ORS 133.402
Recording of custodial interviews of juveniles


(1)

Intentionally left blank —Ed.

(a)

A custodial interview inside a law enforcement facility that is conducted by a peace officer, a school resource officer or a special campus security officer shall be electronically recorded if the custodial interview is conducted with a person under 18 years of age in connection with an investigation into a misdemeanor or a felony, or an allegation that the person being interviewed committed an act that, if committed by an adult, would constitute a misdemeanor or a felony.

(b)

A custodial interview anywhere outside of a law enforcement facility that is conducted by a peace officer, a school resource officer or a special campus security officer shall be electronically recorded if:

(A)

The custodial interview is conducted with a person under 18 years of age in connection with an investigation into a misdemeanor or a felony, or an allegation that the person being interviewed committed an act that, if committed by an adult, would constitute a misdemeanor or a felony; and

(B)

A video camera is worn upon the officer’s person.

(2)

Subsection (1) of this section does not apply to:

(a)

A statement made before a grand jury;

(b)

A statement made on the record in open court;

(c)

A custodial interview conducted in another state in compliance with the laws of that state;

(d)

A custodial interview conducted by a federal law enforcement officer in compliance with the laws of the United States;

(e)

A statement that was spontaneously volunteered and did not result from a custodial interview;

(f)

A statement made during custody processing in response to a routine question;

(g)

A law enforcement agency that employs five or fewer peace officers;

(h)

A custodial interview conducted in connection with an investigation carried out by a youth corrections officer or a staff member of the Oregon State Hospital in the performance of the officer’s or staff member’s official duties of treatment, custody, control or supervision of individuals committed to or confined in a place of incarceration or detention;

(i)

A custodial interview for which the state demonstrates good cause for the failure to electronically record the custodial interview; or

(j)

A custodial interview if the defendant’s or youth’s age was unknown to the officer or would not have been objectively apparent to a reasonable officer.

(3)

Intentionally left blank —Ed.

(a)

If the state offers an unrecorded statement made under the circumstances described in subsection (1) of this section in a criminal proceeding alleging the commission of a misdemeanor or a felony, or an allegation that a person being interviewed committed an act that, if committed by an adult, would constitute a misdemeanor or a felony, and the state is unable to demonstrate, by a preponderance of the evidence, that an exception described in subsection (2) of this section applies, upon the request of the defendant, the court shall instruct the jury regarding the legal requirement described in subsection (1) of this section and the superior reliability of electronic recordings when compared with testimony about what was said and done.

(b)

The court may not exclude the defendant’s statement or dismiss criminal charges as a result of a violation of this section.

(c)

If each of the statements made by the defendant that the state offers into evidence is recorded, the court may not give a cautionary jury instruction regarding the content of the defendant’s statements.

(4)

If the state offers an unrecorded statement made under the circumstances described in subsection (1) of this section in a juvenile delinquency proceeding alleging the commission of an act that, if committed by an adult would constitute a misdemeanor or a felony, and the state is unable to demonstrate, by a preponderance of the evidence, that an exception described in subsection (2) of this section applies, the court shall consider the superior reliability of electronic recordings when compared with testimony about what was said and done when determining the evidentiary value of the statement.

(5)

A law enforcement agency that creates an electronic recording of a custodial interview shall preserve the recording until the defendant’s conviction or youth’s adjudication for the offense is final and all direct, post-conviction relief and habeas corpus appeals are exhausted, or until the prosecution of the offense is barred by law.

(6)

The state shall provide an electronic copy of a defendant’s or youth’s custodial interview to a defendant or youth in accordance with ORS 135.805 (Applicability) to 135.873 (Protective orders). Providing an electronic copy of the custodial interview to the defendant or youth constitutes compliance with ORS 135.815 (Disclosure to defendant) (1)(b), and the state is not required to provide the defendant or youth with a transcript of the contents of the custodial interview. Unless the court orders otherwise, the defendant’s or youth’s attorney may not copy, disseminate or republish the electronic copy of the custodial interview, except to provide a copy to an agent of the defendant’s or youth’s attorney for the limited purpose of case preparation.

