Short title. ORS 40.010 to 40.585 and 41.415 shall
be known and may be cited as the Oregon Evidence Code. [1981 c.892 §1] (1) The
Oregon Evidence Code applies to all courts in this state except for:
(a) A hearing or mediation before a magistrate of the Oregon Tax
Court as provided by ORS 305.501;
(b) The small claims department of a circuit court as provided by
ORS 46.415; and
(c) The small claims department of a justice court as provided by
ORS 55.080.
(2) The Oregon Evidence Code applies generally to civil actions,
suits and proceedings, criminal actions and proceedings and to contempt
proceedings except those in which the court may act summarily.
(3) ORS 40.225 to 40.295 relating to privileges apply at all stages
of all actions, suits and proceedings.
(4) ORS 40.010 to 40.210 and 40.310 to 40.585 do not apply in the
following situations:
(a) The determination of questions of fact preliminary to
admissibility of evidence when the issue is to be determined by the court
under ORS 40.030.
(b) Proceedings before grand juries, except as required by ORS
132.320.
(c) Proceedings for extradition, except as required by ORS 133.743
to 133.857.
(d) Sentencing proceedings, except proceedings under ORS 138.012
and 163.150, as required by ORS 137.090 or proceedings under sections 2
to 7, chapter 463, Oregon Laws 2005.
(e) Proceedings to revoke probation, except as required by ORS
137.090.
(f) Issuance of warrants of arrest, bench warrants or search
warrants.
(g) Proceedings under ORS chapter 135 relating to conditional
release, security release, release on personal recognizance, or
preliminary hearings, subject to ORS 135.173.
(h) Proceedings to determine proper disposition of a child in
accordance with ORS 419B.325 (2) and 419C.400 (3).
(i) Proceedings under ORS 813.210, 813.215, 813.220, 813.230,
813.250 and 813.255 to determine whether a driving while under the
influence of intoxicants diversion agreement should be allowed or
terminated. [1981 c.892 §2; 1983 c.784 §1; 1985 c.16 §444; 1987 c.441
§10; 1993 c.18 §13; 1993 c.33 §289; 1995 c.531 §1; 1995 c.650 §22; 1995
c.657 §22; 1995 c.658 §35; 1999 c.1055 §11; 2005 c.345 §2; 2005 c.463 §8]Note 1: Section 11, chapter 345, Oregon Laws 2005, provides:
Sec. 11. The repeal of ORS 305.514 by section 1 of this 2005 Act
and the amendments to ORS 40.015, 305.190, 305.230, 305.392, 305.420,
305.430, 305.490, 305.501 and 305.620 by sections 2 to 10 of this 2005
Act do not apply to small claims procedures filed in the tax court prior
to the effective date of this 2005 Act [January 1, 2006]. [2005 c.345 §11]Note 2: Section 21, chapter 463, Oregon Laws 2005, provides:
Sec. 21. Sections 1 to 7 of this 2005 Act and the amendments to ORS
40.015, 136.280, 137.765, 137.767, 161.725 and 161.735 by sections 8 to
12 and 18 of this 2005 Act apply to:
(1) A criminal action commencing on or after the effective date of
this 2005 Act [July 7, 2005] and before January 2, 2008;
(2) A criminal action commencing prior to the effective date of
this 2005 Act in which a sentence has not been imposed prior to the
effective date of this 2005 Act; and
(3) A case that has been remanded to a trial court that will result
in resentencing for which a new sentence has not been imposed prior to
the effective date of this 2005 Act. [2005 c.463 §21]Note 3: The amendments to 40.015 by section 25, chapter 843, Oregon
Laws 2005, become operative July 1, 2007. See section 38, chapter 843,
Oregon Laws 2005. The text that is operative from July 1, 2007, until
January 2, 2008, is set forth for the user’s convenience.
