No. 44 October 23, 2025 407
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Adverse Party,
v.
AUSTIN ADRIAN WALL,
Defendant-Relator.
(CC 24CR59786) (SC S071649)
En Banc
Original proceeding in mandamus.*
Argued and submitted June 25, 2025.
Brook Reinhard, Reinhard Law, Eugene, argued the
cause for defendant-relator. Matthew L. Watkins, Matthew
Watkins Attorney at Law LLC, Eugene, filed the briefs for
defendant-relator. Also on the brief was Brook Reinhard,
Reinhard Law, Eugene, and Rian Peck, Visible Law LLC,
Portland.
Paul L. Smith, Deputy Solicitor General, Salem, argued
the cause and filed the brief for plaintiff-adverse party.
Also on the brief were Dan Rayfield, Attorney General, and
Benjamin Gutman, Solicitor General.
Daniel C. Silberman, Oregon Criminal Defense Lawyers
Association, Salem, filed the brief for amicus curiae Oregon
Criminal Defense Lawyers Association. Also on the brief
were Stacy M. Du Clos, and Amy Potter.
JAMES, J.
The alternative writ of mandamus is dismissed.
______________
* On petition for writ of mandamus from an order of Douglas County Circuit
Court, Steve Hoddle, Judge.
408 State v. Wall
Cite as 374 Or 407 (2025) 409
JAMES, J.
This mandamus action arises out of relator’s criminal prosecution—specifically, it concerns a dispute between
relator and the state as to his testimony before the grand
jury. Various motions were filed on this issue, but many were
stayed and not ruled upon. The single ruling before us is the
trial court’s denial of relator’s motion for an order requiring that he be allowed to appear in person before the grand
jury, as opposed to by videoconference. As we will explain,
the manner of witness presentation before the grand jury is
determined, at least in the first instance, by the grand jury
itself—not unilaterally controlled by either the prosecutor
or the defendant. Here, the trial court did not have a nondiscretionary obligation to order relator’s in-person appearance. Therefore, mandamus is not appropriate, relator is not
entitled to the relief he seeks, and we dismiss the alternative writ.
I. BACKGROUND
The state initially charged relator with second-degree
murder, ORS 163.115, through a district attorney’s information. Relator, through counsel, notified the prosecutor that he
wished to invoke his right, under ORS 132.320(12)(a), to testify before the grand jury. That statutory provision provides:
“A defendant who has been arraigned on an information
alleging a felony charge that is the subject of a grand jury
proceeding and who is represented by an attorney has a
right to appear before the grand jury as a witness if, prior
to the filing of an indictment, the defense attorney serves
upon the district attorney written notice requesting the
appearance.”
The prosecutor informed relator that she would
only allow him to appear before the grand jury remotely and
would not allow him to appear in person. ORS 132.320(5)
permits the grand jury to receive testimony remotely:
“A grand jury may receive testimony of a witness by means
of simultaneous television transmission allowing the grand
jury and district attorney to observe and communicate with
the witness and the witness to observe and communicate
with the grand jury and the district attorney.”
410 State v. Wall
Relator moved the trial court for an order asking
for a single form of relief: that it “require that [relator] be
allowed to appear in person before the grand jury.” Relator
argued that he had an absolute statutory and constitutional
right to an in-person appearance. The trial court denied
relator’s motion, reasoning that it had no authority to determine whether a defendant could testify before the grand
jury in person, because it had no authority to “dictate” how
the prosecutor carried out grand jury proceedings:
“So, I don’t believe—sort of just kind of going through it,
I don’t believe that I have the authority to determine how
a witness is called or how the grand jury proceedings are
going to be done. And so, I do—I do believe that he has a
constitutional right to appear. It doesn’t—while there may
be some—I don’t think I have the authority to determine
whether or not he can appear in person or not in person,
I do think that there may be some minimal prejudicial
effects via video. …
“And so, I don’t … think that the Court has the ability
to dictate how the grand jury—how the—how the D.A.’s
Office decides the process for the grand jury, other than
assuring that [relator’s] rights are upheld.
