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Chapter 132 — GrandJury, Indictments and Other Accusatory Instruments

2009 EDITION

GRANDJURY AND ACCUSATORY INSTRUMENTS

PROCEDUREIN CRIMINAL MATTERS GENERALLY

ORGANIZATIONOF GRAND JURY

132.010 Composition

132.020 Selectionof grand juries; law applicable to additional jury; when inquiry void

132.030 Challengeof juror prohibited; when juror may be excused

132.050 Foreman;alternate

132.060 Oathor affirmation of jurors

132.070 Chargeof court

132.080 Clerk

132.090 Presenceof persons at sittings or deliberations of jury; interpreters

132.100 Oathto witness before grand jury

132.110 Whenjuror discharged; replacement; proceeding with lesser number

132.120 Juryservice term; continuation

GRANDJUROR IN LATER PROCEEDINGS

132.210 Immunityof jurors as to official conduct

132.220 Disclosureby juror of testimony of witness examined by jury

GRANDJURY PROCEDURES

132.310 Inquiryinto crimes; presentation to court

132.320 Considerationof evidence

132.330 Submissionof indictment by district attorney

132.340 Dutiesof district attorney for jury

132.350 Juror’sknowledge of an offense; action thereon

132.360 Numberof jurors required to concur

132.370 Presentmentof facts to court for instruction as to law

132.380 Whomthe grand jury may indict

132.390 Whenthe grand jury may indict

132.400 Indorsementof indictment as “a true bill”

132.410 Findingof indictment; filing; inspection

132.420 Disclosurerelative to indictment not subject to inspection

132.430 Findingagainst indictment; indorsement “not a true bill”

132.440 Inquiryinto conditions in correctional and youth correction facilities

SUFFICIENCYOF INDICTMENT

132.510 Formsand sufficiency of pleadings

132.540 Mattersindictment must import; previous conviction not to be alleged; exceptions; useof statutory language

132.550 Content

132.557 Indictmentmust contain subcategory facts under certain circumstances

132.560 Joinderof counts and charges; consolidation of charging instruments

132.580 Namesof grand jury witnesses on indictment; effect of failure to include; procedureto remedy failure

ACCUSATORYINSTRUMENTS

132.586 Pleadingdomestic violence in accusatory instrument

PENALTIES

132.990 Prematureinspection or disclosure of contents of indictment

ORGANIZATIONOF GRAND JURY

132.010Composition.A grand jury is a body of seven persons drawn from the jurors in attendanceupon the circuit court at a particular jury service term, having thequalifications prescribed by ORS 10.030 and sworn to inquire of crimes committedor triable within the county from which they are selected. [Amended by 1985c.703 §22]

132.020Selection of grand juries; law applicable to additional jury; when inquiryvoid.(1) Under the direction of the court, the clerk shall draw names at random fromthe names of jurors in attendance upon the court until the names of sevenjurors are drawn and accepted by the court. The seven persons thus chosen shallconstitute the grand jury.

(2)When the court, in its discretion, considers that one or more additional grandjuries is needed for the administration of justice, one or more additionalgrand juries shall be selected in the manner provided in subsection (1) of thissection.

(3)Any law applicable to the grand jury is equally applicable to any additionalgrand jury selected under subsection (2) of this section, except that wheneverany duties or functions are imposed upon the grand jury, it shall be sufficientif such duties or functions are performed by one of the grand juries selectedunder this section.