40.015. (1) The Oregon Evidence Code applies to all courts in this
state except for:
(a) A hearing or mediation before a magistrate of the Oregon Tax
Court as provided by ORS 305.501;
(b) The small claims department of a circuit court as provided by
ORS 46.415; and
(c) The small claims department of a justice court as provided by
ORS 55.080.
(2) The Oregon Evidence Code applies generally to civil actions,
suits and proceedings, criminal actions and proceedings and to contempt
proceedings except those in which the court may act summarily.
(3) ORS 40.225 to 40.295 relating to privileges apply at all stages
of all actions, suits and proceedings.
(4) ORS 40.010 to 40.210 and 40.310 to 40.585 do not apply in the
following situations:
(a) The determination of questions of fact preliminary to
admissibility of evidence when the issue is to be determined by the court
under ORS 40.030.
(b) Proceedings before grand juries, except as required by ORS
132.320.
(c) Proceedings for extradition, except as required by ORS 133.743
to 133.857.
(d) Sentencing proceedings, except proceedings under ORS 138.012
and 163.150, as required by ORS 137.090 or proceedings under sections 2
to 7, chapter 463, Oregon Laws 2005.
(e) Proceedings to revoke probation, except as required by ORS
137.090.
(f) Issuance of warrants of arrest, bench warrants or search
warrants.
(g) Proceedings under ORS chapter 135 relating to conditional
release, security release, release on personal recognizance, or
preliminary hearings, subject to ORS 135.173.
(h) Proceedings to determine proper disposition of a child in
accordance with ORS 419B.325 (2) and 419C.400 (4).
(i) Proceedings under ORS 813.210, 813.215, 813.220, 813.230,
813.250 and 813.255 to determine whether a driving while under the
influence of intoxicants diversion agreement should be allowed or
terminated.Note 4: The amendments to 40.015 by section 13, chapter 463, Oregon
Laws 2005, become operative January 2, 2008. See section 20, chapter 463,
Oregon Laws 2005. The text that is operative on and after January 2,
2008, is set forth for the user’s convenience.
40.015. (1) The Oregon Evidence Code applies to all courts in this
state except for:
(a) A hearing or mediation before a magistrate of the Oregon Tax
Court as provided by ORS 305.501;
(b) The small claims department of a circuit court as provided by
ORS 46.415; and
(c) The small claims department of a justice court as provided by
ORS 55.080.
(2) The Oregon Evidence Code applies generally to civil actions,
suits and proceedings, criminal actions and proceedings and to contempt
proceedings except those in which the court may act summarily.
(3) ORS 40.225 to 40.295 relating to privileges apply at all stages
of all actions, suits and proceedings.
(4) ORS 40.010 to 40.210 and 40.310 to 40.585 do not apply in the
following situations:
(a) The determination of questions of fact preliminary to
admissibility of evidence when the issue is to be determined by the court
under ORS 40.030.
(b) Proceedings before grand juries, except as required by ORS
132.320.
(c) Proceedings for extradition, except as required by ORS 133.743
to 133.857.
(d) Sentencing proceedings, except proceedings under ORS 138.012
and 163.150 or as required by ORS 137.090.
(e) Proceedings to revoke probation, except as required by ORS
137.090.
(f) Issuance of warrants of arrest, bench warrants or search
warrants.
(g) Proceedings under ORS chapter 135 relating to conditional
release, security release, release on personal recognizance, or
preliminary hearings, subject to ORS 135.173.
(h) Proceedings to determine proper disposition of a child in
accordance with ORS 419B.325 (2) and 419C.400 (4).
(i) Proceedings under ORS 813.210, 813.215, 813.220, 813.230,
813.250 and 813.255 to determine whether a driving while under the
influence of intoxicants diversion agreement should be allowed or
terminated. The Oregon Evidence Code
shall be construed to secure fairness in administration, elimination of
unjustifiable expense and delay, and promotion of growth and development
of the law of evidence to the end that the truth may be ascertained and
proceedings justly determined. [1981 c.892 §3] (1) Evidential error is not
presumed to be prejudicial. Error may not be predicated upon a ruling
which admits or excludes evidence unless a substantial right of the party
is affected, and:
(a) In case the ruling is one admitting evidence, a timely
objection or motion to strike appears of record, stating the specific
ground of objection, if the specific ground was not apparent from the
context; or
(b) In case the ruling is one excluding evidence, the substance of
the evidence was made known to the court by offer or was apparent from
the context within which questions were asked.