“And so, I’m not going to order the D.A.’s Office to allow
him to testify in person.”
Following that ruling, relator sought a stay of the
grand jury proceedings, pending a petition for mandamus.
The state objected:
“But staying the court proceedings, I think, is different
than saying [the] grand jury can’t hear the case.
“I’m not sure what would prevent the State from even
filing, you know, a new case on a grand jury indictment
for these same charges as well. So, I don’t think that staying the proceedings should or would affect the grand jury
schedule.”
The trial court stayed the court proceedings, but expressed
uncertainty as to whether it had the power to stay the grand
jury proceedings:
“Well, I—to be clear, I do think it’s appropriate to stay
the proceedings.
Cite as 374 Or 407 (2025) 411
“Now, I’m not saying, because I—frankly, I don’t know.
But I’m not saying that that stays grand jury or doesn’t
stay grand jury. And so I am going to stay the proceedings. I do think it’s appropriate. I do think it’s an issue of
first impression. I do think it’s important that the appellate
courts, if they’re willing, do shed some sort of guidance on
this issue. And so I will stay the proceedings.”
The next day, relator’s counsel observed that the
grand jury proceedings were continuing and filed an objection. That objection, among other issues, was the subject of a
subsequent hearing, where the court again indicated that it
was uncertain whether its order staying the court proceedings could have any effect on the grand jury proceedings:
“[RELATOR’S COUNSEL]: That’s fine, Your Honor. If
it’s at all helpful, since—the Court mentioned yesterday
that the Court wasn’t clear—and admittedly, I wasn’t sure,
I didn’t have authority at the time on whether a motion for
a stay does pause grand jury, Your Honor.
“…
“So, I have several examples if you want citations. But
I think it is within the Court’s purview to order that [the]
grand jury be stayed. So, I am asking that that be within
the ambit of the Court’s order. I know that was an open
question yesterday.
“[THE COURT]: Well, I mean, I think I guess I just
didn’t decide. I said the case is stayed, period. … And
what the legal effect of that is, is sort of, it is what it is,
and, you know, I mean, so—
“[RELATOR’S COUNSEL]: Okay. Thank you.”
At that point, relator filed a series of motions,
including a motion to dismiss the indictment that the grand
jury returned after the trial court had stayed the case, and
a separate motion to set aside the indictment for a failure to
follow the grand jury statutes. Finally, to enable the court to
consider those motions, relator filed a separate motion to lift
the stay of the trial court proceedings. The state objected,
and the trial court denied the motion to lift the stay, noting
from the bench, “I’m not going to remove the stay. … [W]hen
this case resumes, however it resumes, then we can litigate
whatever motions are out there.”
412 State v. Wall
Relator petitioned this court for a writ of mandamus, seeking two separate forms of relief in the petition.
First, relator sought an order “[c]ommanding the trial court
[to] vacate its earlier order and to allow defendant to appear
in person to testify at grand jury.” Second, relator sought
an order “to vacate the existing grand jury proceeding held
in violation of the trial court’s order of a stay.” This court
issued an alternative writ and set the matter for briefing
and argument.
II. ANALYSIS
We begin by clarifying what is, and is not, before
us. As we understand it, the trial court declined to lift
the stay of the trial court proceedings to consider relator’s
most recent motions challenging what had occurred at the
grand jury and the resulting indictment. Accordingly, those
motions have not been ruled upon by the trial court and
are not before us. The trial court indicated it would take up
those matters after our decision on mandamus.
The ruling on mandamus is the trial court’s denial
of relator’s motion for an order “requir[ing] that [he] be
allowed to appear in person before the grand jury.” In opening briefing before this court, relator advanced the single
argument that his consent to remote appearance is required
and that, absent that consent, he has an absolute statutory
right to an in-person appearance before the grand jury. For
relator, as expressed in his opening brief, the text, context,
and legislative history of the phrase “a right to appear before
the grand jury,” as used in ORS 132.320(12)(a), mean a right
to an in-person appearance. In briefing and argument, relator did not advance the second claim in his petition that the
trial court erred in failing to include grand jury proceedings
in its order to stay.
In briefing, relator writes that this case “presents
the question whether prosecutors have unilateral, unreviewable power to force a defendant to testify remotely.” At
its core, relator’s narrow argument on mandamus is that
prosecutors do not have “unilateral” power to dictate the
mode of a defendant’s grand jury testimony; instead, defendants have that “unilateral” power. As we explain further,
Cite as 374 Or 407 (2025) 413
the notion that either the prosecutor or the defendant has a
unilateral right to control the manner of testimony is inconsistent with the nature of grand juries and the statutory
scheme.
A. The Role of the Grand Jury
Unless a criminal defendant waives the right, the
Oregon Constitution provides that an individual may be
charged with a felony only upon either indictment or a preliminary hearing following the issuance of an information.
Or Const, Art VII (Amended), § 5(3) - (5). Either mechanism—an indictment, resulting from a grand jury inquiry,
or a preliminary hearing—provides a check on the power of
the executive. “Although the role of the grand jury has developed over centuries and its origins are somewhat obscure,
… its function as an accusatory body serves a crucial role
in protecting individual liberties.” State v. Burleson, 342 Or
697, 703,
160 P3d 624 (2007). It is “an institution in which
a group of ordinary citizens must approve of the initiation
of the state power to accuse citizens of major crimes.”
Id.
Consequently, it “serves as a brake on the state’s potential
abuse of the accusatory process.”
Id.
We see this in the way in which the grand jury is
convened. It is the court that draws grand jurors “from the
jurors in attendance upon the circuit court at a particular jury service term.” ORS 132.010; see also ORS 132.020
(describing duties of the court in empaneling the grand
jury); ORS 132.030 (permitting judge or clerk of the court to
excuse a grand juror from service); ORS 132.050 (requiring
the court to appoint a foreman and an alternate foreman of
the grand jury); ORS 132.060 (requiring administration of
grand juror oaths “under the direction of the court”); ORS
132.070 (requiring the court to charge the grand jury and
“give it such information as the court deems proper concerning the nature of its powers and duties”).
The court resolves disputes about the grand jury
proceedings, advises the grand jury on the law, and performs other functions with respect to the grand jury. See
ORS 132.370(1) (“When the grand jury is in doubt whether
the facts, as shown by the evidence before it, constitute a
414 State v. Wall
crime in law or whether the same has ceased to be punishable by reason of lapse of time or a former acquittal or conviction, it may make a presentment of the facts to the court,
without mentioning the names of individuals, and ask the
court for instructions concerning the law arising thereon.”);
ORS 132.070 (the court charges the grand jury and gives
it “such information as the court deems proper concerning
the nature of the [grand jury’s] power and duties”); ORS
132.090(2) - (3) (the court may permit parents, guardians,
guards, medical or other special attendant or nurse or qualified interpreters to be present in the grand jury room); ORS
132.250(2)(b) (the court may appoint and permit a certified
court reporter to attend all proceedings of the grand jury);
ORS 132.320(3) (the court may authorize the grand jury to
receive an affidavit of a witness after good cause has been
shown for the witness’ inability to appear); and ORS 132.120
(the court discharges or continues the grand jury in session
for such period of time as the judge deems advisable).
District attorneys—as executive agents—do not
have statutory authority to unilaterally control, limit, or
dictate the grand jury’s inquiry. Rather, the grand jury has
certain prerogatives of its own. ORS 132.100, for example,
provides that “[t]he foreman of the grand jury or, in the
absence of the foreman, any other grand juror shall administer an oath to any witness appearing before the grand
jury.” ORS 132.310 provides that grand juries “inquire into
crimes.” ORS 132.320(9) provides that, “when [the grand
jury] believes that other evidence within its reach will
explain away the charge, it should order such evidence to
be produced, and for that purpose may require the district
attorney to issue process for the witnesses.” Indeed, ORS
132.320 repeatedly describes the grand jury as conducting
an “investigation.” When grand juries inquire with the court
about the law, the presence of the district attorney is not
even statutorily required. See ORS 132.370(3) (“A presentment is made to the court by the foreman in the presence of
the grand jury.”).
District attorneys do have an important role. They
present evidence, examine witnesses, and “may submit an
indictment to the grand jury in any case when the district
Cite as 374 Or 407 (2025) 415
attorney has good reason to believe that a crime has been
committed which is triable within the county.” ORS 132.330.
But the grand jury is free to investigate crimes on its own.
ORS 132.350(1) provides that, “[i]f a grand juror knows or
has reason to believe that a crime which is triable in the
county has been committed, the grand juror shall disclose
the same to the fellow jurors, who may thereupon investigate the same.” Further, the grand jury is empowered to
direct the district attorney to prepare “indictments or presentments for it and attend its sittings to advise it in relation
to its duties or to examine witnesses in its presence.” ORS
132.340; see also ORS 8.670 (requiring district attorneys to
“attend upon and advise the grand jury when required”);
ORS 132.250(1) (requiring district attorney to ensure that
grand jury proceedings are recorded); ORS 132.260(3)
(requiring district attorney to maintain recordings).
So understood, district attorneys—as the state correctly acknowledges before this court—”act as agents of, and
advisors to, the grand jury.” It follows that district attorneys
have no “unilateral” control over the method and manner by
which the grand jury hears from witnesses. Likewise, defendants do not have “unilateral” control. Relator’s argument
to the contrary is that the use of the phrase “appear before
the grand jury” in ORS 132.320(12) can mean only appearance in person, unless the defendant consents to something
else. That argument is unpersuasive.
Applying our usual statutory interpretive model
derived from State v. Gaines, 346 Or 160,
206 P3d 1042
(2009), we consider the text, context, and legislative history
of that phrase. Textually, the word “appear,” as used in ORS
132.320(12) means “to come formally before an authoritative
body; specif : to present oneself formally as plaintiff, defendant, or counsel.” Webster’s Third New Int’l Dictionary 103
(unabridged ed 2002). Persons have long been permitted to
“appear” in legal proceeding in a multitude of ways—including such ways as phone (and now video) conference, through
counsel, through previously recorded testimony, by affidavit, or in person. Thus, the use of the term “appear” does not
uniquely suggest an in-person appearance.
416 State v. Wall
Neither does statutory context support relator’s
interpretation. First, ORS 132.320(5) explicitly permits the
grand jury to receive testimony via electronic transmission.
We observe that ORS 132.100 requires the administration
of an oath “to any witness appearing before the grand jury.”
(Emphasis added.) Similarly, ORS 132.260(1) requires the
recording of “all testimony given before the grand jury,”
including the “name of each witness appearing before
the grand jury,” and “[e]ach question asked of, and each
response provided by, a witness appearing before the grand
jury.” (Emphases added.) Given that ORS 132.320(5) explicitly authorizes at least nondefendant witnesses to testify
“by means of simultaneous television transmission,” relator’s reading of “appearance” in ORS 132.320(12) as being
appearance “in person” is incompatible with how that term
is used in other parts of the statute.
Finally, our review of the legislative history of ORS
132.320(12) does not support the conclusion that the legislature intended to create an absolute right of a criminal
defendant to appear before a grand jury in person. ORS
132.320(12) originated as Senate Bill (SB) 825 (2015), which
was almost entirely discussed in conjunction with the larger
Senate Bill (SB) 822 (2015), concerning grand jury recordation. Most of the testimony related to SB 822, and there was
very little discussion of SB 825. However, the stated purpose
of SB 825 was to permit a defendant to “head off charges
resulting from a mistake or complicated circumstances.”
Video Recording, Senate Committee on Judiciary, SB 825,
Mar 31, 2015, at 10:39 (statement of Sen Kim Thatcher),
https://olis.oregonlegislature.gov (accessed Oct 13, 2025).
