Chapter 45 — Testimony Generally

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2001 EDITION

MODES OF TAKING TESTIMONY

45.010 Testimony taken in five modes. The testimony of a witness is taken by five 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 television transmission under ORS 132.320. [Amended by 1993 c.425 §2; 1995 c.126 §3]

45.020 Affidavit defined. An affidavit is a written declaration under oath, made without notice to the adverse party.

45.030 [Repealed by 1979 c.284 §199]

45.040 Oral examination defined. An oral examination is an examination in the presence 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 the witness.

45.050 [Amended by 1961 c.461 §1; 1979 c.284 §82; repealed by 1981 c.898 §53]

45.110 [Repealed by 1979 c.284 §199]

45.120 [Repealed by 1979 c.284 §199]

45.125 [Formerly 45.180; repealed by 1977 c.404 §2 (194.500 to 194.580 enacted in lieu of 45.125)]

AFFIDAVITS IN SUPPORT OF PROVISIONAL REMEDIES

45.130 Production of affiant for cross-examination. Whenever a provisional remedy has been allowed upon affidavit, the party against whom it is allowed may serve upon the party by whom it was obtained a notice, requiring the affiant to be produced for cross-examination before a named officer authorized to administer oaths. Thereupon the party to whom the remedy was allowed shall lose the benefit of the affidavit and all proceedings founded thereon, unless within eight days, or such other time as the court or judge may direct, upon a previous notice to the adversary of at least three days, the party produces the affiant for examination before the officer mentioned in the notice, or some other of like authority, provided for in the order of the court or judge. Upon production, the affiant may be examined by either party; but a party is not obliged to make this production of a witness except within the county where the provisional remedy was allowed.

DEPOSITIONS

(Taking of Depositions)

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

45.135 Who may report deposition in civil action. (1) A deposition 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;

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

(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 the outcome of the action; or

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

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

45.138 Duties of person recording or reporting deposition. (1) A person recording or reporting a deposition is personally responsible for the accurate and complete recording or reporting of the deposition. No person who employs or otherwise engages a person to record or report a deposition may modify or attempt to modify the record or report of the deposition, except to the extent allowed for the correction of errors in the record or report.

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

(a) Disclose the fee rates of the person for services, transcripts and copies to the attorneys identified in the proceeding and to any party who is not represented by an attorney and who is identified in the proceeding; or

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

45.140 [Repealed by 1979 c.284 §199]

45.142 Recording or reporting services provided under contract; required disclosures; objection to reporter. (1) Before recording or reporting a deposition, the person recording or reporting the deposition must disclose if the person has a contract to provide reporting services for depositions on a full-time or part-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;

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

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

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

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

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

45.150 [Repealed by 1955 c.611 §13]

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

45.160 [Repealed by 1955 c.611 §13]

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

45.170 [Repealed by 1955 c.611 §13]

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

45.180 [Renumbered 45.125]

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 by 1955 c.611 §13]

45.220 [Repealed by 1955 c.611 §13]

45.230 [Repealed by 1979 c.284 §199]

45.240 [Repealed by 1979 c.284 §199]

(Use of Deposition)

45.250 Use of deposition. (1) 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 of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any of the following provisions of this subsection:

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

(b) The deposition of a party, or of anyone who at the time of taking the deposition was an officer, director or managing agent of a public or private corporation, partnership or association which is a party, may be used by an adverse 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 of evidence, may be used against any party for any purpose, if the party was present or represented at the taking of the deposition or had due notice thereof, and if the court finds that:

(a) The witness is dead; or

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

(d) Upon application and notice, such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition 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 to serve a witness at the time of deposition with a subpoena that requires the appearance of the witness at trial or other hearing does not constitute sufficient grounds to deny the use of the deposition of that witness at the trial or other hearing without further showing of a lack of diligence on the part 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]

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

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

INTERPRETERS

45.272 Definitions 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 183.310 to 183.550; or

(b) Any hearing conducted by an agency in which the individual legal rights, duties or privileges of specific parties are determined if that determination is subject 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]

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

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

45.275 Appointment 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 criminal proceeding, and a hearing officer or the designee of a hearing officer shall appoint a qualified interpreter in an adjudicatory proceeding, whenever it is necessary:

(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 and responsibilities of the court, agency or hearing officer.

