Or. Admin. R. 309-120-0240

Current through Register Vol. 63, No. 6, June 1, 2024

Section 309-120-0240 - Witnesses

(1) The hearings officer shall direct the scheduling and taking of testimony of witnesses at the hearing. Witnesses may include adults in custody, employees, or other persons. Testimony may be taken in person, by telephone, or by written report or statement.

(2) Except as provided in this subsection, a hearings officer must provide an adult in custody or his or her representative with the opportunity to call witnesses to testify before the hearings officer and to confront and cross-examine witnesses called by the state. The hearings officer may deny the opportunity provided in this rule upon a finding of good cause. Good cause includes, but is not limited to, an undue risk to the safety, security, or orderly operation of the facility or an immediate and grave detriment to the treatment of the individual due to disclosure of psychiatric or psychological information, if medically contraindicated by the treating physician or a licensed health care professional. The reason(s) for any denial of the opportunity to call witnesses or confront and cross-examine witnesses shall be made part of the record.

(3) If the adult in custody intends to call witnesses, the adult in custody must request that the hearings officer schedule witnesses to present testimony at the hearing. The request must be submitted to the hearings officer in writing in advance of the hearing, and include a list of the person(s) the adult in custody requests to be called to testify and direct examination questions to be posed to each person. The hearings officer shall arrange for the taking of testimony from such witnesses as properly requested by the adult in custody, subject to the exclusions and restrictions provided in these rules. The hearings officer, rather than the adult in custody, shall pose questions submitted by the adult in custody, including questions on cross-examination, if any. The hearings officer may briefly recess the hearing to allow the adult in custody, the adult in custody's assistant, or both, an opportunity to prepare cross-examination questions.

(4) The hearings officer may limit testimony when it is cumulative or irrelevant.

(5) All questions which may assist in the resolution of the proceedings, as determined by the hearings officer, shall be posed. The reason(s) for not posing a question will be made part of the record.

(6) The hearings officer may, on his or her own motion, call witnesses to testify.

(7) The hearings officer may exclude a specific adult in custody or staff witness upon finding that the witness' testimony would not assist in the resolution of the proceeding or presents an immediate undue hazard to facility security. If a witness is excluded, the reason(s) shall be made part of the record.

(8) The hearings officer may exclude other persons as witnesses, after giving reasonable consideration to alternatives available for obtaining witness testimony, upon finding that the witness' testimony would not assist the hearings officer in the resolution of the proceeding, the witness' appearance at the hearing would present an undue risk to the safety, security, or orderly operation of the facility or the safety of the witness or others, or that the witness is not reasonably available. The reason(s) for exclusion shall be made part of the record.

(9) Persons other than staff requested as witnesses may refuse to appear or testify.

Or. Admin. R. 309-120-0240

MHD 10-2005, f. 12-29-05, cert. ef. 1-1-06; BHS 26-2023, minor correction filed 07/11/2023, effective 7/11/2023

Statutory/Other Authority: ORS 179.040, 179.473, 179.479 & 413.042

Statutes/Other Implemented: ORS 179.471-179.486 & 179.495-179.508