ORS Chapter 45

OREGON STATUTES AND CODES

Chapter 45 — TestimonyGenerally

2009 EDITION

TESTIMONYGENERALLY

EVIDENCEAND WITNESSES

MODESOF TAKING TESTIMONY

45.010 Modesof testimony

45.020 Affidavitdescribed

45.040 Oralexamination described

AFFIDAVITSAND DECLARATIONS IN SUPPORT OF PROVISIONAL REMEDIES

45.130 Productionof affiant or declarant for cross-examination

DEPOSITIONS

(Takingof Deposition)

45.132 Definitionfor ORS 45.135, 45.138 and 45.142

45.135 Whomay not report deposition in civil action

45.138 Dutiesof person recording or reporting deposition

45.142 Recordingor reporting services provided under contract; required disclosures; objectionto reporter

(Useof Deposition)

45.250 Useof deposition

45.260 Introduction,or exclusion, of part of deposition

45.270 Useof deposition in same or other proceedings

INTERPRETERS

45.272 Definitionsfor ORS 45.272 to 45.297

45.273 Policy

45.275 Appointmentof interpreter for non-English-speaking party or witness; substitution; paymentof costs

45.285 Appointmentof interpreter for party or witness with disability; provision of assistivecommunication device

45.288 Appointmentof certified interpreter required; exceptions; disqualifications; code ofprofessional responsibility

45.291 Certificationprogram; establishment by State Court Administrator; rules

45.292 Certificationrequired for use of title or designation “certified court interpreter” or “courtcertified interpreter”

45.294 CourtInterpreter and Shorthand Reporter Certification Account; sources; uses

45.297 Authorityto enter into service contracts

TELEPHONETESTIMONY

45.400 Telephonetestimony; when authorized; notice; payment of costs

PENALTIES

45.900 Penaltiesfor violation of ORS 45.135 or 45.138

MODESOF TAKING TESTIMONY

45.010Modes of testimony.The testimony of a witness is taken by six modes:

(1)Affidavit.

(2)Deposition.

(3)Oral examination.

(4)Telephone examination under ORS 45.400.

(5)Examination before a grand jury by means of simultaneous televisiontransmission under ORS 132.320.

(6)Declaration under penalty of perjury, as described in ORCP 1 E. [Amended by1993 c.425 §2; 1995 c.126 §3; 2003 c.194 §2]

45.020Affidavit described.An affidavit is a written declaration under oath, made without notice to theadverse party.

45.030 [Repealed by1979 c.284 §199]

45.040Oral examination described. An oral examination is an examination in thepresence of the jury or tribunal which is to decide the fact, or act upon it,the testimony being heard by the jury or tribunal from the mouth of thewitness.

45.050 [Amended by1961 c.461 §1; 1979 c.284 §82; repealed by 1981 c.898 §53]

45.110 [Repealed by1979 c.284 §199]

45.120 [Repealed by1979 c.284 §199]

45.125 [Formerly45.180; repealed by 1977 c.404 §2 (194.500 to 194.580 enacted in lieu of45.125)]

AFFIDAVITSAND DECLARATIONS IN SUPPORT OF PROVISIONAL REMEDIES

45.130Production of affiant or declarant for cross-examination. Whenever aprovisional remedy has been allowed upon affidavit or declaration under penaltyof perjury as described in ORCP 1 E, the party against whom it is allowed mayserve upon the party by whom it was obtained a notice, requiring the affiant ordeclarant to be produced for cross-examination before a named officerauthorized to administer oaths. Thereupon the party to whom the remedy wasallowed shall lose the benefit of the affidavit or declaration and allproceedings founded thereon, unless within eight days, or such other time asthe court or judge may direct, upon a previous notice to the adversary of at leastthree days, the party produces the affiant or declarant for examination beforethe officer mentioned in the notice, or some other of like authority, providedfor in the order of the court or judge. Upon production, the affiant ordeclarant may be examined by either party, but a party is not obliged to makethis production of an affiant or a declarant except within the county where theprovisional remedy was allowed. [Amended by 2003 c.194 §3]

DEPOSITIONS

(Takingof Deposition)

45.132Definition for ORS 45.135, 45.138 and 45.142. As used in ORS 45.135, 45.138and 45.142, “deposition” means the taking of testimony for discovery, thetaking of testimony for perpetuation of the testimony and the taking oftestimony in arbitration proceedings. [1999 c.942 §5]

45.135Who may not report deposition in civil action. (1) Adeposition in a civil action may not be stenographically reported by:

(a)A party in the action;

(b)A person with a financial interest in the outcome of the action;

(c)An attorney for a party in the action;

(d)An attorney for a person with a financial interest in the outcome of theaction;

(e)An employee of a party in the action;

(f)An employee of an attorney for a party in the action;

(g)An employee of a person with a financial interest in the outcome of the action;

(h)An employee of an attorney for a person with a financial interest in theoutcome of the action; or

(i)A person related, by affinity or consanguinity within the third degree, to aparty in the action or to a person with a financial interest in the outcome ofthe action.

(2)Any deposition recorded or reported by a person in violation of this sectionmay not be introduced in evidence or used for any other purpose in a civilaction. [1999 c.942 §1]

45.138Duties of person recording or reporting deposition. (1) A personrecording or reporting a deposition is personally responsible for the accurateand complete recording or reporting of the deposition. No person who employs orotherwise engages a person to record or report a deposition may modify orattempt to modify the record or report of the deposition, except to the extentallowed for the correction of errors in the record or report.

(2)Any person employed or otherwise engaged to record or report a deposition mustprovide equal services, and charge equal fee rates, to all parties andattorneys in the proceeding. A person employed or otherwise engaged to recordor report a deposition must distribute copies of the record or report at thesame time to all parties and attorneys who are entitled to receive a copy. Inaddition, a person employed or otherwise engaged to record or report adeposition must:

(a)Disclose the fee rates of the person for services, transcripts and copies tothe attorneys identified in the proceeding and to any party who is notrepresented by an attorney and who is identified in the proceeding; or

(b)Provide a complete, individual accounting of all appearance fees, transcriptfees and any other fees charged for services rendered in the proceeding. [1999c.942 §2]

45.140 [Repealed by1979 c.284 §199]

45.142Recording or reporting services provided under contract; required disclosures;objection to reporter. (1) Before recording or reporting a deposition, theperson recording or reporting the deposition must disclose if the person has acontract to provide reporting services for depositions on a full-time orpart-time basis for any of the following persons:

(a)A party in the action;

(b)A person with a financial interest in the outcome of the action;

(c)An attorney for a party in the action; or

(d)An attorney for a person with a financial interest in the outcome of theaction.

(2)If the person recording or reporting a deposition has a contract to providereporting services for depositions on a full-time or part-time basis for any ofthe persons specified in subsection (1) of this section, any party to theaction may object to the person employed for the purpose of recording orreporting the deposition. Upon objection, the parties shall attempt to agreeupon a different person who shall record or report the deposition. If theparties cannot reach agreement, any of the parties may move the court toappoint an independent person who shall record or report the deposition.

(3)A party that objects to a person employed for the purpose of recording orreporting a deposition in the manner provided by this section is not subject toany penalty or sanction for making the objection and is not required to pay anyfee of the person objected to.

(4)This section does not apply to contracts for reporting services for a singledeposition, case or incident.

(5)This section does not apply to a person who records or reports depositions fora public body, as defined in ORS 30.260, or for a federal agency or anyinstrumentality of the federal government. [1999 c.942 §4]

45.150 [Repealed by1955 c.611 §13]

45.151 [1955 c.611 §1;repealed by 1979 c.284 §199]

45.160 [Repealed by1955 c.611 §13]

45.161 [1955 c.611 §2;repealed by 1979 c.284 §199]

45.170 [Repealed by1955 c.611 §13]

45.171 [1955 c.611 §3;repealed by 1979 c.284 §199]

45.180 [Renumbered45.125]

45.181 [1955 c.611 §5;repealed by 1977 c.358 §12]

45.185 [1959 c.354 §1;1977 c.358 §6; repealed by 1979 c.284 §199]

45.190 [1955 c.611 §6;1977 c.358 §7; repealed by 1979 c.284 §199]

45.200 [1955 c.611 §7;repealed by 1979 c.284 §199]

45.210 [Repealed by1955 c.611 §13]

45.220 [Repealed by1955 c.611 §13]

45.230 [Repealed by1979 c.284 §199]

45.240 [Repealed by1979 c.284 §199]

(Useof Deposition)

45.250Use of deposition.(1) At the trial or upon the hearing of a motion or an interlocutoryproceeding, any part or all of a deposition, so far as admissible under therules of evidence, may be used against any party who was present or representedat the taking of the deposition or who had due notice thereof, in accordancewith any of the following provisions of this subsection:

(a)Any deposition may be used by any party for the purpose of contradicting orimpeaching the testimony of a deponent as a witness.