(2) No fee shall be charged to any person for the appointment of an interpreter to interpret testimony of a non-English-speaking party or witness, or to assist the court, agency or hearing officer in performing the duties and responsibilities of the court, agency or hearing officer. No fee shall be charged to a non-English-speaking party who is unable to pay for the appointment of an interpreter to interpret the proceedings to the non-English-speaking party. No fee shall be charged to any person for the appointment of an interpreter if appointment is made to determine whether the person is unable to pay or non-English-speaking for the purposes of this section.

(3) A non-English-speaking party shall be considered unable to pay for an interpreter for the purposes of this section if:

(a) The party makes a verified statement and provides other information in writing under oath showing financial inability to pay for a qualified interpreter, and provides any other information required by the court or agency concerning the inability to pay for such an interpreter; and

(b) It appears to the court or agency that the party is in fact unable to pay for a qualified interpreter.

(4) Fair compensation for the services of an interpreter appointed under this section shall be paid:

(a) By the county, subject to the approval of the terms of the contract by the governing body of the county, in a proceeding in a county or justice court.

(b) By the city, subject to the approval of the terms of the contract by the governing body of the city, in a proceeding in a municipal court.

(c) By the state in a proceeding in a circuit court. Amounts payable by the state shall be from funds available to the court other than the State Court Indigent Defense Account established by ORS 151.465, except that fees of an interpreter necessary for the purpose of communication between appointed counsel and a client or witness in a criminal case shall be payable from that account.

(d) By the agency in an adjudicatory proceeding.

(5) Where a party or witness is dissatisfied with the interpreter selected by the court, the hearing officer or the designee of the hearing officer, the party or witness may use any certified interpreter. However, if the substitution of another interpreter will delay the proceeding, good cause must be shown for any substitution other than a substitution made by the judge or hearing officer. Any party may object to use of any interpreter for good cause. Unless the court, hearing officer or the designee of the hearing officer has substituted interpreters for cause, the party using any interpreter other than the interpreter originally appointed by the court, hearing officer or the designee of the hearing officer shall bear any additional costs beyond the amount required to pay the original interpreter.

(6) A court may allow as costs reasonable expenses incurred by a party in employing the services of an interpreter in civil proceedings in the manner provided by ORCP 68.

(7) A court, a hearing officer or the designee of a hearing officer shall require any person serving as an interpreter for the court or agency to state the person’s name on the record and whether the person is certified under ORS 45.291. If the person is certified under ORS 45.291, the interpreter need not make the oath or affirmation required by ORS 40.325 or submit the interpreter’s qualifications on the record. If the person is not certified under ORS 45.291, the interpreter must make the oath or affirmation required by ORS 40.325 and submit the interpreter’s qualifications on the record.

(8) For the purposes of this section:

(a) "Non-English-speaking person" means a person who, by reason of place of birth or culture, speaks a language other than English and does not speak English with adequate ability to communicate effectively in the proceedings.

(b) "Qualified interpreter" means a person who is readily able to communicate with the non-English-speaking person and who can orally transfer the meaning of statements to and from English and the language spoken by the non-English-speaking person. A qualified interpreter must be able to interpret in a manner that conserves the meaning, tone, level, style and register of the original statement, without additions or omissions. "Qualified interpreter" does not include any person who is unable to interpret the dialect, slang or specialized vocabulary used by the party or witness. [1991 c.750 §2; 1993 c.687 §8; 1995 c.273 §16; 1997 c.872 §18; 1999 c.1041 §4; 2001 c.242 §1]

Note: The amendments to 45.275 by section 66, chapter 962, Oregon Laws 2001, become operative October 1, 2003. See section 15, chapter 962, Oregon Laws 2001. The text that is operative on and after October 1, 2003, is set forth for the user’s convenience.

45.275. (1) The court shall appoint a qualified interpreter in a civil or criminal proceeding, and a hearing officer or the designee of a hearing officer shall appoint a qualified interpreter in an adjudicatory proceeding, whenever it is necessary: