ORS § 138.510
ORS 138.510
Sections 1 and 2, chapter 368, Oregon Laws 2023, provide:
Sec. 1. (1) Notwithstanding ORS 138.510 (3) and (4), at any time before December 30, 2024, a person may file a petition for post-conviction relief under ORS 138.510 to 138.680 claiming, as grounds for relief, that the person was convicted of a criminal offense as the result of a nonunanimous jury verdict.
(2) ORS 138.550 does not apply to petitions for post-conviction relief described in this section.
(3)(a) Notwithstanding ORS 138.530, in a post-conviction relief proceeding claiming, as grounds for relief, that the person was convicted of a criminal offense as the result of a nonunanimous jury verdict, the petitioner has the burden of proving, by a preponderance of the evidence, that the conviction resulted from a nonunanimous jury verdict.
(b) Evidence that a jury verdict was nonunanimous is limited to:
(A) A verdict form;
(B) A written jury poll;
(C) An audio or video recording of the trial; or
(D) A transcript of the trial.
(c) Notwithstanding paragraph (b) of this subsection, if a recording or transcript of the trial reflects that the jury was polled after issuing the verdict, but either does not indicate or is ambiguous concerning whether the verdict was unanimous, the court may order a review in camera of the file of the district attorney, the defense attorney or the court, relating to the underlying conviction, and may consider any evidence concerning the jury's verdict within the file or files that the court determines to be credible.
(d) This subsection applies to petitions for post-conviction relief filed on or after the effective date of this 2023 Act [July 18, 2023].
(4) Notwithstanding ORS 138.520, if post-conviction relief is granted under this section, the court shall vacate the judgment as to the specific conviction that resulted from the nonunanimous jury verdict, or grant such other relief as stipulated by the parties.
(5) A petitioner with an appeal pending in an appellate court on the effective date of this 2023 Act, from a judgment on a petition under ORS 138.510 to 138.680, may by motion seek leave of the appellate court to vacate the judgment and remand to the circuit court so that the petitioner may file an amended petition indicating the petitioner's intent to proceed under the provisions of this section. Upon the receipt of such a motion, the appellate court may vacate the judgment and remand to the circuit court if:
(a) The petition asserted as grounds for relief either that the petitioner was convicted of a criminal offense as the result of a nonunanimous jury verdict, or that counsel was ineffective for a reason related to the petitioner's conviction resulting from a nonunanimous jury verdict; and
(b) The motion described in this subsection is filed within 90 days after the effective date of this 2023 Act.
(6) If a judgment of conviction is vacated on the grounds that the person was convicted of a criminal offense as the result of a nonunanimous jury verdict, upon retrial, if the trial court determines that evidence other than witness testimony that was previously admitted during the trial that resulted in the nonunanimous guilty verdict is unavailable because the evidence was lawfully destroyed or otherwise rendered unavailable through no fault of the state or the defendant, or that the evidence is unavailable despite reasonable efforts to preserve the evidence:
(a) The state may present in the state's case in chief or rebuttal case, and the defendant may present in the defendant's case in chief, a transcript or portion thereof, a recording of the prior proceeding or portion thereof, or any other previously admitted exhibit, concerning the unavailable evidence from the previous trial.
(b) The court shall instruct the jury:
(A) That the evidence is unavailable;
(B) That the jury may not attribute the unavailability to the state or the defendant, or fault either party for failing to produce the unavailable evidence; and
(C) That the jury may not speculate as to why the evidence is unavailable.
(c) The court may not instruct the jury pursuant to ORS 10.095 (7) or (8) regarding the transcripts, recordings of the prior proceeding or exhibits described in paragraph (a) of this subsection.
(7) Except as otherwise provided in this section, all provisions of ORS 138.510 to 138.680 apply to petitions for post-conviction relief described in this section.
(8) As used in this section, "conviction" includes a finding of guilty except for insanity. [2023 c. 368, § 1]
Sec. 2. (1) Section 1 of this 2023 Act is repealed on January 2, 2026.
(2) The repeal of section 1 of this 2023 Act does not affect:
(a) A petition or amended petition for post-conviction relief described in section 1 of this 2023 Act filed within the time limitations described in section 1 of this 2023 Act.
(b) A retrial resulting from the vacating of a conviction pursuant to section 1 of this 2023 Act. [2023 c. 368, § 2]