Category: Media Guide

In civil cases, an action is started by filing a copy of a complaint with the county clerk, generally in the county of the defendant’s residence. A complaint states what the defendant has done wrong, how the plaintiff was injured or damaged and to what degree.

After filing the complaint the sheriff or private process server delivers (serves) a copy of the complaint and a summons upon the defendant. The summons tells the defendant that he or she must “appear” in this case or the other side will win automatically. Appearance is done by filing a legal document (motion, demurrer or answer) with the court. The time for filing an answer, or motion, is within 30 days after the summons is served.

If the defendant is not found, the plaintiff can try again. In some cases where the defendant is not found, service can be upon the public welfare division, the corporation commissioner, the motor vehicles division or by publication in a newspaper of general circulation in the area where the defendant was last known to be. Once the defendant appears, he or she can file motions asking that the service of summons be quashed or disallowed, that the complaint or parts of it be stricken or made more definite and certain. The defendant can file an answer which gives his or her side of the story (affirmative defense or counterclaim), simply deny the complaint, or a combination of these answers.

The court hears legal arguments on motions and can allow or deny all, part or none. Rarely will there be any testimony presented. If the court disallows all or part of a complaint, some period of time, usually 10 days, is allowed to file an amended complaint and the process of motion, demurrer and answer starts again. After the defendant responds, the plaintiff can file motions against the defendant’s answer the same as cited above for the defendant.

If the defendant has answered by giving his or her side of the story, the plaintiff then replies by denying the affirmative allegations.

The court hears legal arguments on motions and can allow or deny all or part or none; again no testimony is presented. The “pleadings” are concluded once a complaint, answer and a reply, if necessary, are filed and all motions and demurrers have been ruled upon.

Summary Judgment:

The judge decides all or part of the case before trial where facts are not in dispute. Any party can ask for summary judgment by a motion filed at least 20 days after the commencement of the case and no fewer than 45 days from trial. The motion is usually accompanied by supporting affidavits and other relevant documents showing there is no genuine issue as to any material fact; and the moving party is entitled to prevail on all or part of the claim.

The party opposing the motion may respond and support his or her response with affidavits and other relevant documents showing there is a genuine issue of fact of trial, the other side is not entitled to relief or the responding party is entitled to win.

The judge may hear oral arguments and consider all documents and grant or deny the summary judgment. Granting a summary judgment decides the case or part of it just as if there had been a trial.

Trial is defined as a judicial examination of the issues between the parties, whether issues of law or fact. A right to jury trial exists where the value in controversy exceeds $200. Right to jury trial can be waived, however, by oral or written motion or by failing to appear for trial. There is no jury trial by right in domestic relations, juvenile, equity or mental hearing matters.

The jury panel is drawn from the registered voters of the county. Jury terms are of a length determined by the presiding judge of the circuit court, but can be no longer than two months. By law, suits for $10,000 or less are to be tried by six-person juries.

At trial the jury is usually 12 persons selected by lot, except that by agreement of the parties there can be a jury of a lesser number — usually six. Challenges to trial jury are for cause or peremptory. Challenges for cause can be of any number and are for such things as being related to a party, having an opinion as to the outcome and other obvious things. Peremptory challenges are for no reason or any reason, and each side can take three (two in a six-person jury). Where there is more than one party plaintiff or defendant they must join in the challenge.

If a trial is to be a lengthy one, the judge can order selection of up to six alternate jurors. They are selected and participate as regular jurors but are excused when the jury retires to deliberate unless a juror has become ill or has been excused during trial.

The trial procedure usually begins when the jury is called to the jury box and examined briefly by the judge. Plaintiff and defense counsel examine each juror and may challenge for cause at this time. Such challenges are then ruled upon by the judge. At the conclusion of counsel’s jury examination (called voir dire) they in turn submit written peremptory challenges (three challenges for each side).

When a jury is picked and all challenges are exhausted or waived the jury is impaneled to try the case.

The plaintiff, followed by the defense counsel, presents opening statements which tell the jury what each intends to prove in the case. The plaintiff then calls witnesses for direct examination. The defendant cross-examines plaintiff’s witnesses. If the judge allows, the lawyers may be allowed some re-direct and re-cross examination.

After the plaintiff has called all witnesses for direct examination, the case rests in chief. At that time, the defendant may move to eliminate certain parts or all of the complaint because the plaintiff has not proved the case, motions to strike, or to dismiss. The judge rules on the motions, often remarking that before the defendant has put on a case, the plaintiff is entitled to all reasonable inferences from the testimony.

The defense then calls witnesses and plaintiff cross-examines and both may re-direct and re-cross examine. The defendant then rests the case in chief. The plaintiff may then move against defendant’s case.

The plaintiff may (or may not) put on witnesses to rebut the testimony of the defense witnesses (not to “prove over again,” but to rebut the defense case). The plaintiff then rests rebuttal.

The plaintiff, followed by the defendant, argues the case to the jury. The plaintiff gets the last word and is allowed to present argument rebutting the defendant’s argument. (The last word goes to the plaintiff because he or she has the burden of proving the case.)

The judge instructs the jury on the general and specific law of the case. The jury deliberates and must find a verdict by the concurrence of at least nine of their number (in a six-person jury, five out of six must concur).

The judge receives the verdict and the jury is discharged.

Probate Procedure:

Probate powers generally include the power to probate and hear contests of wills; to determine heirship; and to control the administration, settlement and distribution of estates of decedents. The judge of the probate court may appoint a commissioner to assist the probate judge. That commissioner may act in most uncontested matters setting up the probate of an estate. The commissioner acts only under the authority of the court and all commissioner orders can be set aside by the court. Unless set aside or modified, however, all commissioner orders have the same effect as if made by the judge.

Domestic Relations Procedure:

In Oregon the grounds for divorce are that “irreconcilable differences” have arisen which have caused the “irremediable breakdown” of the marriage. These grounds can exist even where one side does not want a divorce, as that demonstrates that there are irreconcilable differences.

In Oregon any married person can get a divorce simply by filing a petition with the court and maintaining that there are irreconcilable differences which have caused the irremediable breakdown of the marriage. The petition must be filed in the county in Oregon in which the filing party resides. One of the parties to the suit must have resided in Oregon for at least six months prior to filing. The respondent (the spouse who did not file) need not “answer,” as in an ordinary civil case, but only file a paper saying “respondent appears.”

Either party may ask the court to order the other party to pay temporary child support, spousal support (alimony) or money for filing or attorney fees.

Either party may ask the court for temporary child custody, possession of real or personal property, removal of one spouse from the family home, a restraining order preventing “molesting or interfering with the other or the minor children” or a restraining order preventing either or both from disposing of or encumbering assets. In a court hearing on pre-decree requests the court takes testimony and grants or denies requests such as those listed above. The court may order a child custody study to be made for the purpose of protecting the child’s future interest. This independent investigation helps the court with child custody decisions.

Some courts offer conciliation services authorized by Oregon law. The service is funded by dissolution filing fees and does not cost the parties. The court of its own motion or either party can ask for conciliation services. The court can then suspend the dissolution proceedings for 45 days for conciliation services provided by the court.

Ninety days after filing for dissolution the hearing can commence (90 days can be waived for emergencies). The hearing is conducted as a suit in equity without as judge. The petitioner puts on evidence first. The respondent cross examines and then proceeds when the petitioner has rested the case in chief. The petitioner cross examines and then may proceed with rebuttal evidence if authorized. Then the counsel make closing statements and the court rules.

Often the parties enter into a contract dividing property, providing for custody, support and otherwise settling some or all of the issues. Fault is not an issue in a dissolution. Evidence of causation of the marriage breakdown is irrelevant except as it might bear upon the issue of child custody but only when a direct relationship between fault and custody is shown. The general moral character of a party is not an issue in a custody contest unless it is shown to have a direct effect on the child.

Most dissolutions are obtained when one of the parties has been served with the petition and summons but does not file an answer or appear in court. Often an opposing lawyer is involved but a settlement is made so that the respondent simply agrees to the contents of the petition or the terms of an amended petition or property settlement agreement. Occasionally the opposing counsel or party is physically present at the hearing but does not participate.

Typically the petitioner will testify to the grounds (“irreconcilable differences have arisen causing an irremediable breakdown of the marriage relationship”) and a few other matters and the decree would be granted with the whole thing taking five minutes or less. There is also dissolution by affidavit (mail order divorce?). Some courts may allow a dissolution without a hearing if neither child custody nor support is involved, the parties are co-petitioners or one is in default, the 90-day waiting period has passed and the case is otherwise ready for a hearing or the moving party files an affidavit setting out proof required in a dissolution hearing.

Generally all citizens are allowed access to their courts without the necessity for a lawyer. Several companies sell forms designed to allow persons with no legal training to seek and obtain a dissolution. Some courts require a strict adherence to the rules and others relax the procedure where a party is not represented. But many courts require the intervention of a lawyer where the case is complex, contested, child custody is at issue or where otherwise necessary.

The grounds and other procedures for separation are identical to those for a dissolution. The court shall determine and fix the duration for the separation after which the degree has no effect. The duration can be extended upon motion. The court may decree an unlimited separation. At any time the separation can be changed to a dissolution or dismissed or modified.

Family Abuse Prevention Act:

Under this act, a petition may be filed with the court asking for a temporary restraining order to prevent abuse. The petitioner must show abuse between “family or household members” which causes or attempts to cause bodily injury; fear of imminent serious bodily injury; or causes another to engage in involuntary sexual relations by force, threat of force or duress.

“Family or household member” means spouses, former spouses, adult persons related by blood or marriage or persons who have cohabited with each other within one year of the filing for the restraining order. Petitions and instruction brochures are available from the clerk of the court. There is no filing fee for abuse prevention restraining orders.

