ORS 135.865
Effect of failure to comply with discovery requirements


Upon being apprised of any breach of the duty imposed by the provisions of ORS 135.805 (Applicability) to 135.873 (Protective orders) and 135.970 (Information required when victim contacted by defense), the court may order the violating party to permit inspection of the material, or grant a continuance, or refuse to permit the witness to testify, or refuse to receive in evidence the material not disclosed, or enter such other order as it considers appropriate. [1973 c.836 §219; 1999 c.304 §6]

Source: Section 135.865 — Effect of failure to comply with discovery requirements, https://www.­oregonlegislature.­gov/bills_laws/ors/ors135.­html.

Notes of Decisions

Remedies in this section for violation of ORS 135.815 are in the alternative and are subject to choice by court rather than by defense counsel. State v. Hand, 19 Or App 514, 528 P2d 126 (1974), Sup Ct review denied

This section makes it clear that not every breach of duty imposed by pretrial discovery statutes requires suppression of proffered evidence. State v. Curtis, 20 Or App 35, 530 P2d 520 (1975), Sup Ct review denied

Though presence or absence of prejudice is important factor to be considered by trial court in deciding whether to impose sanction of refusing to receive in evidence material that has not been disclosed, this section does not require existence of prejudice as condition to imposition of that sanction. State v. Wolfe, 21 Or App 717, 536 P2d 555 (1975), aff’d 273 Or 518, 542 P2d 482 (1975); State v. Dyson, 292 Or 26, 636 P2d 961 (1981). But see State v. Mai, 294 Or 269, 656 P2d 315 (1982)

Trial court had discretion to suppress testimony of state’s witness where the state violated discovery statutes. State v. Johnson, 26 Or App 651, 554 P2d 624 (1976)

In prosecution for driving under influence of intoxicants where police officer’s report was lost and unavailable for discovery, it was error for court, as sanction, to suppress officer’s testimony limited to fact that defendant was driving. State v. Campbell, 44 Or App 3, 604 P2d 1266 (1980), Sup Ct review denied

Where there was nothing in record to show that trial judge considered whether, or to what extent, defendant was prejudiced if in fact state violated discovery statutes, it was improper for trial court to allow defendant’s pretrial motion to dismiss complaint for state’s alleged failure to allow defendant discovery. State v. Mead, 44 Or App 53, 604 P2d 1283 (1980)

Prejudice which resulted from state’s failure to provide defendant with tape recording prior to trial was adequately dispelled when trial court granted defendant 13-day continuance and leave to reopen case. State v. Kersey, 54 Or App 944, 636 P2d 1009 (1981)

Court is required to make inquiry into alleged discovery violation and possible prejudicial effect prior to allowing introduction of evidence. State v. George, 55 Or App 224, 637 P2d 1305 (1981), as modified by 56 Or App 1, 640 P2d 1043 (1982)

Where exculpatory nature of unavailable evidence was speculative and where it would have been cumulative of other evidence produced at trial, trial judge did not abuse his discretion in denying motions to suppress and dismiss. State v. Guinn, 56 Or App 412, 642 P2d 312 (1982)

The preclusion sanction of this section is not inconsistent with the Article I, Section 11 right to compulsory process of the Oregon Constitution provided that the court finds that the prosecution is prejudiced by defendant’s failure to comply with the reciprocal discovery statutes and provided further that it appears that no sanction short of preclusion effectively will avoid the prejudice which defendant’s lack of compliance created. State v. Mai, 294 Or 269, 656 P2d 315 (1982); State v. Johanesen, 110 Or App 348, 822 P2d 154 (1991); State v. Fain, 132 Or App 488, 888 P2d 1052 (1995)

It was proper to exclude videotape where trial had been twice postponed, repeated attempts by defendant’s attorney to secure copy of videotape were unsuccessful, trial judge ordered copy provided defendant one week prior to scheduled trial date, trial judge expressly concluded that nondisclosure prejudiced defendant and trial judge concluded that district attorney had shown notable lack of diligence in following through on discovery efforts. State v. Kull, 298 Or 38, 688 P2d 1327 (1984)

