Chapter 6: State Criminal Procedure

Chapter 6: State Criminal Procedure

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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