The court will hold an ex parte (only one side present) hearing to decide whether or not to grant the relief requested. The court hearing will be held the same day or the day following the filing of the petition.

The court can order temporary child custody, one party be required to vacate the family home, parties be restrained from molesting or interfering with the other or minor children or respondent restrained from entering upon any premises to prevent respondent from molesting or interfering. The order is good for one year. Bail is set for violations of the order. A person who is subject to the restraining order can request a hearing at which the judge may change or cancel all or part of the order. The orders will be entered on the Law Enforcement Data System. A peace officer shall arrest a person where there is probable cause to believe the order has been violated. The judge may release the arrested person on security or on conditional or recognizance release, as in criminal cases.

A hearing is set at which the judge decides whether or not the arrested person is in contempt of court for violation of the order. The penalty can be up to six months in jail and a $300 fine.

* Oregon Revised Statutes which apply include chapters 16 and 107.

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Related posts:

1. Chapter 1: Free Press and Fair Trial
2. Chapter 4: Federal Courts in Oregon
3. Chapter 3: Oregon State Courts

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The state criminal procedure includes a set of legal proceedings for both a felony case and a misdemeanor case.

Felony Proceedings

Legal proceedings in a felony case typically follow a series of steps from arrest through review by the Oregon Supreme Court. Though proceedings are generally initiated with the arrest (Step 1) , they can also be initiated with the filing of information (Step 3), or the return of an indictment by the grand jury (Step 5). If proceedings are initiated at Step 3 or Step 5, a warrant for the arrest of the defendant is usually issued when the information or indictment is filed.