(2) The court may add any other or further statement which shows
the character of the evidence, the form in which it was offered, the
objection made and the ruling thereon. It may direct the making of an
offer in question and answer form.
(3) In jury cases, proceedings shall be conducted, to the extent
practicable, so as to prevent inadmissible evidence from being suggested
to the jury by any means, such as making statements or offers of proof or
asking questions in the hearing of the jury.
(4) Nothing in this rule precludes taking notice of plain errors
affecting substantial rights although they were not brought to the
attention of the court. [1981 c.892 §4] (1) Preliminary questions
concerning the qualification of a person to be a witness, the existence
of a privilege or the admissibility of evidence shall be determined by
the court, subject to the provisions of subsection (2) of this section.
In making its determination the court is not bound by the rules of
evidence except those with respect to privileges.
(2) When the relevancy of evidence depends upon the fulfillment of
a condition of fact, the court shall admit it upon, or subject to, the
introduction of evidence sufficient to support a finding of the
fulfillment of the condition.
(3) Hearings on the admissibility of confessions shall in all cases
be conducted out of the hearing of the jury. Hearings on other
preliminary matters shall be so conducted when the interests of justice
require or, when an accused is a witness, if the accused so requests.
(4) The accused does not, by testifying upon a preliminary matter,
become subject to cross-examination as to other issues in the case.
(5) This section does not limit the right of a party to introduce
before the jury evidence relevant to weight or credibility. [1981 c.892
§5] When evidence which is
admissible as to one party or for one purpose but not admissible as to
another party or for another purpose is admitted, the court, upon
request, shall restrict the evidence to its proper scope and instruct the
jury accordingly. [1981 c.892 §6]
When part of an act, declaration, conversation or writing is given in
evidence by one party, the whole on the same subject, where otherwise
admissible, may at that time be inquired into by the other; when a letter
is read, the answer may at that time be given; and when a detached act,
declaration, conversation or writing is given in evidence, any other act,
declaration, conversation or writing which is necessary to make it
understood may at that time also be given in evidence. [1981 c.892 §6a]JUDICIAL NOTICEORS 40.090 governs judicial notice of law.
[1981 c.892 §7] A judicially noticed fact must
be one not subject to reasonable dispute in that it is either:
(1) Generally known within the territorial jurisdiction of the
trial court; or
(2) Capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned. [1981 c.892 §8]
(1) A court may take judicial notice, whether requested or not.
(2) A court shall take judicial notice if requested by a party and
supplied with the necessary information. [1981 c.892 §9]Opportunity to be heard. A party is entitled
upon timely request to an opportunity to be heard as to the propriety of
taking judicial notice and the tenor of the matter noticed. In the
absence of prior notification, the request may be made after judicial
notice has been taken. [1981 c.892 §10] Judicial notice may be
taken at any stage of the proceeding. [1981 c.892 §11] (1) In a civil action or
proceeding, the court shall instruct the jury to accept as conclusive any
fact or law judicially noticed.
(2) In a criminal case, the court shall instruct the jury that it
may, but is not required to, accept as conclusive any fact judicially
noticed in favor of the prosecution. [1981 c.892 §12] Law judicially noticed is defined as:
(1) The decisional, constitutional and public statutory law of
Oregon, the United States and any state, territory or other jurisdiction
of the United States.
(2) Public and private official acts of the legislative, executive
and judicial departments of this state, the United States, and any other
state, territory or other jurisdiction of the United States.
(3) Rules of professional conduct for members of the Oregon State
Bar.
