State v. Summers

ORS 136.570 does not warrant the exclusion of witnesses from testifying as a remedy for its violation. ORS 135.865 allows the trial court to have "broad discretion in its choice of sanctions for failure to disclose names of witnesses in a criminal case."

Defendant appealed conviction for multiple criminal charges, arguing that the trial court erred under ORS 136.570 and 135.815 in its admission of testimony of two previously undisclosed witnesses, and that under State v. Harshman, failure to disclose names of witnesses is a discovery violation through which Defendant would be entitled to a continuance or an alternative remedy. 61 Or. App. 711, 658 P.2d 1173 (1983). The state argued that it did not violate ORS 136.570, and that violations of ORS 136.570 do not entitle Defendant to a remedy or exclusion of the witnesses. The state conceded that it violated ORS 135.815 by omitting the witnesses’ names from its pretrial witness list, but argued that since the trial court did not address the discovery violation, no remedy was warranted.

The Oregon Court of Appeals held that since ORS 136.570 does not provide for exclusionary remedies, exclusion of witnesses is not a proper remedy for violations of 136.570. “By the terms of ORS 135.865, broad discretion is conferred upon the trial court in the choice of sanctions [for] failure to disclose the names of witnesses in a criminal case.” State v. Wolfe, 273 Or 518, 524, 542 P2d 482 (1975). The Court held that because the trial court limited the testimony of one of the witnesses, this was indicative in its use of discretion in issuing a sanction. Affirmed.