1. Arrest: A person can be arrested — taken into custody — for the purpose of charging that person with an offense. A police officer can make an arrest if the officer has probable cause to believe that the person has committed a felony. A police officer can issue a citation in lieu of physical arrest for a Class C felony, unless the crime involves domestic abuse.
2. Release Decision: This determination establishes the form of release most likely to assure the defendant’s court appearance. Oregon law provides that any person charged with a crime other than murder or treason must be given the opportunity to be released under either: Personal Recognizance — release upon a promise to appear;
   Conditional Release — release that imposes regulations on the activities and associations of the defendant; or
   Security Release — release conditioned on a promise to appear that is secured by cash, stocks, bonds, or real property. (This is what historically would have been referred to as posting bail. A defendant is entitled to be released upon posting a security deposit that is 10 percent of the total security amount).A judge is likely to impose the least onerous condition reasonably likely to assure the defendant’s later appearance. A defendant in custody shall have the immediate right to security release or shall be taken before a magistrate without undue delay for a release decision. Release authority may be delegated to a release assistance officer. After conviction, the trial judge has discretion whether to grant release pending appeal.
3. Information: A written accusation is filed with the court charging a person with the commission of a felony offense. If signed by the district attorney, the information is a “district attorney’s information.” If signed by anyone else (such as a victim), it is a “complainant’s information.” This is a preliminary document that serves to commence an action, but it is not the final accusatory instrument that will serve as the basis for the ultimate prosecution in circuit court. An information must be accepted and endorsed by the district attorney.
4. Arraignment: A person is arraigned in public hearing in court, usually the defendant’s first appearance before a judge. The defendant is advised of the charge and of his or her rights, including the right to remain silent, the right to have an attorney, and the right to have a preliminary hearing within five days if the defendant is in custody or within 30 days if the defendant is not in custody (unless the grand jury considers the case sooner). If the defendant is indigent and requests an attorney, the judge will appoint one.
5. Grand Jury: A group of seven jurors evaluates evidence and determines whether sufficient evidence exists to warrant filing formal charges against the defendant. The grand jury meets in private and is sworn to secrecy regarding the proceedings. At least five of the seven grand jurors must agree before a formal charge is filed. The district attorney generally presents evidence to the grand jury, calling witnesses one at a time, but the district attorney is not present during the grand jury’s deliberations. The grand jury may return an indictment if it believes the evidence is sufficient to warrant a conviction by a trial jury.
6. Indictment: This accusatory instrument (formal charge) is filed by the grand jury. This document names the accused and contains a statement of the acts constituting the offense charged. If the grand jury determines there is not sufficient evidence to warrant further proceedings, it returns a not true bill which terminates the case.
7. Preliminary Hearing: A public court hearing determines whether there is sufficient evidence to warrant holding the defendant for further proceedings. The judge must be satisfied from the evidence that there is probable cause to believe that a crime has been committed and that the defendant committed it. If sufficient evidence is not presented to support a criminal charge, the defendant is discharged.
8. District Attorney’s Information: This document can be filed for a felony charge if the judge at a preliminary hearing has ruled that there is probable cause to believe that the defendant committed the offense. The filing of a district attorney’s information is an alternative to indictment by the grand jury. The Oregon Constitution provides that, without a waiver, no one can be prosecuted on a felony charge unless there has been either a preliminary hearing or the case has been considered the grand jury. A defendant may waive these rights and agree to the filing of a district attorney’s information to expedite the proceedings.
9. Arraignment and Plea (following indictment or preliminary hearing): The defendant first appears in court at an arraignment on an indictment or on district attorney’s information. If the defendant is without counsel, the defendant is given an opportunity to obtain counsel before proceeding with the arraignment. If the defendant is indigent, an attorney will be appointed if the defendant requests counsel. The accusatory instrument is read to the defendant and the defendant is given a copy of it and asked how he or she pleads to the charge. Often, a defendant will be allowed a reasonable time to consider the matter before entering a plea. The defendant’s plea can be guilty, not guilty, or no contest. A defendant may plead no contest only with the consent of the court; a no contest plea has the same legal effect as a plea of guilty.
10. Discovery: A district attorney and the defendant’s attorney are made aware of potential evidence possessed by the other party through discovery. The disclosures required include such things as police reports, the names, addresses, and statements of witnesses, photographs, results of physical and mental examinations, and scientific tests.
11. Pre-Trial Motions: The state or the defendant may request that the court make certain rulings before trial that have a bearing on the case. A variety of issues can be raised pre-trial. Often, the various pre-trial issues raised by the parties are heard at one time in a pre-trial omnibus hearing. The court might consider issues such as suppression of evidence, admissibility of statements by the defendant, and challenges to the sufficiency of the accusatory instrument.
12. Trial: Determination is made as to whether the state has proved the guilt of the defendant beyond a reasonable doubt at the trial, a formal public court proceeding. Both the state and the defendant are entitled to a public trial with 12 impartial jurors. (If both the state and the defendant agree, there can be fewer than 12 jurors. In all other cases, at least 10 of the jurors must agree on the verdict. Both the state and the defendant may waive trial by jury and consent to a trial by the judge. In a jury trial, the judge rules on all questions of law and procedure arising during the trial, and instructs the jurors as to the legal principles they are to apply. The jury decides the factual issues and makes the ultimate decision to whether the state has proved the guilt of the defendant beyond a reasonable doubt.
13. Sentencing: A penalty is imposed upon a convicted defendant at the sentencing. It is the duty of the judge to pass sentence if a defendant has pleaded guilty or has been found guilty. The law establishes maximum sentences for each felony offense. However, sentencing guidelines limit a court’s discretion in most felony cases to a sentence below the statutory maximum. Sentencing guidelines apply to crimes committed on or after November 1, 1989, and take into consideration the severity of the crime and the defendant’s criminal history. In 1994, Oregon voters passed several ballot measures that set mandatory prison terms for certain crimes.
14. Appeal to Oregon Court of Appeals: Decisions made in trial court can be challenged in an appeal to the Oregon Court of Appeals. The Oregon Court of Appeals is the appellate court having initial jurisdiction to review cases from the trial courts. A convicted defendant has an absolute right to file an appeal with the Court of Appeals. The state can appeal certain pre-trial rulings and sentencing decisions, but cannot appeal a finding of not guilty. The Court of Appeals does not hold trials or hear testimony. It hears legal arguments and reviews the record that has been made in the trial court. Appellate review is generally limited to questions of law and procedure rather than factual findings. That is, possible erroneous rulings by the trial judge are considered, not the jury’s evaluation of the evidence. If it is decided that the trial court made an error that affected a defendant’s right to a fair trial, the conviction is reversed and the case is generally returned to the trial court for a new trial. There are 10 judges on the Court of Appeals. Cases are generally heard by three-judge panels.
15. Review by Oregon Supreme Court: A decision of the Court of Appeals may be re-examined the Oregon Supreme Court, the highest appellate court in the state court system. The seven-member court has jurisdiction to review decisions of the Court of Appeals. If either the state or the defendant is not satisfied with a decision from the Court of Appeals, a petition can be filed asking the Supreme Court to review the decision. The Supreme Court determines which cases merit review. If review is granted, the court will hear legal arguments, review the record of the case, and issue an opinion that affirms or reverses the decision of the Court of Appeals. The Supreme Court also reviews all death penalty cases.

Misdemeanor Proceedings

Legal proceedings in a misdemeanor case typically follow a series of steps starting with the arrest of the defendant. The proceedings could also be initiated with the filing of a complaint (Step 3), followed by the issuance of a warrant for the arrest of the defendant. Except as described below, the descriptions of procedures followed in a misdemeanor case are the same as those discussed under felony procedures.