(4) Regulations, ordinances and similar legislative enactments
issued by or under the authority of the United States or any state,
territory or possession of the United States.
(5) Rules of court of any court of this state or any court of
record of the United States or of any state, territory or other
jurisdiction of the United States.
(6) The law of an organization of nations and of foreign nations
and public entities in foreign nations.
(7) An ordinance, comprehensive plan or enactment of any county or
incorporated city in this state, or a right derived therefrom. As used in
this subsection, “comprehensive plan” has the meaning given that term by
ORS 197.015. [1981 c.892 §13]BURDEN OF PERSUASION; BURDEN OF PRODUCING EVIDENCE; PRESUMPTIONS A party
has the burden of persuasion as to each fact the existence or
nonexistence of which the law declares essential to the claim for relief
or defense the party is asserting. [1981 c.892 §14] The
court shall instruct the jury as to which party bears the applicable
burden of persuasion on each issue only after all of the evidence in the
case has been received. [1981 c.892 §15]
(1) The burden of producing evidence as to a particular issue is on the
party against whom a finding on the issue would be required in the
absence of further evidence.
(2) The burden of producing evidence as to a particular issue is
initially on the party with the burden of persuasion as to that issue.
[1981 c.892 §16] In civil
actions and proceedings, a presumption imposes on the party against whom
it is directed the burden of proving that the nonexistence of the
presumed fact is more probable than its existence. [1981 c.892 §17] (1) The
judge is not authorized to direct the jury to find a presumed fact
against the accused.
(2) When the presumed fact establishes guilt or is an element of
the offense or negates a defense, the judge may submit the question of
guilt or the existence of the presumed fact to the jury only if:
(a) A reasonable juror on the evidence as a whole could find that
the facts giving rise to the presumed fact have been established beyond a
reasonable doubt; and
(b) The presumed fact follows more likely than not from the facts
giving rise to the presumed fact. [1981 c.892 §18] If presumptions are
conflicting, the presumption applies that is founded upon weightier
considerations of policy and logic. If considerations of policy and logic
are of equal weight, neither presumption applies. [1981 c.892 §19] (1) The following are presumptions:
(a) A person intends the ordinary consequences of a voluntary act.
(b) A person takes ordinary care of the person’s own concerns.
(c) Evidence willfully suppressed would be adverse to the party
suppressing it.
(d) Money paid by one to another was due to the latter.
(e) A thing delivered by one to another belonged to the latter.
(f) An obligation delivered to the debtor has been paid.
(g) A person is the owner of property from exercising acts of
ownership over it or from common reputation of the ownership of the
person.
(h) A person in possession of an order on that person, for the
payment of money or the delivery of a thing, has paid the money or
delivered the thing accordingly.
(i) A person acting in a public office was regularly appointed to
it.
(j) Official duty has been regularly performed.
(k) A court, or judge acting as such, whether in this state or any
other state or country, was acting in the lawful exercise of the
jurisdiction of the court.
(L) Private transactions have been fair and regular.
(m) The ordinary course of business has been followed.
(n) A promissory note or bill of exchange was given or indorsed for
a sufficient consideration.
(o) An indorsement of a negotiable promissory note, or bill of
exchange, was made at the time and place of making the note or bill.
(p) A writing is truly dated.
(q) A letter duly directed and mailed was received in the regular
course of the mail.
(r) A person is the same person if the name is identical.
(s) A person not heard from in seven years is dead.
(t) Persons acting as copartners have entered into a contract of
copartnership.
(u) A man and woman deporting themselves as husband and wife have
entered into a lawful contract of marriage.
(v) A child born in lawful wedlock is legitimate.
(w) A thing once proved to exist continues as long as is usual with
things of that nature.
(x) The law has been obeyed.
(y) An uninterrupted adverse possession of real property for 20
years or more has been held pursuant to a written conveyance.
(z) A trustee or other person whose duty it was to convey real
property to a particular person has actually conveyed it to the person,
when such presumption is necessary to perfect the title of the person or
the person’s successor in interest.
