ORS 136.440
Testimony of accomplice

  • corroboration
  • “accomplice” defined

(1)

A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence that tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances of the commission.

(2)

As used in this section, an “accomplice” means a witness in a criminal action who, according to the evidence adduced in the action, is criminally liable for the conduct of the defendant under ORS 161.155 (Criminal liability for conduct of another) and 161.165 (Exemptions to criminal liability for conduct of another), or, if the witness is a juvenile, has committed a delinquent act, which, if committed by an adult, would make the adult criminally liable for the conduct of the defendant. [Formerly 136.550]

Source: Section 136.440 — Testimony of accomplice; corroboration; “accomplice” defined, https://www.­oregonlegislature.­gov/bills_laws/ors/ors136.­html.

See also annotations under ORS 136.550 in permanent edition.

Notes of Decisions

This section does not make evidence of apparently innocent post-crime association inadmissible but merely requires additional corroboration. State v. Marling, 19 Or App 811, 529 P2d 957 (1974), Sup Ct review denied

Testimony in murder trial by witnesses other than accomplice, that they had cooperated with defendant in formulating plans to dispose of victim but had disassociated themselves from attempts to carry out those plans, was sufficient corroboration of accomplice’s testimony. State v. Addicks, 30 Or App 249, 566 P2d 1212 (1977), Sup Ct review denied

Slingshot found on defendant’s property and BBs found in defendant’s motel room were sufficient items to connect defendant with commission of offense under this section and to provide corroboration of accomplice testimony. State v. Schoen, 34 Or App 105, 578 P2d 429 (1978), Sup Ct review denied

In trial for conspiracy to murder, evidence that, inter alia, defendant had vouched for hired killer and that hired killer met with coconspirator and received payment, was sufficient to corroborate accomplice testimony. State v. Curran, 38 Or App 351, 590 P2d 268 (1979), Sup Ct review denied

Where dispute whether witness is accomplice witness exists in jury trial, burden is on defendant to show jury probable cause to believe witness is accomplice. State v. Hull, 286 Or 511, 595 P2d 1240 (1979)

Accomplice witness is “criminally liable” for conduct of defendant if probable cause exists to charge witness with crime. State v. Hull, 286 Or 511, 595 P2d 1240 (1979)

Evidence that, inter alia, parts of stolen vehicle were found on defendant’s property, vehicle’s camper was burned on his property, and photograph of defendant showed him standing, with welding equipment, next to stolen vehicle, which was subsequently altered from its original form, was sufficient to corroborate testimony of two accomplices. State v. Rose, 45 Or App 879, 609 P2d 875 (1980)

For jury to determine whether witness is accomplice, court must instruct jury on factual elements that would suffice to create liability, then jury must determine whether evidence would provide probable cause to charge witness. State v. Shaw, 68 Or App 693, 684 P2d 7 (1984)

Mere presence at scene, even with knowledge of commission of crime, is not enough to make one accomplice under this section. State v. Crawford, 90 Or App 242, 752 P2d 316 (1988), Sup Ct review denied

State did not need to produce evidence to corroborate testimony of witness where witness was not accomplice to crimes committed before witness became involved and where witness was not accomplice to conspiracy because witness was not liable for defendant’s conduct where defendant had entered into conspiracy with another person before witness became involved. State v. McDonnell, 98 Or App 134, 778 P2d 978 (1989), Sup Ct review denied

Considering that corroborative evidence need only tend to connect defendant with crime, may be circumstantial and need not be with respect to every material fact necessary to sustain conviction, extensive evidence in record was sufficient to permit jury to find that accomplice’s testimony was corroborated. State v. Walton, 311 Or 223, 809 P2d 81 (1991)

Where accomplice-witness-as-matter-of-law instruction benefits defendant, instruction does not amount to directed verdict that defendant is guilty. State v. Oatney, 335 Or 276, 66 P3d 475 (2003)

Where no dispute exists that crime was committed, accomplice-witness-as-matter-of-law instruction does not deprive defendant of right to jury trial on each element alleged in indictment. State v. Oatney, 335 Or 276, 66 P3d 475 (2003)

Testimony of accomplice was insufficient to convict defendant where supporting evidence did not connect defendant to commission of crime without reference to accomplice testimony. State v. Riley, 365 Or 44, 443 P3d 610 (2019)

COMPLETED CITATIONS: State v. Graf, 6 Or App 243, 487 P2d 92 (1971), Sup Ct review denied; State v. Banks, 6 Or App 47, 486 P2d 584 (1971); State v. Wheelhouse, 6 Or App 151, 486 P2d 1292 (1971)