1. Arrest: A police officer may arrest a person without a warrant for any misdemeanor committed in the officer’s presence, or if the officer has probable cause to believe that the person committed a Class A misdemeanor. A police officer can issue a citation in lieu of physical arrest for a misdemeanor, unless the crime involves domestic abuse.
2. Complaint: This written accusation, verified by oath and filed with the court, charges a person with an offense other than a felony.
3. District Attorney’s Information: This written accusation is similar to a complaint but signed by the district attorney. Either a complaint or a district attorney’s information can commence an action and serve as a basis for the prosecution of a misdemeanor case. There is no requirement that there be either a preliminary hearing or grand jury consideration as in felony cases. A complaint can be signed by any person, but must be accepted and endorsed by the district attorney before filing.
4. Arraignment and Plea: Same as for felonies.
5. Discovery: Same as for felonies.
6. Pre-Trial Motions: Same as for felonies.
7. Trial: There are six people on a jury for a misdemeanor charge, and a unanimous verdict is required.
8. Sentencing: No pre-sentence report is required in a misdemeanor case. Sentencing guidelines and mandatory sentences do not apply to misdemeanors.

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Related posts:

1. Chapter 3: Oregon State Courts
2. Chapter 5: State Civil Trial Procedures

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Police agencies and district attorneys’ offices often receive requests from the press for various criminal records. Access to these records is governed primarily by state statutes and administrative rules. Under Oregon’s Public Records Laws, the record of an arrest or the report of a crime is generally available to the public. Records and reports remain confidential only if, and so long as, there is a clear need in a particular case to delay disclosure in the course of a specific investigation.

Public Records Laws:

What can be disclosed:

If there is no need to delay disclosure, the press may obtain the following information:

The arrested person’s name, age, residence, employment, marital status and similar biographical information:

• the offense with which the arrested person is charged;
• the terms upon which the arrested person was released from custody;
• the identity and biographical information concerning both the complaining party and the victim;
• the identity of the investigating and arresting agency and the length of the investigations;
• the circumstances of arrest, including time, place, resistance, pursuit and weapons used;
• such information as may be necessary to enlist public assistance in apprehending fugitives from justice.

This list is illustrative, not exclusive.

Limitations on Access to Public Records:

The principal limitations on access to information result both from attempts to protect a defendant’s right to a fair trial, and from the exemption in the public records law regarding disclosure of investigatory information compiled for criminal law purposes. This type of information is exempt, unless it is necessary for the public interest.

In interpreting this exemption, the Oregon Court of Appeals rejected two extreme positions: (1) that materials relating to criminal investigations are available if no prosecutions were initiated or all prosecutions were completed; and (2) material once exempt from disclosure is forever exempt. Instead, the court adopted a middle position, in which the agency possessing the information must identify various purposes for keeping such information secret. Thus, criminal investigatory information will not be disclosed if disclosure would:

• interfere with criminal prosecutions;
• deprive a defendant of the right to a fair trial;
• unreasonably invade personal privacy;
• reveal the identity of a confidential source, or confidential information supplied only by the confidential source;
• reveal non-routine investigative techniques or procedures;
• endanger the life or physical safety of law enforcement personnel.

Because police reports often contain information which, if released, would conflict with one or more of these reasons for secrecy, the press may be denied access to the reports themselves. Instead, the relevant agency will furnish only information from those reports that is not exempt from disclosure under the public records law.

Oregon law permits courts to consider pre-sentence reports before imposing sentence upon defendants convicted of crimes. These pre-sentence reports, prepared by the corrections division or community corrections probation officers, usually discuss the circumstances of the offense, the defendant’s social and family history, his or her present condition and environment and his or her criminal record. Often, pre-sentence reports also contain the results of psychological examinations of defendants and diagnostic opinions by the examining professionals. Under Oregon law, pre-sentence reports are not public records, and access is restricted to sentencing judges, the corrections division, the State Board of Parole, appellate or reviewing courts (when the information in the report is relevant to an issue before the court), the district attorney, the defendant, or his or her attorney and other persons or agencies having a legitimate professional interest in the information. Pre-sentence reports will not be released to the press.

When a person under the supervision of the corrections division (such as an inmate, parolee or person housed in a work release facility) is charged with a new crime, the corrections division, pursuant to its administrative rules, will adhere to the Bar-Press-Broadcasters guidelines for disclosure and reporting of information on criminal proceedings. For those guidelines, see Chapter 1, appendix A and appendix B. Oregon law generally limits access to the full compiled criminal history information kept by the Oregon State Police to law enforcement agencies and certain other government agencies. However, state law (ORS 181.555 and 181.560) also provides that any person, including a news reporter, can obtain some information on the criminal history of an individual.

Procedure for Obtaining Criminal History:

The procedure is to apply in writing to the Bureau of Criminal Identification of the Oregon State Police in Salem, identifying as clearly as possible the person about whose record the inquiry is being made. The bureau will give that person 14 days notice that an inquiry is being made about him. The delay is intended to give the person an opportunity to exercise his or her right to inspect his or her own criminal history and to have it corrected if it is wrong. At the end of the 14 days, the bureau will send to the person making the inquiry, information it may have about (a) any conviction of the subject in Oregon, and (b) any arrest in Oregon which is less than one year old and on which there has been no acquittal or dismissal. Included will be information on felonies, on any offense involving sexual misconduct, and on certain drug violations. Records of other misdemeanors will not be reported.