(2) A statute providing that a fact or a group of facts is prima
facie evidence of another fact establishes a presumption within the
meaning of this section. [1981 c.892 §20]RELEVANCY” “Relevant
evidence” means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence. [1981
c.892 §21] All
relevant evidence is admissible, except as otherwise provided by the
Oregon Evidence Code, by the Constitutions of the United States and
Oregon, or by Oregon statutory and decisional law. Evidence which is not
relevant is not admissible. [1981 c.892 §22]Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay or needless presentation of cumulative
evidence. [1981 c.892 §23](1) Evidence of a person’s character or trait of
character is admissible when it is an essential element of a charge,
claim or defense.
(2) Evidence of a person’s character is not admissible for the
purpose of proving that the person acted in conformity therewith on a
particular occasion, except:
(a) Evidence of a pertinent trait of character offered by an
accused, or by the prosecution to rebut the same;
(b) Evidence of a pertinent trait of character of the victim of the
crime offered by an accused, or by the prosecution to rebut the same or
evidence of a character trait of peacefulness of the victim offered by
the prosecution to rebut evidence that the victim was the first aggressor;
(c) Evidence of the character of a witness, as provided in ORS
40.345 to 40.355; or
(d) Evidence of the character of a party for violent behavior
offered in a civil assault and battery case when self-defense is pleaded
and there is evidence to support such defense.
(3) Evidence of other crimes, wrongs or acts is not admissible to
prove the character of a person in order to show that the person acted in
conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
(4) In criminal actions, evidence of other crimes, wrongs or acts
by the defendant is admissible if relevant except as otherwise provided
by:
(a) ORS 40.180, 40.185, 40.190, 40.195, 40.200, 40.205, 40.210 and,
to the extent required by the United States Constitution or the Oregon
Constitution, ORS 40.160;
(b) The rules of evidence relating to privilege and hearsay;
(c) The Oregon Constitution; and
(d) The United States Constitution. [1981 c.892 §24; 1997 c.313 §29](1) In any proceeding, any party may introduce evidence
establishing a pattern, practice or history of abuse of a person and may
introduce expert testimony to assist the fact finder in understanding the
significance of such evidence if the evidence:
(a) Is relevant to any material issue in the proceeding; and
(b) Is not inadmissible under any other provision of law including,
but not limited to, rules regarding relevance, privilege, hearsay,
competency and authentication.
(2) This section may not be construed to limit any evidence that
would otherwise be admissible under the Oregon Evidence Code or any other
provision of law.
(3) As used in this section, “abuse” has the meaning given that
term in ORS 107.705. [1997 c.397 §2]Note: 40.172 was added to and made a part of 40.010 to 40.585 by
legislative action but was not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation. (1) In all cases in
which evidence of character or a trait of character of a person is
admissible, proof may be made by testimony as to reputation or by
testimony in the form of an opinion. On cross-examination, inquiry is
allowable into relevant specific instances of conduct.
(2)(a) In cases in which character or a trait of character of a
person is admissible under ORS 40.170 (1), proof may also be made of
specific instances of the conduct of the person.
(b) When evidence is admissible under ORS 40.170 (3) or (4), proof
may be made of specific instances of the conduct of the person. [1981
c.892 §25; 1997 c.313 §34] (1) Evidence of the habit
of a person or of the routine practice of an organization, whether
corroborated or not and regardless of the presence of eyewitnesses, is
relevant to prove that the conduct of the person or organization on a
particular occasion was in conformity with the habit or routine practice.
(2) As used in this section, “habit” means a person’s regular
practice of meeting a particular kind of situation with a specific,
distinctive type of conduct. [1981 c.892 §21] When, after an
event, measures are taken which, if taken previously, would have made the
event less likely to occur, evidence of the subsequent measures is not
admissible to prove negligence or culpable conduct in connection with the
event. This section does not require the exclusion of evidence of
subsequent measures when offered for another purpose, such as proving
ownership, control, or feasibility of precautionary measures, if
controverted, or impeachment. [1981 c.892 §27] (1)(a)
Evidence of furnishing or offering or promising to furnish, or accepting
or offering or promising to accept, a valuable consideration in
compromising or attempting to compromise a claim which was disputed as to
either validity or amount, is not admissible to prove liability for or
invalidity of the claim or its amount.