(4)Any inquiry or investigation required by law to be made by a grand jury shallbe void, unless such inquiry or investigation was made entirely by the samegrand jury. [Amended by 1959 c.59 §1; 1985 c.703 §23]

132.030Challenge of juror prohibited; when juror may be excused. Neither thegrand jury panel nor any individual juror may be challenged. A judge of thecourt or clerk of court, as defined in ORS 10.010, may at any time after ajuror is drawn and before the juror is sworn excuse the juror from jury servicefor any reason prescribed in ORS 10.050. [Amended by 1973 c.836 §36; 1979 c.728§5; 1985 c.703 §24; 1999 c.1085 §2]

132.040 [Repealed by1973 c.836 §358]

132.050Foreman; alternate.The court shall appoint a foreman and an alternate foreman of the grand juryfrom the persons chosen to constitute that body. The alternate foreman shallhave the duties and powers of the foreman in the absence of the foreman. [Amendedby 1973 c.836 §37]

132.060Oath or affirmation of jurors. (1) Before the members of the grandjury enter upon the discharge of their duties, the following oath must beadministered to them by or under the direction of the court:

______________________________________________________________________________

You,as grand jurors for the County of ______, do solemnly swear that you willdiligently inquire into, and true presentment or indictment make of, all crimesagainst this state committed or triable within this county that shall come toyour knowledge; that you will keep secret the proceedings before you, thecounsel of the state, your own counsel and that of your fellows; that you willindict no person through envy, hatred or malice nor leave any person notindicted through fear, favor, affection or hope of reward; but that you willindict upon the evidence before you according to the truth and the laws of thisstate, so help you God.

______________________________________________________________________________

(2)In administering this oath, the blank therein must be filled with the name ofthe county in which the court is sitting; and if any juror prefers, the jurormust be allowed to affirm thereto, in which case, instead of the final phrasethereof there must be added, “and this you promise under the pains and penaltiesof perjury.” [Amended by 1973 c.836 §38]

132.070Charge of court.When the grand jury is formed, the court shall charge it and give it suchinformation as the court deems proper concerning the nature of its powers andduties, or charges for crime returned to the court or likely to come before thegrand jury.

132.080Clerk.The members of the grand jury shall appoint one of their number as clerk. Theclerk shall keep minutes of their proceedings (except the votes of theindividual jurors) and of the substance of the evidence given before them.

132.090Presence of persons at sittings or deliberations of jury; interpreters. (1) Except asprovided in subsections (2) and (3) of this section, no person other than thedistrict attorney or a witness actually under examination shall be presentduring the sittings of the grand jury.

(2)Upon a motion filed by the district attorney in the circuit court, the circuitjudge may appoint a reporter who shall attend the sittings of the grand jury totake and report the testimony in any matters pending before the grand jury, andmay appoint a parent, guardian or other appropriate person 18 years of age orolder to accompany any child 12 years of age or younger, or any person withmental retardation, during an appearance before the grand jury. The circuitjudge, upon the district attorney’s showing to the court that it is necessaryfor the proper examination of a witness appearing before the grand jury, mayappoint a guard, medical or other special attendant or nurse, who shall bepresent in the grand jury room and shall attend such sittings.

(3)The district attorney may designate an interpreter who is certified under ORS45.291 to interpret the testimony of witnesses appearing before the grand jury.The district attorney may designate a qualified interpreter, as defined in ORS45.288, if the circuit court determines that a certified interpreter is notavailable and that the person designated by the district attorney is aqualified interpreter as defined in ORS 45.288. An interpreter designated underthis subsection may be present in the grand jury room and attend the sittingsof the grand jury.

(4)No person other than members of the grand jury shall be present when the grandjury is deliberating or voting upon a matter before it.

(5)As used in this section, “mental retardation” has the meaning given that termin ORS 427.005. Mental retardation may be shown by attaching to the motion ofthe district attorney:

(a)Documentary evidence of intellectual functioning; or

(b)The affidavit of a qualified person familiar with the person with mentalretardation. “Qualified person” includes, but is not limited to, a teacher,therapist or physician. [Amended by 1973 c.836 §39; 1983 c.375 §1; 1991 c.406 §1;2001 c.243 §1]

132.100Oath to witness before grand jury. The foreman of the grand jury or, inthe absence of the foreman, any other grand juror shall administer an oath toany witness appearing before the grand jury. [Amended by 1973 c.836 §40]

132.110When juror discharged; replacement; proceeding with lesser number. After theformation of the grand jury and before it is discharged, the court may:

(1)Discharge a grand juror who:

(a)Becomes sick, is out of the county or fails to appear when the grand jury issummoned to reconvene;

(b)Is related, by affinity or consanguinity within the third degree, to theaccused who is under investigation by the grand jury, or held for thecommission of a crime; or

(c)Is unable to continue in the discharge of duties.

(2)Order that another person be drawn at random and sworn from the jurors then inattendance upon the court, or if no other jurors are there in attendance, fromthe master jury list of the county, to take the place of a discharged juror.

(3)Allow at least five grand jurors to proceed upon good cause shown. [Amended by1973 c.836 §41; 1985 c.703 §25]

132.120Jury service term; continuation. When the jury service term is completedthe grand jury must be discharged by the court; but the judge may, by an ordermade either in open court or at chambers anywhere in the judicial district andentered of record, stating the reasons, continue the grand jury in session forsuch period of time as the judge deems advisable. [Amended by 1959 c.638 §13;1973 c.836 §42; 1985 c.540 §30; 1985 c.703 §26]

132.130 [Repealed by1973 c.836 §358]

GRANDJUROR IN LATER PROCEEDINGS

132.210Immunity of jurors as to official conduct. A grand juror cannot bequestioned for anything the grand juror says or any vote the grand juror gives,while acting as such, relative to any matter legally pending before the grandjury, except for a perjury or false swearing of which the grand juror may havebeen guilty in giving testimony before such jury. [Amended by 1973 c.836 §43]

132.220Disclosure by juror of testimony of witness examined by jury. A member of agrand jury may be required by any court to disclose:

(1)The testimony of a witness examined before the grand jury, for the purpose ofascertaining whether it is consistent with that given by the witness before thecourt.

(2)The testimony given before such grand jury by any person, upon a charge againstsuch person for perjury or false swearing or upon trial therefor. [Amended by1973 c.836 §44]

GRANDJURY PROCEDURES

132.310Inquiry into crimes; presentation to court. The grand jury shall retire intoa private room and may inquire into crimes committed or triable in the countyand present them to the court, either by presentment or indictment, as providedin ORS 132.310 to 132.390. [Amended by 1973 c.836 §45]

132.320Consideration of evidence. (1) Except as provided in subsections (2) to (11)of this section, in the investigation of a charge for the purpose ofindictment, the grand jury shall receive no other evidence than such as mightbe given on the trial of the person charged with the crime in question.

(2)A report or a copy of a report made by a physicist, chemist, medical examiner,physician, firearms identification expert, examiner of questioned documents,fingerprint technician, or an expert or technician in some comparablescientific or professional field, concerning the results of an examination,comparison or test performed by such person in connection with a case which isthe subject of a grand jury proceeding, shall, when certified by such person asa report made by such person or as a true copy thereof, be received in evidencein the grand jury proceeding.

(3)An affidavit of a witness who is unable to appear before the grand jury shallbe received in evidence in the grand jury proceeding if, upon application bythe district attorney, the presiding judge for the judicial district in whichthe grand jury is sitting authorizes such receipt after good cause has beenshown for the witness’ inability to appear. An affidavit taken in another stateor territory of the United States, the District of Columbia or in a foreigncountry must be authenticated as provided in ORS 194.505 to 194.575 before itcan be used in this state.

(4)A grand jury that is investigating a charge of criminal driving while suspendedor revoked under ORS 811.182 may receive in evidence an affidavit of a peaceofficer with a report or copy of a report of the peace officer concerning thepeace officer’s investigation of the violation of ORS 811.182 by the defendant.

(5)A grand jury may receive testimony of a witness by means of simultaneoustelevision transmission allowing the grand jury and district attorney toobserve and communicate with the witness and the witness to observe andcommunicate with the grand jury and the district attorney.

(6)A grand jury that is investigating a charge of failure to appear under ORS133.076, 153.992, 162.195 or 162.205 may receive in evidence an affidavit of acourt employee certifying that the defendant failed to appear as required bylaw and setting forth facts sufficient to support that conclusion.

(7)(a)Except as otherwise provided in this subsection, a grand jury may receive inevidence through the testimony of one peace officer involved in the criminalinvestigation under grand jury inquiry information from an official report ofanother peace officer involved in the same criminal investigation concerningthe other peace officer’s investigation of the matter before the grand jury.The statement of a person suspected of committing an offense or inadmissiblehearsay of persons other than the peace officer who compiled the officialreport may not be presented to a grand jury under this paragraph.

(b)If the official report contains evidence other than chain of custody, venue orthe name of the person suspected of committing an offense, the grand jurorsmust be notified that the evidence is being submitted by report and that thepeace officer who compiled the report will be made available for testimony atthe request of the grand jury. When a grand jury requests the testimony of apeace officer under this paragraph, the peace officer may present sworntestimony by telephone if requiring the peace officer’s presence before thegrand jury would constitute an undue hardship on the peace officer or theagency that employs or utilizes the peace officer.

(8)A grand jury that is investigating a charge of failure to report as a sexoffender under ORS 181.599 may receive in evidence certified copies of the formrequired by ORS 181.603 (2) and sex offender registration forms and anaffidavit of a representative of the Oregon State Police, as keepers of thestate’s sex offender registration records, certifying that the certified copiesof the forms constitute the complete record for the defendant.

(9)The grand jury is not bound to hear evidence for the defendant, but it shallweigh all the evidence submitted to it; and when it believes that otherevidence within its reach will explain away the charge, it should order suchevidence to be produced, and for that purpose may require the district attorneyto issue process for the witnesses.

(10)A grand jury that is investigating a charge of driving while under theinfluence of intoxicants in violation of ORS 813.010 may receive in evidence anaffidavit of a peace officer regarding any or all of the following:

(a)Whether the defendant was driving.

(b)Whether the defendant took or refused to take tests under any provision of ORSchapter 813.

(c)The administration of tests under any provision of ORS chapter 813 and theresults of such tests.

(d)The officer’s observations of physical or mental impairment of the defendant.

(11)(a)A grand jury may receive in evidence an affidavit of a representative of afinancial institution for the purpose of authenticating records of thefinancial institution.

(b)As used in this subsection, “financial institution” means a financialinstitution as defined in ORS 706.008, an entity that regularly issues,processes or services credit cards or any other comparable entity thatregularly produces financial records. [Amended by 1973 c.836 §46; 1975 c.576 §1;1983 c.393 §25; 1995 c.126 §1; 1995 c.781 §38; 1997 c.249 §43; 1999 c.1049 §6;2001 c.19 §1; 2003 c.645 §3; 2005 c.529 §1; 2009 c.361 §1]

132.330Submission of indictment by district attorney. The districtattorney may submit an indictment to the grand jury in any case when thedistrict attorney has good reason to believe that a crime has been committedwhich is triable within the county. [Amended by 1973 c.836 §47]

132.340Duties of district attorney for jury. The district attorney, when required bythe grand jury, must prepare indictments or presentments for it and attend itssittings to advise it in relation to its duties or to examine witnesses in itspresence.

132.350Juror’s knowledge of an offense; action thereon. (1) If a grandjuror knows or has reason to believe that a crime which is triable in thecounty has been committed, the grand juror shall disclose the same to thefellow jurors, who may thereupon investigate the same.

(2)An indictment or presentment must not be found upon the statement of a grandjuror unless the grand juror is sworn and examined as a witness.

(3)A grand juror testifying as provided in subsection (2) of this section shallnot vote on the indictment nor be present during deliberations thereon. [Amendedby 1973 c.836 §48]