(b)The deposition of a party, or of anyone who at the time of taking thedeposition was an officer, director or managing agent of a public or privatecorporation, partnership or association that is a party, may be used by anadverse party for any purpose.

(2)At the trial or upon the hearing of a motion or an interlocutory proceeding,any part or all of a deposition, so far as admissible under the rules ofevidence, may be used against any party for any purpose, if the party waspresent or represented at the taking of the deposition or had due noticethereof, and if the court finds that:

(a)The witness is dead;

(b)The witness is unable to attend or testify because of age, sickness, infirmityor imprisonment;

(c)The party offering the deposition has been unable to procure the attendance ofthe witness by subpoena;

(d)Upon application and notice, such exceptional circumstances exist as to make itdesirable, in the interest of justice and with due regard to the importance ofpresenting the testimony of witnesses orally in open court, to allow thedeposition to be used; or

(e)The deposition was taken in the same proceeding pursuant to ORCP 39 I.

(3)For the purpose of subsection (2)(c) of this section, the failure of a party toserve a witness at the time of deposition with a subpoena that requires theappearance of the witness at trial or other hearing does not constitutesufficient grounds to deny the use of the deposition of that witness at thetrial or other hearing without further showing of a lack of diligence on thepart of the party offering the deposition. [1955 c.611 §§8,9; 1979 c.284 §83;1987 c.275 §1; 1989 c.980 §4; 2001 c.234 §1; 2007 c.71 §12]

45.260Introduction, or exclusion, of part of deposition. If only part ofa deposition is offered in evidence by a party, an adverse party may requirethe party to introduce all of it which is relevant to the part introduced andany party may introduce any other parts, so far as admissible under the rulesof evidence. When any portion of a deposition is excluded from a case, so muchof the adverse examination as relates thereto is excluded also. [1955 c.611 §10]

45.270Use of deposition in same or other proceedings. Substitution ofparties shall not affect the right to use the depositions previously taken; andwhen an action, suit or proceeding has been dismissed and another action, suitor proceeding involving the same subject matter is afterward brought betweenthe same parties or their representatives or successors in interest, anydeposition lawfully taken and duly filed in the former action, suit orproceeding may be used in the latter as if originally taken therefor, and isthen to be deemed the evidence of the party reading it. [1955 c.611 §11]

INTERPRETERS

45.272Definitions for ORS 45.272 to 45.297. As used in ORS 45.272 to 45.297:

(1)“Adjudicatory proceeding” means:

(a)Any contested case hearing conducted under ORS chapter 183; or

(b)Any hearing conducted by an agency in which the individual legal rights, dutiesor privileges of specific parties are determined if that determination issubject to judicial review by a circuit court or by the Court of Appeals.

(2)“Agency” has that meaning given in ORS 183.310. [1999 c.1041 §3]

45.273Policy.(1) It is declared to be the policy of this state to secure the constitutionalrights and other rights of persons who are unable to readily understand orcommunicate in the English language because of a non-English-speaking culturalbackground or a disability, and who as a result cannot be fully protected inadministrative and court proceedings unless qualified interpreters areavailable to provide assistance.

(2)It is the intent of the Legislative Assembly in passing ORS 45.272 to 45.297 toprovide a procedure for the qualification and use of court interpreters.Nothing in ORS 45.272 to 45.297 abridges the rights or obligations of partiesunder other laws or court rules. [1993 c.687 §1; 1999 c.1041 §1]

45.275Appointment of interpreter for non-English-speaking party or witness; substitution;payment of costs.(1) The court shall appoint a qualified interpreter in a civil or criminalproceeding, and a hearing officer or the designee of a hearing officer shallappoint a qualified interpreter in an adjudicatory proceeding, whenever it isnecessary:

(a)To interpret the proceedings to a non-English-speaking party;

(b)To interpret the testimony of a non-English-speaking party or witness; or

(c)To assist the court, agency or hearing officer in performing the duties andresponsibilities of the court, agency or hearing officer.