For this service the bureau is authorized to charge a fee for each inquiry. Anyone receiving this criminal history information should use it with care, because the law specifies that the State Police will release it based on similarity of name and description, without confirming it through comparison of fingerprints.

Setting Aside a Conviction or Record of Arrest:

Oregon law provides, under certain circumstances, that a conviction or record of arrest may be set aside. Under ORS 137.225, persons convicted of a class C felony, (except for specified child abuse offenses); possession of marijuana when that crime was punishable only as felony, crime punishable as either a felony or a misdemeanor; and any misdemeanor for which a jail sentence may be imposed may move to have conviction set aside. There are specific exceptions, however, when the offenses involve sexual abuse or child abuse. The statute also does not apply to traffic violations or traffic crimes.

A convicted person who qualifies, based on the type of offenses outlined above, after three years from the date of judgment, may apply to the court to set aside the conviction. The sentence must have been completed by then, and the person must have had no further legal problems. A person who is arrested but not charged within a year from the date of arrest or a person who was arrested and acquitted, at any time after the acquittal or dismissal of the case may apply, likewise to set aside the arrest.

The procedure involves applying to the court, supplying a copy of fingerprints to the District Attorney’s office to verify the identity of the person making application and, when the application is based upon a conviction, paying a fee of $80.00 through the state police office.

The statutes further provide that, unless the court finds clear and convincing evidence that granting the motion would not be in the best interest of justice, an order setting aside the record shall be granted. The defendant may then be considered not to have been convicted or arrested.

There is an exception to the statute, however, for purposes of a civil action in which truth is an element of a claim for relief or affirmation defense, which allows a party to apply to the court for an order requiring disclosure of the official records in the case in the interest of justice. Likewise, if a prosecutor or defendant in a case involving sealed records supplies an affidavit showing good cause, the court may order reopening and disclosure of any records sealed for the limited purpose of assisting in the investigation of the moving party.

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Related posts:

1. Chapter 6: State Criminal Procedure

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In Oregon, except in certain very limited circumstances, the juvenile court has exclusive jurisdiction over persons under the age of 18. The Oregon Juvenile Code refers to them as either delinquent “youths” or dependent “children.”

Delinquency Jurisdiction:

Applies to youths who have committed an act which is a violation, or if done by an adult would constitute a violation of a law or ordinance of the United States or a state, county or city.

In certain circumstances, the juvenile court may waive (or transfer) its exclusive jurisdiction over delinquent youth to adult court after hearing in which the state proves that the youth is not amenable to treatment in the juvenile system and that retaining juvenile jurisdiction will serve neither the interests of the youth or society. Additionally, most juvenile motor vehicle, boating, and game violations are routinely waived into adult court.

Youths charged with committing certain serious felonies after April 1, 1995, are automatically tried and sentenced in adult court.

Dependency Jurisdiction:

Applies to children (1) who are beyond the control of their parents, guardian or another person having custody over them, (2) whose behavior, conditions or circumstances are such as to endanger their welfare or the welfare of others, (3) who are dependent for care and support on a public or private child care agency and need the services of the court in planning for their best interests, (4) who have run away from home, (5) who have applied to be emancipated, or (6) whose parent or custodian has either abandoned them, failed to provide for their care or education, has subjected them to cruelty, depravity or unexplained physical injury, or who has failed to provide the care, guidance or protection necessary for their physical, mental or emotional well-being.

Juvenile Procedure -Preliminary Hearing:

Whenever youths and children are taken into protective custody and placed outside of their home in either detention or shelter care, they are entitled to a judicial “preliminary hearing.” Delinquent youths are entitled to a judicial preliminary hearing within 36 hours, (excluding weekends and holidays) of being placed in detention. Dependent children and their parents or guardians are entitled to a hearing within 24 hours from the time children are placed into shelter care.

At this hearing, the court notifies the parties of the allegations and sets the matter for a jurisdictional hearing. A “petition” stating the allegations is filed with the court. Counsel is appointed to represent delinquent youths. Counsel is appointed for dependent children and their parents or guardians. The court also determines where youths and children will reside pending the resolution of the matter that brought them before the court.

Delinquent youths may be held in detention for up to 56 days prior to adjudication when they (1) are alleged to have committed any offense which involves infliction of physical injury to another person, (2) are alleged to have committed any felony crime, (3) are on probation or have been conditionally released and there is probable cause to believe that they have violated either their probation or release conditions, (4) have a history of failing to appear, or (5) are alleged to be in unlawful possession of a firearm, and (1) that there is no less restrictive placement which would ensure their future appearance in court or (2) that their behavior endangers the community. Youths held in detention are entitled to a placement review hearing every 10 days.

The court may order that dependent children be immediately returned to their parents or custodians. The court may also order the children continued in shelter care upon making written findings that continued removal would be in the best interests of the children.

Juvenile Procedure — Jurisdictional Hearing:

Juvenile court jurisdictional hearings are much like a trial. Parties call witnesses and present evidence. The Oregon Rules of Evidence apply.