(b) Evidence of conduct or statements made in compromise
negotiations is likewise not admissible.
(2)(a) Subsection (1) of this section does not require the
exclusion of any evidence otherwise discoverable merely because it is
presented in the course of compromise negotiations.
(b) Subsection (1) of this section also does not require exclusion
when the evidence is offered for another purpose, such as proving bias or
prejudice of a witness, negating a contention of undue delay, or proving
an effort to obstruct a criminal investigation or prosecution. [1981
c.892 §28] Evidence
of furnishing or offering or promising to pay medical, hospital or
similar expenses occasioned by an injury is not admissible to prove
liability for the injury. Evidence of payment for damages arising from
injury or destruction of property is not admissible to prove liability
for the injury or destruction. [1981 c.892 §29] (1) A
plea of guilty or no contest which is not accepted or has been withdrawn
shall not be received against the defendant in any criminal proceeding.
(2) No statement or admission made by a defendant or a defendant’s
attorney during any proceeding relating to a plea of guilty or no contest
which is not accepted or has been withdrawn shall be received against the
defendant in any criminal proceeding. [1981 c.892 §29a] (1) Except where lack of
liability insurance is an element of an offense, evidence that a person
was or was not insured against liability is not admissible upon the issue
whether the person acted negligently or otherwise wrongfully.
(2) Subsection (1) of this section does not require the exclusion
of evidence of insurance against liability when offered for another
purpose, such as proving agency, ownership or control, or bias, prejudice
or motive of a witness. [1981 c.892 §30](1) Notwithstanding any other provision of
law, in a prosecution for a crime described in ORS 163.355 to 163.427, or
in a prosecution for an attempt to commit one of these crimes, the
following evidence is not admissible:
(a) Reputation or opinion evidence of the past sexual behavior of
an alleged victim of the crime or a corroborating witness; or
(b) Reputation or opinion evidence presented for the purpose of
showing that the manner of dress of an alleged victim of the crime
incited the crime or indicated consent to the sexual acts alleged in the
charge.
(2) Notwithstanding any other provision of law, in a prosecution
for a crime described in ORS 163.355 to 163.427, or in a prosecution for
an attempt to commit one of these crimes, evidence of a victim’s past
sexual behavior other than reputation or opinion evidence is also not
admissible, unless the evidence other than reputation or opinion evidence:
(a) Is admitted in accordance with subsection (4) of this section;
and
(b) Is evidence that:
(A) Relates to the motive or bias of the alleged victim;
(B) Is necessary to rebut or explain scientific or medical evidence
offered by the state; or
(C) Is otherwise constitutionally required to be admitted.
(3) Notwithstanding any other provision of law, in a prosecution
for a crime described in ORS 163.355 to 163.427, or in a prosecution for
an attempt to commit one of these crimes, evidence, other than reputation
or opinion evidence, of the manner of dress of the alleged victim or a
corroborating witness, presented by a person accused of committing the
crime, is also not admissible, unless the evidence is:
(a) Admitted in accordance with subsection (4) of this section; and
(b) Is evidence that:
(A) Relates to the motive or bias of the alleged victim;
(B) Is necessary to rebut or explain scientific, medical or
testimonial evidence offered by the state;
(C) Is necessary to establish the identity of the victim; or
(D) Is otherwise constitutionally required to be admitted.