Law Review Citations

18 WLR 291 (1982)

135.010
Time and place
135.020
Scope of proceedings
135.030
When presence of defendant is required
135.035
Bringing in defendant not yet arrested or held to answer
135.037
Omnibus hearing
135.040
Right to counsel
135.045
Court appointment of counsel
135.050
Eligibility for court-appointed counsel
135.055
Compensation and expenses of appointed counsel
135.060
Informing defendant as to use of name in accusatory instrument
135.065
Name used in further proceedings
135.067
Effect of failure to provide true name of defendant on certain types of release
135.070
Informing defendant as to charge, right to counsel, use of statement and preliminary hearing
135.073
Statement by defendant when not advised of rights
135.075
Obtaining counsel
135.085
Subpoenaing witnesses
135.090
Examination of adverse witnesses
135.095
Right of defendant to make or waive making a statement
135.100
Statement of defendant
135.105
Use of statement before grand jury or on trial
135.115
Waiver of right to make statement
135.125
Examination of defendant’s witnesses
135.135
Exclusion of witnesses during examination of others
135.139
Notice of availability of testing for HIV and other communicable diseases to person charged with crime
135.145
Testimony of witnesses
135.155
Retention of record and statements by magistrate
135.165
Counsel for complainant
135.173
Oregon Evidence Code to apply in preliminary hearings
135.175
Discharge
135.185
Holding defendant to answer
135.195
Commitment
135.205
Indorsement in certain cases
135.215
Direction to sheriff
135.225
Forwarding of papers by magistrate
135.230
Definitions for ORS 135.230 to 135.290
135.233
Standing pretrial release orders
135.235
Release assistance officers
135.240
Releasable offenses
135.242
Security release for certain methamphetamine offenses
135.245
Release decision
135.246
Release conditions related to medical use of cannabis
135.247
Order prohibiting contact with victim of sex crime or domestic violence
135.250
General conditions of release agreement
135.253
Waiver of appearance at trial as release condition prohibited
135.255
Release agreement
135.260
Conditional release
135.265
Security release
135.270
Taking of security
135.275
Seizure of security by law enforcement agency
135.280
Arrest warrant
135.285
Modification of release decision
135.290
Punishment by contempt of court
135.295
Application of ORS 135.230 to 135.290 to certain traffic offenses
135.305
Types of answer
135.315
Types of pleading
135.325
Pleading a judgment
135.335
Pleading by defendant
135.345
Legal effect of plea of no contest
135.355
Presentation of plea
135.360
Special provisions relating to presentation of plea of guilty or no contest
135.365
Withdrawal of plea of guilty or no contest
135.370
Not guilty plea as denial of allegations of accusatory instrument
135.375
Pleading to offenses in other counties
135.380
Time of entering plea
135.385
Defendant to be advised by court
135.390
Determining voluntariness of plea
135.395
Determining accuracy of plea
135.405
Plea discussions and plea agreements
135.407
Plea agreement must contain defendant’s criminal history classification
135.415
Criteria to be considered in plea discussions and plea agreements
135.418
Prohibited plea agreement provisions
135.425
Responsibilities of defense counsel
135.432
Judge involvement in plea discussions
135.435
Discussion and agreement not admissible
135.445
Withdrawn plea or statement not admissible
135.455
Notice prior to trial of intention to rely on alibi evidence
135.465
Defect in accusatory instrument as affecting acquittal on merits
135.470
Motion to dismiss accusatory instrument on grounds of former jeopardy
135.510
Grounds for motion to set aside the indictment
135.520
Time of making motion
135.530
Effect of allowance of motion
135.540
Effect of resubmission of case
135.560
Order to set aside is no bar to future prosecution
135.610
Demurrer
135.630
Grounds of demurrer
135.640
When objections that are grounds for demurrer may be taken
135.650
Hearing of objections specified by demurrer
135.660
Judgment on demurrer
135.670
Allowance of demurrer
135.680
Procedure if resubmission of case not allowed
135.690
Resubmission of case
135.700
Disallowance of demurrer
135.703
Crimes subject to being compromised
135.705
Satisfaction of injured person
135.707
Discharge as bar to prosecution
135.709
Exclusiveness of procedure
135.711
Facts constituting crime or subcategory of crime required
135.713
Necessity of stating presumptions of law and matters judicially noticed
135.715
Effect of nonprejudicial defects in form of accusatory instrument
135.717
Time of crime
135.720
Place of crime in certain cases
135.725
Person injured or intended to be injured
135.727
Description of animal
135.730
Judgments
135.733
Defamation
135.735
Forgery
135.737
Perjury
135.740
Construction of words and phrases used
135.743
Fictitious or erroneous name
135.745
Delay in finding an indictment or filing an information
135.746
Time period within which trial must commence
135.748
Periods of time excluded from time limits
135.750
Where there is reason for delay
135.752
When trial not commenced within time limit
135.753
Effect of dismissal
135.755
Dismissal on motion of court or district attorney
135.757
Nolle prosequi
135.760
Notice requesting early trial on pending charge
135.763
Trial within 90 days of notice unless continuance granted
135.765
Dismissal of criminal proceeding not brought to trial within allowed time
135.767
Presence of prisoner at proceedings
135.770
Release of prisoner prohibited
135.773
District attorney to furnish certain documents
135.775
Agreement on Detainers
135.777
Definition for ORS 135.775
135.779
Enforcement of ORS 135.775 by public agencies
135.783
Effect of escape from custody in another state
135.785
Surrender of custody under ORS 135.775
135.787
Administrator of agreement
135.789
Notice of request for temporary custody
135.791
Request for final disposition of detainer from prisoner in another state
135.793
Procedure where untried instrument pending against prisoner in another state
135.805
Applicability
135.815
Disclosure to defendant
135.825
Other disclosure to defense
135.835
Disclosure to the state
135.845
Time of disclosure
135.855
Material and information not subject to discovery
135.857
Disclosure to victim
135.865
Effect of failure to comply with discovery requirements
135.873
Protective orders
135.881
Definitions for ORS 135.881 to 135.901
135.886
Requirements for diversion
135.891
Conditions of diversion agreement
135.893
Diversion conditions related to medical use of cannabis
135.896
Stay of criminal proceedings during period of agreement
135.898
Diversion agreement involving servicemember charged with domestic violence
135.901
Effect of compliance or noncompliance with agreement
135.925
Bad check diversion program
135.941
Early disposition programs
135.942
Purposes of program
135.943
Provisions of program
135.948
Availability to probationers
135.949
Other programs authorized
135.951
Authorization
135.953
How mediation may be used
135.955
Notifying victims and person charged with crime of mediation opportunities
135.957
Application of ORS 36.220 to 36.238 to mediation of criminal offenses
135.959
Authority to contract with dispute resolution programs
135.970
Information required when victim contacted by defense
135.973
Medication use by specialty court entrant
135.980
Rehabilitative programs directory
135.983
Court inquiry into defendant’s immigration status prohibited
135.985
Procedure when defendant is servicemember
135.990
Penalties
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