When a court determines that a child is under the jurisdiction of the court, this means that the child is under the authority or control of the court.

The court may take jurisdiction over delinquent youths upon a finding that the state has proven allegations of delinquent conduct The standard of proof is beyond a reasonable doubt. The juvenile court may take jurisdiction over dependent children upon a finding that allegations of child neglect or unsafe conditions have been proven by a preponderance of evidence.

Juvenile Procedure — Dispositional Hearing:

A dispositional hearing will follow the jurisdictional hearing when the court finds a youth or child is within its jurisdiction. Youths and children may be made wards of the court, placed on probation with conditions including community service and treatment and be ordered to pay restitution to their victims. Under certain circumstances they may be ordered into the custody of the Oregon Youth Authority for residential placement or placement in a state training school

Dependent children may or may not be immediately returned to their parents. Parents may be ordered to complete certain requirements necessary to ensure the safety of the child as a pre-condition for the child’s return to his or her parent’s custody. If the parents fail to remedy the conditions which allowed the court to take jurisdiction, their parental rights may be terminated.

Access to Records:

Juvenile records are generally confidential and are withheld from public inspection. They are, however, open to all parties and their attorneys.

The name, date of birth, and basis for jurisdiction over a juvenile is not confidential. Neither are the date, time, and place of any juvenile court proceeding, nor the crime charged in the case of a delinquent youth.

Juvenile court orders regarding emancipated children and orders regarding the disposition of adjudicated delinquent youths are not confidential.

Access to Hearings:

All juvenile hearings are open unless the court makes findings that public access would over crowd the courtroom or otherwise interfere with or obstruct the proceedings.

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Related posts:

1. Brief summary and citation on access to juvenile courts
2. Media Guide Handbook on Oregon Law and Court System

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In 1999, the Oregon Supreme Court adopted a number of revisions to the state’s Uniform Trial Court Rules that refined the procedures for allowing cameras, both video and still, and audio recording devices to be used by the media in courtrooms. The adoption and revision of Uniform Trial Court Rule 3.180, followed nearly a decade of experimentation with cameras under a temporary Canon of Ethics, the establishment of a court rule and evolutionary revisions recommended by the Oregon Bar-Press-Broadcasters Council.

The text of Uniform Trial Court Rule 3.180 follows:

MEDIA OR OTHER PUBLIC ACCESS COVERAGE OF COURT EVENTS

1. Courtrooms. Upon request or on the court’s own motion, after notice to all parties, public access coverage shall be allowed in any courtroom, except as provided under this rule.
2. There shall be no public access coverage of the following:
   1. Proceedings in chambers.
   2. Any notes or conversations intended to be private including, but not limited to, counsel and judges at the bench and conferences involving counsel and their clients.
   3. Dissolution, juvenile, paternity, adoption, custody, visitation, support, mental commitment, trade secrets, and abuse, restraining and stalking order proceedings.
   4. At a victim’s request, sex offense proceedings.
   5. Voir dire.
   6. Any juror anywhere during the course of the trial in which he or she sits.
   7. Recesses.
3. Limitations on Denial of Public Access Coverage in Courtrooms. A judge may deny a request for or terminate public access coverage only if the judge makes findings of fact on the record setting forth substantial reasons for the denial. The judge may prohibit public access coverage if there is a reasonable likelihood of any of the following:
   1. The public access coverage would interfere with the rights of the parties to a fair trial or would affect the presentation of evidence or outcome of the trial.
   2. Any cost or increased burden resulting from the public access coverage would interfere with the efficient administration of justice.
4. A judge may summarily prohibit public access coverage of a particular witness only if the judge finds on the record that public access coverage would endanger the welfare of the witness or materially hamper the witness’ testimony.
5. Areas Outside of Courtrooms. The presiding judge may allow public access coverage in any area outside the courtroom that is on the courthouse premises and under the control and supervision of the court. Courts are encouraged to designate an area or areas outside the courtroom that is on the courthouse premises for public access coverage. For areas subject to this subsection, each judicial district, by SLR, may establish, for any court location, procedures for obtaining permission for public access coverage that differ from this subsection or may designate locations where public access coverage is allowed or prohibited. SLR 3.181 is reserved for SLR adopted under this subsection.
6. Public Access Coverage Defined. As used in this rule:
   1. “Public access coverage” means coverage by means of any public access coverage equipment.
   2. “Public access coverage equipment” means any of the following in the possession of persons other than the court or the court’s staff: television equipment; still photography equipment; audio, video, or other electronic recording equipment.
7. Equipment and Personnel for Public Access Coverage. The court may limit the location of public access coverage equipment. One pool video camera and one pool still camera and one pool tape recorder shall be permitted.
   1. No public access coverage device shall be operated by more than one person.
   2. No person shall use public access coverage equipment that interferes or distracts from proceedings in the courtroom.
   3. The video camera must be mounted on a tripod or other device or installed in the courtroom. The tripod or other device must not be moved while the proceedings are in session. Video equipment must be screened where practicable or located and operated as directed by the court.
   4. No artificial lighting devices of any kind shall be allowed.
   5. Any pooling arrangement required by limitations on equipment and personnel imposed by the judge or by this rule must be the sole responsibility of the persons seeking public access coverage, without calling upon the judge to mediate any disputes involved therein. In the absence of agreement on such issues by persons seeking public access coverage, the judge may exclude any or all public access coverage.
8. Upon request, any person engaging in public access coverage of a court event or in a courtroom, courthouse, its premises, or environs under the control and supervision of the court must provide to the court, without expense, or to any other person, if the requestor pays actual copying expense, a copy of any public access coverage the person performed.
9. A judge may impose other restrictions or limitations necessary to preserve the solemnity, decorum, and dignity of the court and to protect the parties, witnesses, and jurors. A judge may terminate any or all public access coverage at any point upon finding, based on substantial reasons in the record, that this UTCR or other rules imposed by the judge have been violated.
10. Nothing in this rule is intended to limit the court’s contempt powers.
11. Nothing in this rule shall alter or affect the rules of the Supreme Court promulgated under “Video-Trial Project No. 88-38.” Under that project, the audio-video coverage constitutes the entire record. In all other courts, the record shall be preserved with court reporters or audiotape. Restrictions on releasing audio-video coverage in courts participating in the Video-Trial Project shall be set forth in separate rules.