(4)(a) If the person accused of committing rape, sodomy or sexual
abuse or attempted rape, sodomy or sexual abuse intends to offer evidence
under subsection (2) or (3) of this section, the accused shall make a
written motion to offer the evidence not later than 15 days before the
date on which the trial in which the evidence is to be offered is
scheduled to begin, except that the court may allow the motion to be made
at a later date, including during trial, if the court determines either
that the evidence is newly discovered and could not have been obtained
earlier through the exercise of due diligence or that the issue to which
the evidence relates has newly arisen in the case. Any motion made under
this paragraph shall be served on all other parties, and on the alleged
victim through the office of the prosecutor.
(b) The motion described in paragraph (a) of this subsection shall
be accompanied by a written offer of proof. If the court determines that
the offer of proof contains evidence described in subsection (2) or (3)
of this section, the court shall order a hearing in camera to determine
if the evidence is admissible. At the hearing the parties may call
witnesses, including the alleged victim, and offer relevant evidence.
Notwithstanding ORS 40.030 (2), if the relevancy of the evidence that the
accused seeks to offer in the trial depends upon the fulfillment of a
condition of fact, the court, at the hearing in camera or at a subsequent
hearing in camera scheduled for the same purpose, shall accept evidence
on the issue of whether the condition of fact is fulfilled and shall
determine the issue.
(c) If the court determines on the basis of the hearing described
in paragraph (b) of this subsection that the evidence the accused seeks
to offer is relevant and that the probative value of the evidence
outweighs the danger of unfair prejudice, the evidence shall be
admissible in the trial to the extent an order made by the court
specifies evidence that may be offered and areas with respect to which a
witness may be examined or cross-examined. An order admitting evidence
under this subsection may be appealed by the government before trial.
(5) For purposes of this section:
(a) “In camera” means out of the presence of the public and the
jury; and
(b) “Past sexual behavior” means sexual behavior other than the
sexual behavior with respect to which rape, sodomy or sexual abuse or
attempted rape, sodomy or sexual abuse is alleged. [1981 c.892 §31; 1993
c.301 §1; 1993 c.776 §1; 1997 c.249 §20; 1999 c.949 §3]PRIVILEGES (1) As used in this
section, unless the context requires otherwise:
(a) “Client” means a person, public officer, corporation,
association or other organization or entity, either public or private,
who is rendered professional legal services by a lawyer, or who consults
a lawyer with a view to obtaining professional legal services from the
lawyer.
(b) “Confidential communication” means a communication not intended
to be disclosed to third persons other than those to whom disclosure is
in furtherance of the rendition of professional legal services to the
client or those reasonably necessary for the transmission of the
communication.
(c) “Lawyer” means a person authorized, or reasonably believed by
the client to be authorized, to practice law in any state or nation.
(d) “Representative of the client” means a principal, an employee,
an officer or a director of the client:
(A) Who provides the client’s lawyer with information that was
acquired during the course of, or as a result of, such person’s
relationship with the client as principal, employee, officer or director,
and is provided to the lawyer for the purpose of obtaining for the client
the legal advice or other legal services of the lawyer; or
(B) Who, as part of such person’s relationship with the client as
principal, employee, officer or director, seeks, receives or applies
legal advice from the client’s lawyer.
(e) “Representative of the lawyer” means one employed to assist the
lawyer in the rendition of professional legal services, but does not
include a physician making a physical or mental examination under ORCP 44.
(2) A client has a privilege to refuse to disclose and to prevent
any other person from disclosing confidential communications made for the
purpose of facilitating the rendition of professional legal services to
the client:
(a) Between the client or the client’s representative and the
client’s lawyer or a representative of the lawyer;
(b) Between the client’s lawyer and the lawyer’s representative;
(c) By the client or the client’s lawyer to a lawyer representing
another in a matter of common interest;
(d) Between representatives of the client or between the client and
a representative of the client; or
(e) Between lawyers representing the client.
(3) The privilege created by this section may be claimed by the
client, a guardian or conservator of the client, the personal
representative of a deceased client, or the successor, trustee, or
similar representative of a corporation, association, or other
organization, whether or not in existence. The person who was the lawyer
or the lawyer’s representative at the time of the communication is
presumed to have authority to claim the privilege but only on behalf of
the client.