(7)

An electronic recording of a custodial interview, and any transcription of the recording, that is certified as containing a complete recording, or a complete transcription, of the entirety of the custodial interview, from the advisement of constitutional rights to the conclusion of the custodial interview, is admissible in any preadjudication or post-adjudication hearing for the purpose of establishing the contents of a statement made in the recording and the identity of the person who made the statement, if the statement is otherwise admissible. A certification that complies with this subsection satisfies the requirements of ORS 40.505 (Rule 901. Requirement of authentication or identification) and 132.320 (Consideration of evidence) for the recording or transcription. This subsection does not prohibit a party from calling a witness to testify regarding the custodial interview.

(8)

As used in this section:

(a)

“Custodial interview” means an interview in which the person questioned is in custody and is required to be advised of the person’s constitutional rights.

(b)

“Good cause” includes, but is not limited to, situations in which:

(A)

The defendant or youth refused, or expressed an unwillingness, to have the custodial interview electronically recorded;

(B)

The failure to electronically record the custodial interview was the result of equipment failure and a replacement device was not immediately available;

(C)

The person operating the recording equipment believed, in good faith, that the equipment was recording the custodial interview;

(D)

Electronically recording the custodial interview would jeopardize the safety of any person or the identity of a confidential informant;

(E)

Exigent circumstances prevented the recording of the custodial interview; or

(F)

The person conducting the custodial interview did not possess a wearable video camera to electronically record the custodial interview outside of a law enforcement facility.

(c)

“Law enforcement facility” means a courthouse, building or premises that is a place of operation for a municipal police department, county sheriff’s office or other law enforcement agency at which persons may be detained in connection with a juvenile delinquency petition or criminal charge.

(d)

“Peace officer” has the meaning given that term in ORS 133.005 (Definitions for ORS 133.005 to 133.400 and 133.410 to 133.450).

(e)

“School resource officer” means a peace officer who is assigned to a school.

(f)

“Special campus security officer” means a special campus security officer described in ORS 352.118 (Establishment of police department). [2019 c.216 §2]
Note: 133.402 (Recording of custodial interviews of juveniles) was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 133 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

Source: Section 133.402 — Recording of custodial interviews of juveniles, https://www.­oregonlegislature.­gov/bills_laws/ors/ors133.­html.