Nothing in the history of SB 825 evidences any legislative
intent to restrict the discretion of the grand jury over the
form of witness testimony. And more pointedly, nothing evidences any legislative intent that ORS 132.320(12) would
override, or have any limiting affect upon, the discretion
afforded to grand juries under ORS 132.320(5) to receive
testimony via electronic transmission.
In short, neither text, context, nor legislative history support the idea that ORS 132.320(12) confers upon a
criminal defendant “unilateral” control over the form and
Cite as 374 Or 407 (2025) 417
manner of their appearance before the grand jury. As noted,
ORS 132.320(5) provides that “[a] grand jury may receive
testimony of a witness by means of simultaneous television
transmission allowing the grand jury and district attorney to
observe and communicate with the witness and the witness
to observe and communicate with the grand jury and the
district attorney.” That decision—whether to receive testimony from a witness in person or remotely by transmission—
belongs, at least in the first instance, to the grand jury itself.1
It can be informed of its power to decide, either by the court,
the district attorney, or both. See, e.g., ORS 132.070 (“When
the grand jury is formed, the court shall charge it and give
it such information as the court deems proper concerning the
nature of its powers and duties ….”); ORS 132.340 (district
attorneys have the responsibility to “advise [the grand jury]
in relation to its duties”). Ultimately, if it is necessary, the
grand jury is always free to seek guidance from the court.
B. Appropriateness of Mandamus
“Mandamus is an extraordinary remedy and serves
a limited function.” Lindell v. Kalugin, 353 Or 338, 347,
297
P3d 1266 (2013) (internal quotation marks omitted). ORS
34.110 governs the issuance of a writ and provides, in part:
“A writ of mandamus may be issued to any inferior court
… to compel the performance of an act which the law specially enjoins …; but though the writ may require such
court … to exercise judgment, or proceed to the discharge
of any functions, it shall not control judicial discretion.”
Generally, mandamus is not a vehicle for controlling discretion. HotChalk, Inc. v. Lutheran Church-Missouri Synod, 372
Or 249, 255-56,
548 P3d 812 (2024).
As we reiterated in HotChalk,
“we assess whether the trial court had a legal duty to act in
a certain way. State ex rel. Maizels v. Juba, 254 Or 323, 327,
460 P2d 850 (1969) (‘Generally, the court has said that when
the facts are not in dispute and there is a clear rule of law
requiring the matter to be decided in a certain way, mandamus will lie.’). Accordingly, mandamus is appropriate
1
The manner in which the grand jury makes that decision and the extent, if
any, to which that decision is subject to review by the trial court, is not before us
in this proceeding. We therefore express no opinion as to those matters.
418 State v. Wall
to review only obligatory—not discretionary—action. See,
e.g., State ex rel. Ricco v. Biggs, 198 Or 413, 421-22,
255
P2d 1055 (1953), overruled on other grounds by Maizels,
254 Or 323 (‘It has become hornbook law in this state that
the writ of mandamus cannot be used as a means of controlling judicial discretion, nor as a substitute for appellate
review. The statute restricts its use to instances involving
the performance of an act which the law specially enjoins.
Mandamus will never lie to compel a court to decide a matter within its discretion in any particular way.’)”.
Id. However, mandamus relief may be appropriate when
“the trial court’s decision amounts to ‘fundamental legal
error’ or is ‘outside the permissible range of discretionary
choices’ ” available. Lindell,
353 Or at 347 (quoting State
ex rel. Keisling v. Norblad,
317 Or 615, 623,
860 P2d 241
(1993)).
As previously discussed, relator’s argument is that
the decision to testify in person is solely relator’s. That is
incorrect, for the reasons previously stated. The manner
and form of receiving witness testimony is a decision that
belongs, at least in the first instance, to the grand jury. On
this record, the trial court did not have a nondiscretionary
obligation to order defendant to be allowed to appear in person. Accordingly, relator is not entitled to the relief he seeks.
The alternative writ of mandamus is dismissed.
