NACDL - Oregon - Recording Interrogations Compendium

Oregon - Recording Interrogations Compendium

Information on the policy and history of recording custodial interrogations in Oregon.

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Summary

Oregon has a statute requiring recording of custodial interrogations.

Statute

Citation:  OR. Rev. Stat. § 133.400 (2010).

General rule: Electronic recordings shall be made of custodial interviews of suspects of aggravated homicides, and offenses requiring imposition of mandatory minimum sentences) or adult prosecution of 15-17 year old offenders.  § (1).

Circumstances that excuse recording: Statements made before a grand jury, or made on record in open court, or spontaneously made and not resulting from a custodial interview; statements made during processing in response to a routine question; statements made in another state in compliance with the laws of that state; a custodial interview conducted by a federal law enforcement officer in compliance with federal laws; statements made to a law enforcement agency that employs five or fewer peace officers; custodial interviews in connection with an investigation conducted by a corrections officer, a youth corrections officer, or a staff member of the Oregon State Hospital; a custodial interview for which the state demonstrates good cause for the failure to electronically record the interview. § 2. Good cause includes but is not limited to the defendant’s refusal or unwillingness to have the interview recorded; the failure to record was the result of equipment failure and a replacement device was not immediately available; the operator believed in good faith that the equipment was recording the interview; electronically recording the interview would jeopardize the safety of a person or the identity of a confidential informant; exigent circumstances prevented recording the interview; the officer conducting the interview reasonably believed at the time the interview began that it was conducted in connection with a crime not covered by the statute. § 7(b).

Consequences of an unexcused failure to record:

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 aggravated murder or a crime listed ORS 137.700 or 137.707 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.  § 3(a).

If each of the statements made by the defendant that the state offers into evidence is recorded, the court may not give a cautionary instruction regarding the content of the defendant’s statements. § 3(c).

Oregon Uniform Criminal Jury Instruction No. 1007:

You have heard testimony in this case that [person making statement] made a statement to [name of peace officer] at [location]. The state was legally required to record that statement electronically, but did not. If the state had electronically recorded the statement, you would have been able to hear or see the actual recording of [person making statement] making the statement, rather than hear testimony about a witness’s recollection of what occurred.

An electronic recording of a statement is more reliable evidence of what someone said and how [he / she] said it, than is the testimony of an individual regarding [his / her] recollection of what someone said and how [he / she] said it.

Even though the statement was not electronically recorded, you may consider the testimony regarding the statement for what you deem it to be worth.

Preservation: “A law enforcement agency that creates an electronic recording of a custodial interview shall preserve the recording until the defendant's conviction for the offense is final and all direct, post-conviction relief and habeas corpus appeals are exhausted, or until prosecution of the offense is barred by law.” § 4.