ORS 44.510 to 44.540, unlessthe context requires otherwise:
(1)“Information” has its ordinary meaning and includes, but is not limited to, anywritten, oral, pictorial or electronically recorded news or other data.
(2)“Medium of communication” has its ordinary meaning and includes, but is notlimited to, any newspaper, magazine or other periodical, book, pamphlet, newsservice, wire service, news or feature syndicate, broadcast station or network,or cable television system. Any information which is a portion of a governmentalutterance made by an official or employee of government within the scope of theofficial’s or employee’s governmental function, or any political publicationsubject to ORS 260.532, is not included within the meaning of “medium ofcommunication.”
(3)“Processing” has its ordinary meaning and includes, but is not limited to, thecompiling, storing and editing of information.
(4)“Published information” means any information disseminated to the public.
(5)“Unpublished information” means any information not disseminated to the public,whether or not related information has been disseminated. “Unpublishedinformation” includes, but is not limited to, all notes, outtakes, photographs,tapes or other data of whatever sort not themselves disseminated to the publicthrough a medium of communication, whether or not published information basedupon or related to such material has been disseminated. [1973 c.22 §2; 1979c.190 §398; 2001 c.965 §18; 2005 c.797 §50]
44.520Limitation on compellable testimony from media persons; search of media persons’papers, effects or work premises prohibited; exception. (1) No personconnected with, employed by or engaged in any medium of communication to thepublic shall be required by a legislative, executive or judicial officer orbody, or any other authority having power to compel testimony or the productionof evidence, to disclose, by subpoena or otherwise:
(a)The source of any published or unpublished information obtained by the personin the course of gathering, receiving or processing information for any mediumof communication to the public; or
(b)Any unpublished information obtained or prepared by the person in the course ofgathering, receiving or processing information for any medium of communicationto the public.
(2)No papers, effects or work premises of a person connected with, employed by orengaged in any medium of communication to the public shall be subject to asearch by a legislative, executive or judicial officer or body, or any otherauthority having power to compel the production of evidence, by search warrantor otherwise. The provisions of this subsection, however, shall not apply whereprobable cause exists to believe that the person has committed, is committingor is about to commit a crime. [1973 c.22 §3; 1979 c.820 §1]
44.530Application of ORS 44.520. (1) ORS 44.520 applies regardless of whether aperson has disclosed elsewhere any of the information or source thereof, or anyof the related information.
(2)ORS 44.520 continues to apply in relation to any of the information, or sourcethereof, or any related information, even in the event of subsequenttermination of a person’s connection with, employment by or engagement in anymedium of communication to the public.
(3)The provisions of ORS 44.520 (1) do not apply with respect to the content orsource of allegedly defamatory information, in civil action for defamationwherein the defendant asserts a defense based on the content or source of suchinformation. [1973 c.22 §§4,5; 1979 c.820 §2]
44.540Effect of informant as witness. If the informant offers the informantas a witness, it is deemed a consent to the examination also of a persondescribed in ORS 44.520 on the same subject. [1973 c.22 §6]
CHILDRENOR PERSONS WITH DEVELOPMENTAL DISABILITIES AS WITNESSES
44.545Expediting proceedings. (1) Except as otherwise provided in subsection (2)of this section or except for good cause shown by either party, in any casewhere a child or a member of the family of the child is a victim of a crime andwhere a child under 18 years of age is called to give testimony, the court,consistent with the rules of civil or criminal procedure, shall expedite theaction and insure that it takes precedence over any other. When determiningwhether or not to grant a continuance, the judge shall take into considerationthe age of the child and the potential adverse impact the delay may have on thewell-being of the child. The court shall make written findings of fact andconclusions of law when granting a continuance.
(2)The provisions of subsection (1) of this section do not apply to any juvenileproceeding other than the termination of parental rights. [1991 c.387 §1]
Note: 44.545 wasenacted into law by the Legislative Assembly but was not added to or made apart of ORS chapter 44 or any series therein by legislative action. See Prefaceto Oregon Revised Statutes for further explanation.
44.547Notice to court; accommodations. (1) In any case in which a child under12 years of age or a person with a developmental disability described insubsection (2) of this section is called to give testimony, the attorney orparty who plans to call the witness must notify the court at least seven daysbefore the trial or proceeding of any special accommodations needed by thewitness. Upon receiving the notice, the court shall order such accommodationsas are appropriate under the circumstances considering the age or disability ofthe witness. Accommodations ordered by the court may include:
(a)Break periods during the proceedings for the benefit of the witness.
(b)Designation of a waiting area appropriate to the special needs of the witness.
(c)Conducting proceedings in clothing other than judicial robes.