NOTE: Uniform Trial Court Rule 3.180 was adopted by the entire Oregon Supreme Court, and any changes to the rule will be made only with the consent of the Supreme Court.

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Several institutions exist in Oregon to help assure the rights of free press and fair trial. Their purpose is to protect both— through cooperation and consultation rather than by confrontation.

They include:

Oregon State Bar-Press-Broadcasters Council: This council was established in 1962 by the Oregon State Bar (OSB), the Oregon Newspaper Publishers Association (ONPA) and the Oregon Association of Broadcasters (OAB) to work on matters of common interest to the three professions,

The council is composed of six members appointed by Oregon Association of Broadcasters, six members appointed by the Oregon Newspaper Publishers Association and 12 members appointed by the Oregon State Bar. It operates on a yearly calendar that begins with the September meeting and ends with the May meeting. It meets on the first Saturdays of September, November, February and May, and the meetings are hosted on a rotating basis by the member organizations. If the September meeting date falls on the Labor Day weekend, the September meeting is on the second Saturday.

The council is empowered to act on its own authority, without referring its actions to the parent organizations, but it may not take positions on behalf of its parent organizations.

The chair of the joint council shall rotate annually by its calendar years. For example, in 1997-98, the chair was held by the Oregon State Bar; in 1998-99, the chair was held by the Oregon Newspaper Publishers Association; and in 1999-2000, by the Oregon Association of Broadcasters.

Much of the work of the council is focused on issues of free press and fair trial, but from time to time the joint council organizes and sponsors other activities of mutual benefit to the legal and news professions, such as conferences, seminars and the publication of this handbook.

Any person may bring a matter before the joint council. It can be reached through the central office of any of the three sponsoring organizations: the OSB, ONPA or OAB.

Guidelines for Reporting and Comment on Criminal Proceedings: The first main activity of the joint council was, in 1962, to draft and agree upon a joint statement of principles for news reporting and comment on criminal proceedings, aimed at assuring the public the opportunity to be kept fully informed without violating the rights of any individual.

In 1967 the joint council added to this statement a set of guidelines for reporting of criminal proceedings. These recommendations, often referred to as the ìOregon Bar-Press Guidelines,î are intended to advise reporters, lawyers, law enforcement officials and other involved persons as to what is generally appropriate to say, or not to say, about a criminal proceeding prior to a trial. The guidelines also make recommendations concerning the photographing of criminal defendants.

The guidelines are advisory only. The decision on whether to follow them in a particular case is left to the discretion of the individuals involved. However, they have been approved by the respective conventions of the Oregon State Bar, Oregon Newspaper Publishers Association and Oregon Association of Broadcasters.

The joint council has also established a procedure for dealing with complaints of violations of the bar-press guidelines.  In essence, it calls for the joint council to try to mediate a resolution of the complaint between the parties involved. If this is unsuccessful, the joint council is authorized to appoint a subcommittee to investigate and publish an advisory opinion as to whether a violation of the guidelines has occurred.

Judicial Conference Resolution of 1977: In 1975 and 1976 the joint council considered the constitutional issues raised by judicial restraining orders aimed at limiting news coverage of criminal proceedings, particularly pre-trial proceedings. It proposed a procedure by which a judge, lawyer or journalist who anticipates a possible fair trial-free press conflict in a particular case can attempt to have the issues resolved by voluntary consultation rather than by issuance of a court order. The Oregon Judicial Conference considered and amended the joint councilís draft and then adopted it unanimously on April 20, 1977, as a recommended procedure for Oregon judges to follow.

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