(a) The applicant has the burden of proving by a preponderance of the evidence all facts essential to support the order;

(b) The prospective witness may testify and may call witnesses;

(c) All testimony is under oath; and

(d) The Oregon Evidence Code shall apply in any material witness proceeding under ORS 136.611, except that hearsay may be admitted if the court determines that it would impose an unreasonable hardship on one of the parties or on a witness to require that the primary source of the evidence be produced at the hearing, and if the witness furnishes information bearing on the informant’s reliability and, as far as possible, the means by which the information was obtained.

(2) If the court finds by a preponderance of the evidence that the prospective witness possesses information that is material to the pending action and will not appear at the time the attendance of the witness is required, the court shall establish a security amount calculated to ensure the attendance of the witness and shall enter a material witness order.

(3)(a) If the security amount is paid, the court shall release the witness. If someone other than the witness pays the security amount, the court shall release the witness only if the witness consents, in writing, to the payment of the security.

(b) If the security amount is not paid, the court shall commit the witness to the jail of the county, or other appropriate detention facility, until the witness pays the security amount or the attendance of the witness is no longer needed in the action.

(4) Unless vacated as provided in subsection (5) of this section, a material witness order remains in effect:

(a) If issued by a circuit court, during the pendency of the criminal action in the circuit court; or

(b) If issued by a court other than a circuit court, until the attendance of the witness is no longer needed in any part of the criminal action.

(5) At any time after the entry of a material witness order, the court, upon application of either party to the order and notice to the other party, may vacate or modify the order. The court shall consider new, or changed, facts or circumstances. The court may vacate the order or may modify any part of the order. If the court reduces the security amount, the court shall exonerate any part of the original security amount in excess of the modified amount that has been paid. [1995 c.657 §16]

Note: See note under 136.608.