ORS 135.865¹

Effect of failure to comply with discovery requirements

Notes of Decisions

Remedies in this sec­tion for viola­tion of ORS 135.815 (Disclosure to defendant) are in the alternative and are subject to choice by court rather than by de­fense counsel. State v. Hand, 19 Or App 514, 528 P2d 126 (1974), Sup Ct review denied

This sec­tion makes it clear that not every breach of duty imposed by pretrial discovery statutes requires suppression of proffered evidence. State v. Curtis, 20 Or App 35, 530 P2d 520 (1975), Sup Ct review denied

Though presence or absence of prejudice is important factor to be considered by trial court in deciding whether to impose sanc­tion of refusing to receive in evidence ma­te­ri­al that has not been disclosed, this sec­tion does not require existence of prejudice as condi­tion to imposi­tion of that sanc­tion. State v. Wolfe, 21 Or App 717, 536 P2d 555 (1975), aff’d 273 Or 518, 542 P2d 482 (1975); State v. Dyson, 292 Or 26, 636 P2d 961 (1981). But see State v. Mai, 294 Or 269, 656 P2d 315 (1982)

Trial court had discre­tion to suppress testimony of state’s witness where the state violated discovery statutes. State v. Johnson, 26 Or App 651, 554 P2d 624 (1976)

In pros­e­cu­­tion for driving under influence of intoxicants where police of­fi­cer’s report was lost and unavailable for discovery, it was error for court, as sanc­tion, to suppress of­fi­cer’s testimony limited to fact that defendant was driving. State v. Campbell, 44 Or App 3, 604 P2d 1266 (1980), Sup Ct review denied

Where there was nothing in record to show that trial judge considered whether, or to what extent, defendant was prejudiced if in fact state violated discovery statutes, it was improper for trial court to allow defendant’s pretrial mo­tion to dismiss complaint for state’s alleged failure to allow defendant discovery. State v. Mead, 44 Or App 53, 604 P2d 1283 (1980)

Prejudice which resulted from state’s failure to provide defendant with tape recording prior to trial was adequately dispelled when trial court granted defendant 13-day continuance and leave to reopen case. State v. Kersey, 54 Or App 944, 636 P2d 1009 (1981)

Court is re­quired to make inquiry into alleged discovery viola­tion and possible prejudicial effect prior to allowing introduc­tion of evidence. State v. George, 55 Or App 224, 637 P2d 1305 (1981), as modified by 56 Or App 1, 640 P2d 1043 (1982)

Where exculpatory nature of unavailable evidence was speculative and where it would have been cumulative of other evidence produced at trial, trial judge did not abuse his discre­tion in denying mo­tions to suppress and dismiss. State v. Guinn, 56 Or App 412, 642 P2d 312 (1982)

The preclusion sanc­tion of this sec­tion is not inconsistent with the Article I, Sec­tion 11 right to compulsory process of the Oregon Constitu­tion provided that the court finds that the pros­e­cu­­tion is prejudiced by defendant’s failure to comply with the reciprocal discovery statutes and provided further that it appears that no sanc­tion short of preclusion effectively will avoid the prejudice which defendant’s lack of compliance created. State v. Mai, 294 Or 269, 656 P2d 315 (1982); State v. Johanesen, 110 Or App 348, 822 P2d 154 (1991); State v. Fain, 132 Or App 488, 888 P2d 1052 (1995)

It was proper to exclude videotape where trial had been twice postponed, repeated at­tempts by defendant’s attorney to secure copy of videotape were unsuccessful, trial judge ordered copy provided defendant one week prior to scheduled trial date, trial judge expressly concluded that nondisclosure prejudiced defendant and trial judge concluded that district attorney had shown notable lack of diligence in following through on discovery efforts. State v. Kull, 298 Or 38, 688 P2d 1327 (1984)

Law Review Cita­tions

18 WLR 291 (1982)

See also annota­tions under ORS 133.755 in permanent edi­tion.

Notes of Decisions

Copy of letter sent to district court and also to district attorney’s office, entering not guilty plea and stating “by copy of this letter I am demanding reciprocal discovery from the District Attorney’s office,” was insufficient to make formal demand for disclosure of classes of in­for­ma­­tion available under these sec­tions. State v. Sheppard, 32 Or App 345, 573 P2d 1276 (1978), Sup Ct review denied

Specifica­tions, operating instruc­tions and repair and maintenance records for radar device with which arresting of­fi­cer measured defendant’s speed were not discoverable under these sec­tions. State v. Spada, 33 Or App 257, 576 P2d 33 (1978), aff’d286 Or 305, 594 P2d 815 (1979)

These sec­tions afford defendant opportunity to obtain specific and detailed in­for­ma­­tion about state’s theory of case and evidence it intends to produce at trial, and purposes that indict­ments and complaints are designed to serve in crim­i­nal cases are now served as well or better by discovery. State v. Strandquist, 57 Or App 404, 644 P2d 658 (1982), Sup Ct review denied

Nothing in discovery statutes prevents state from initiating grand jury investiga­tion of possible crim­i­nal activities by potential de­fense witnesses. State v. Huffman, 65 Or App 594, 672 P2d 1351 (1983)

Where defendant ap­peals con­vic­­tion and trial court precluded de­fense witness because of alleged discovery viola­tion and state being prejudiced, trial court obligated to explore other alternatives to remedy prejudice before precluding witness from testifying. State v. Gill, 96 Or App 358, 772 P2d 957 (1989)

Law Review Cita­tions

51 OLR 354-369 (1972); 10 WLJ 145-166 (1974); 18 WLR 279 (1982)