§ 20.2 Pretrial

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 20.2 PRETRIAL

§ 20.2-1 Charging Instruments

A crime can be charged by grand jury indictment, an information, or a complaint. ORS 131.005(1). An indictment is found by a grand jury. ORS 132.310; ORS 132.390. An indictment may charge felony charges. The contents of an indictment are listed at ORS 132.550. The indictment must also include the defendant's name, state that the crime was committed within the jurisdiction and that it occurred within the applicable statute of limitations. ORS 132.540. Testimony before the grand jury, with some exceptions, is to be recorded. ORS 132.260.

An information can be used to charge felony charges. If an information charges a felony, the defendant can waive indictment, request a preliminary hearing, or waive preliminary hearing. Oregon Constitution Article VII (Amended), section 5. A complaint cannot charge a felony, but does not need additional procedure to charge a person with a crime. ORS 131.005(3).

An information and complaint require the same contents. ORS 133.015.

§ 20.2-2 Preliminary Hearing and Arraignment

A preliminary hearing must be held within five judicial days of the initial appearance if the defendant is in custody, or within 30 days if out of custody, with extensions allowed for good cause. ORS 135.070(2). Weekends and holidays are included in the calculation; if the last day falls on a legal holiday, Saturday, or a day the court is closed, the date moves to the next available date. ORS 174.120. The defendant has the right to obtain counsel (ORS 135.075), subpoena witnesses (ORS 135.085), and make a statement (ORS 135.095). The rules of evidence apply, except the court may admit hearsay if it determines that not doing so would impose an unreasonable hardship on one of the parties or on a witness, and the testifying witness "furnishes information bearing on the informant's reliability and . . . the means by which the information was obtained." ORS 135.173.

When an accusatory instrument is filed, an arraignment occurs within 36 hours after arrest if the defendant is in custody, or 30 days if cited. ORS 135.010. A delay in arraignment does not automatically result in dismissal of the charge. State v. Nation, 54 Or App 929, 934, 636 P2d 1001 (1981), rev den, 292 Or 568 (1982). At arraignment, the defendant must be read and given a copy of the accusatory instrument, including a list of witnesses if the instrument is an indictment, and asked how the defendant pleads to the charge. ORS 135.020. The defendant must appear personally for felony charges, but may appear by counsel for misdemeanors. ORS 135.030.

§ 20.2-3 Pretrial Release

The court...