136.001
Right to jury trial
136.005
Challenge to jury panel
136.010
When issue of fact arises
136.030
How issues are tried
136.040
When presence of defendant is necessary
136.050
Reasonable doubt as to degree of crime committed by defendant
136.060
Jointly charged defendants to be tried jointly
136.070
Postponement of trial
136.080
Deposition of witness as condition of postponement
136.090
Procedure for taking deposition
136.100
Filing and use of deposition
136.110
Commitment of defendant after release
136.120
Dismissal when prosecutor unready for trial
136.145
Setting of court dates when presence of victim required
136.210
Jury number
136.220
Challenge for implied bias
136.230
Peremptory challenges
136.240
Challenge of accepted juror
136.250
Taking of challenges
136.260
Selection of alternate jurors
136.270
Oath, conduct and attendance of alternate jurors at trial
136.280
Substitution of alternate for discharged juror
136.285
Priority in trial schedule for defendants in custody
136.290
Limit on custody of defendant prior to trial
136.295
Application of ORS 136.290
136.300
Time limit on appeals to circuit court
136.310
Function of court
136.320
Function of jury
136.325
Jury not to be informed of and not to consider punishment that may be imposed
136.330
Trial procedure
136.345
When attendance of woman officer is required
136.347
Appointment, duties and compensation of woman officer
136.415
Presumption of innocence
136.420
Testimony to be given orally in court
136.425
Confessions and admissions
136.427
Confessions
136.430
Civil laws of evidence in criminal trials
136.432
Limitation on court’s authority to exclude relevant evidence
136.433
Proving previous conviction
136.434
Challenge to validity of previous conviction
136.435
Admissibility of evidence from felony defendant not informed as required under ORS 135.070
136.437
Use of evidence in prosecution of prostitution offense
136.440
Testimony of accomplice
136.445
Motion for acquittal
136.447
Medical records
136.450
Number of jurors required for verdict
136.455
General verdict on plea of not guilty
136.460
Verdict where crime consists of degrees
136.465
Verdict where crime or attempt included within charge
136.470
Conviction or acquittal of one or more of several defendants
136.475
Verdict as to some of several defendants
136.480
Reconsideration of verdict when jury makes mistake as to law
136.485
Reconsideration of verdict which is not general verdict
136.490
Discharge of defendant upon acquittal
136.495
Proceedings after adverse general verdict
136.500
Motion in arrest of judgment
136.505
Effect of allowance of motion
136.515
Order when evidence shows guilt
136.525
Order when evidence is insufficient
136.535
New trial
136.555
Subpoena defined
136.557
Issuance of subpoena by magistrate for witnesses at preliminary examination
136.563
Issuance of subpoena by district attorney for witnesses before grand jury
136.565
Issuance of subpoena by district attorney for witnesses at trial
136.567
Issuance of subpoena for witnesses for defendant
136.570
Application for subpoenas for more than 10 witnesses
136.575
Forms of subpoenas
136.580
Subpoenas when books, papers or documents are required
136.583
Seizure or production of papers, documents or records from recipient
136.585
By whom subpoena is served
136.595
How subpoena is served
136.600
Certain civil procedures applicable in criminal context
136.602
Witness fees payable by county
136.603
Payment of witness who is from outside state or is indigent
136.608
Application procedure
136.611
Court action upon receipt of application
136.612
Hearing
136.614
Witness held in detention facility
136.616
Deposition to perpetuate testimony
136.617
Motion to compel witness who may be incriminated to testify
136.619
Immunity of witness compelled to testify
136.623
Definitions
136.625
Where witness material to proceeding in another state is in this state
136.627
Where witness material to proceeding in this state is in another state
136.633
Immunity of witness from arrest or service of process
136.635
Construction of ORS 136.623 to 136.637
136.637
Short title
136.643
Defendant as witness
136.645
Codefendant as witness
136.655
Spouse as witness
136.675
Conditions for use of testimony of persons subjected to hypnosis
136.685
Required explanations by law enforcement personnel to hypnosis subject
136.695
Evidence obtained in violation of ORS 136.675 or 136.685 inadmissible
136.760
Definitions for ORS 136.765 to 136.785
136.765
Notice to defendant
136.770
Enhancement fact related to offense
136.773
Enhancement fact related to defendant
136.776
Effect of waiver of right to jury trial
136.780
Evidence
136.785
Burden of proof
136.790
Notice to defendant upon remand
136.792
Jury upon remand
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