Bill Text: OR SB399 | 2011 | Regular Session | Introduced

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Bill Title: Relating to hearsay; declaring an emergency.

Spectrum: Unknown

Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB399 Detail]

Download: Oregon-2011-SB399-Introduced.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 1061

                         Senate Bill 399

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)

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Removes hearsay exemption for statement offered against party
who intentionally or knowingly engaged in criminal conduct that
directly caused death of declarant, or directly caused declarant
to become unavailable as witness because of incapacity or
incompetence.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to hearsay; amending ORS 40.465; and declaring an
  emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 40.465 is amended to read:
  40.465. (1) 'Unavailability as a witness' includes situations
in which the declarant:
  (a) Is exempted by ruling of the court on the ground of
privilege from testifying concerning the subject matter of a
statement;
  (b) Persists in refusing to testify concerning the subject
matter of a statement despite an order of the court to do so;
  (c) Testifies to a lack of memory of the subject matter of a
statement;
  (d) Is unable to be present or to testify at the hearing
because of death or then existing physical or mental illness or
infirmity; or
  (e) Is absent from the hearing and the proponent of the
declarant's statement has been unable to procure the declarant's
attendance (or in the case of an exception under subsection
(3)(b), (c) or (d) of this section, the declarant's attendance or
testimony) by process or other reasonable means.
  (2) A declarant is not unavailable as a witness if the
declarant's exemption, refusal, claim of lack of memory,
inability, or absence is due to the procurement or wrongdoing of
the proponent of the declarant's statement for the purpose of
preventing the witness from attending or testifying.
  (3) The following are not excluded by ORS 40.455 if the
declarant is unavailable as a witness:

  (a) Testimony given as a witness at another hearing of the same
or a different proceeding, or in a deposition taken in compliance
with law in the course of the same or another proceeding, if the
party against whom the testimony is now offered, or, in a civil
action or proceeding a predecessor in interest, had an
opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination.
  (b) A statement made by a declarant while believing that death
was imminent, concerning the cause or circumstances of what the
declarant believed to be impending death.
  (c) A statement which was at the time of its making so far
contrary to the declarant's pecuniary or proprietary interest, or
so far tended to subject the declarant to civil or criminal
liability, or to render invalid a claim by the declarant against
another, that a reasonable person in the declarant's position
would not have made the statement unless the person believed it
to be true. A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is not
admissible unless corroborating circumstances clearly indicate
the trustworthiness of the statement.
  (d)(A) A statement concerning the declarant's own birth,
adoption, marriage, divorce, legitimacy, relationship by blood or
adoption or marriage, ancestry, or other similar fact of personal
or family history, even though the declarant had no means of
acquiring personal knowledge of the matter stated; or
  (B) A statement concerning the foregoing matters, and death
also, of another person, if the declarant was related to the
other by blood, adoption, or marriage or was so intimately
associated with the other's family as to be likely to have
accurate information concerning the matter declared.
  (e) A statement made at or near the time of the transaction by
a person in a position to know the facts stated therein, acting
in the person's professional capacity and in the ordinary course
of professional conduct.
    { - (f) A statement offered against a party who intentionally
or knowingly engaged in criminal conduct that directly caused the
death of the declarant, or directly caused the declarant to
become unavailable as a witness because of incapacity or
incompetence. - }
    { - (g) - }  { +  (f) + } A statement offered against a party
who engaged in, directed or otherwise participated in wrongful
conduct that was intended to cause the declarant to be
unavailable as a witness, and did cause the declarant to be
unavailable.
    { - (h) - }  { +  (g) + } A statement not specifically
covered by any of the foregoing exceptions but having equivalent
circumstantial guarantees of trustworthiness, if the court
determines that (A) the statement is offered as evidence of a
material fact; (B) the statement is more probative on the point
for which it is offered than any other evidence which the
proponent can procure through reasonable efforts; and (C) the
general purposes of the Oregon Evidence Code and the interests of
justice will best be served by admission of the statement into
evidence. However, a statement may not be admitted under this
paragraph unless the proponent of it makes known to the adverse
party the intention to offer the statement and the particulars of
it, including the name and address of the declarant, sufficiently
in advance of the trial or hearing, or as soon as practicable
after it becomes apparent that the statement is probative of the
issues at hand, to provide the adverse party with a fair
opportunity to prepare to meet it.
  SECTION 2.  { + This 2011 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2011 Act takes effect on its
passage. + }
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