133.005
Definitions for ORS 133.005 to 133.400 and 133.410 to 133.450
133.007
Sufficiency of information or complaint
133.015
Contents of information or complaint
133.020
Magistrate defined
133.030
Who are magistrates
133.033
Peace officer
133.035
Ex parte emergency protective orders
133.055
Criminal citation
133.060
Cited person to appear before magistrate
133.065
Service of criminal citation
133.066
Criminal citations generally
133.068
Contents of criminal citation issued without complaint
133.069
Contents of criminal citation issued with complaint
133.070
Criminal citation where arrest without warrant is authorized for ordinance violation
133.073
Electronic filing of criminal citation
133.076
Failure to appear on criminal citation
133.110
Issuance
133.120
Authority to issue warrant
133.140
Content and form of warrant
133.220
Who may make arrest
133.225
Arrest by private person
133.235
Arrest by peace officer
133.239
Arrest by parole and probation officer
133.245
Arrest by federal officer
133.310
Authority of peace officer to arrest without warrant
133.315
Liability of peace officer making arrest
133.318
Providing false foreign restraining order
133.340
Authority to order arrest for crime committed in presence of magistrate
133.360
Arrests on warrant or order transmitted by telegraph
133.375
Definitions for ORS 133.375 to 133.381
133.377
Arrest of persons for cruelty to animals
133.379
Duty of peace officer to arrest and prosecute violators of cruelty to animals laws
133.381
Procedure in arrests for violation of certain restraining orders
133.400
Recording of custodial interviews of adults
133.402
Recording of custodial interviews of juveniles
133.403
Voluntariness of statement by juvenile during custodial interview
133.405
Definitions for ORS 133.405 to 133.408
133.407
Immunities and liabilities
133.408
Application of ORS 133.405 and 133.407
133.410
Short title
133.420
Definitions for ORS 133.410 to 133.440
133.430
Authority to make arrest in fresh pursuit
133.440
Proceedings following arrest in fresh pursuit
133.450
Return of arrest warrant
133.455
Receipts for property taken from person in custody
133.460
Forfeiture of conveyances used unlawfully to conceal or transport stolen property
133.465
Seizure of stolen animals or other property being transported
133.470
Sale of seized property
133.475
Notice to owner
133.485
Perishable property
133.495
Retention of property to answer order of court
133.515
Interpreter to be made available to person with a disability
133.518
Duty of peace officer to request emergency medical services
133.525
Definitions for ORS 133.525 to 133.703
133.535
Permissible objects of search and seizure
133.537
Protection of things seized
133.539
Obtaining information from portable electronic devices
133.545
Issuance of search warrant
133.555
Hearing
133.565
Contents of search warrant
133.575
Execution of warrant
133.595
List of things seized
133.605
Use of force in executing warrants
133.615
Return of the warrant
133.617
“Mobile tracking device” defined
133.619
Execution of warrant authorizing mobile tracking device
133.621
Medical procedures
133.623
Handling and disposition of things seized
133.633
Motion for return or restoration of things seized
133.643
Ground for motion for return or restoration of things seized
133.653
Postponement of return or restoration
133.663
Disputed possession rights
133.673
Motions to suppress evidence
133.693
Challenge to truth of evidence
133.703
Identity of informants
133.705
Definitions for ORS 133.705 to 133.717
133.707
Custodian’s obligation to preserve biological evidence
133.709
Notice of intent to dispose
133.713
Inventory
133.715
Order
133.717
Provision of notice or order to defendant
133.721
Definitions for ORS 41.910 and 133.721 to 133.739
133.723
Records confidential
133.724
Order for interception of communications
133.726
Interception of oral communication without order
133.727
Proceeding under expired order prohibited
133.729
Recording intercepted communications
133.731
Inventory
133.733
Procedure for introduction as evidence
133.735
Suppression of intercepted communications
133.736
Suppression of intercepted oral communication
133.737
Disclosure and use of intercepted communications
133.739
Civil damages for willful interception, disclosure or use of communications
133.741
Law enforcement agency policies and procedures regarding video and audio recordings
133.743
Definitions for ORS 133.743 to 133.857
133.745
Determination of security requirements to carry out extradition
133.747
Fugitives from other states
133.753
Form of demand
133.757
Investigation of demand and report
133.763
Facts documents must show
133.767
Extradition of person not present in demanding state at time of commission of crime
133.773
Governor’s warrant of arrest
133.777
Execution of the warrant
133.783
Authority of arresting officer to command assistance
133.787
Rights of arrested person
133.793
Penalty for disobedience to ORS 133.787
133.797
Confinement of prisoner
133.803
Arrest prior to requisition
133.805
Arrest without warrant
133.807
Commitment to await arrest on requisition
133.809
Release
133.813
Proceedings in absence of arrest under executive warrant within specified time
133.815
Forfeiture
133.817
Persons under criminal prosecution in this state at time of requisition
133.823
When guilt of accused may be inquired into
133.825
Governor may recall warrant
133.827
Warrant to agent to return fugitive from this state
133.833
Application for requisition
133.835
Extradition of persons imprisoned or awaiting trial in another state or who have left the demanding state under compulsion
133.837
Appointment of agent to return fugitive from this state who waives extradition
133.839
Immunity from civil process in certain civil cases
133.843
Written waiver of extradition proceedings
133.845
Nonwaiver by this state
133.847
Trial of extradited person for other crimes
133.853
Construction of Act
133.855
Short title
133.857
Payment of agent’s expenses
133.865
Arrest and Return Account
133.870
Release of booking photo by law enforcement agency
133.875
Removal of booking photo from publication or website
133.992
Penalties
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