(4) There is no privilege under this section:
(a) If the services of the lawyer were sought or obtained to enable
or aid anyone to commit or plan to commit what the client knew or
reasonably should have known to be a crime or fraud;
(b) As to a communication relevant to an issue between parties who
claim through the same deceased client, regardless of whether the claims
are by testate or intestate succession or by inter vivos transaction;
(c) As to a communication relevant to an issue of breach of duty by
the lawyer to the client or by the client to the lawyer;
(d) As to a communication relevant to an issue concerning an
attested document to which the lawyer is an attesting witness; or
(e) As to a communication relevant to a matter of common interest
between two or more clients if the communication was made by any of them
to a lawyer retained or consulted in common, when offered in an action
between any of the clients.
(5) Notwithstanding ORS 40.280, a privilege is maintained under
this section for a communication made to the office of public defense
services established under ORS 151.216 for the purpose of seeking
preauthorization for or payment of nonroutine fees or expenses under ORS
135.055.
(6) Notwithstanding subsection (4)(c) of this section and ORS
40.280, a privilege is maintained under this section for a communication
that is made to the office of public defense services established under
ORS 151.216 for the purpose of making, or providing information
regarding, a complaint against a lawyer providing public defense
services. [1981 c.892 §32; 1987 c.680 §1; 2005 c.356 §1; 2005 c.358 §1]Note: The amendments to 40.225 by section 1, chapter 356, Oregon
Laws 2005, and section 1, chapter 358, Oregon Laws 2005, apply to
communications made on or after January 1, 2006. See section 2, chapter
356, Oregon Laws 2005, and section 2, chapter 358, Oregon Laws 2005. (1) As used in
this section, unless the context requires otherwise:
(a) “Confidential communication” means a communication not intended
to be disclosed to third persons except:
(A) Persons present to further the interest of the patient in the
consultation, examination or interview;
(B) Persons reasonably necessary for the transmission of the
communication; or
(C) Persons who are participating in the diagnosis and treatment
under the direction of the psychotherapist, including members of the
patient’s family.
(b) “Patient” means a person who consults or is examined or
interviewed by a psychotherapist.
(c) “Psychotherapist” means a person who is:
(A) Licensed, registered, certified or otherwise authorized under
the laws of any state to engage in the diagnosis or treatment of a mental
or emotional condition; or
(B) Reasonably believed by the patient so to be, while so engaged.
(2) A patient has a privilege to refuse to disclose and to prevent
any other person from disclosing confidential communications made for the
purposes of diagnosis or treatment of the patient’s mental or emotional
condition among the patient, the patient’s psychotherapist or persons who
are participating in the diagnosis or treatment under the direction of
the psychotherapist, including members of the patient’s family.
(3) The privilege created by this section may be claimed by:
(a) The patient.
(b) A guardian or conservator of the patient.
(c) The personal representative of a deceased patient.
(d) The person who was the psychotherapist, but only on behalf of
the patient. The psychotherapist’s authority so to do is presumed in the
absence of evidence to the contrary.
(4) The following is a nonexclusive list of limits on the privilege
granted by this section:
(a) If the judge orders an examination of the mental, physical or
emotional condition of the patient, communications made in the course
thereof are not privileged under this section with respect to the
particular purpose for which the examination is ordered unless the judge
orders otherwise.
(b) There is no privilege under this rule as to communications
relevant to an issue of the mental or emotional condition of the patient:
(A) In any proceeding in which the patient relies upon the
condition as an element of the patient’s claim or defense; or
(B) After the patient’s death, in any proceeding in which any party
relies upon the condition as an element of the party’s claim or defense.
(c) Except as provided in ORCP 44, there is no privilege under this
section for communications made in the course of mental examination
performed under ORCP 44.
(d) There is no privilege under this section with regard to any
confidential communication or record of such confidential communication
that would otherwise be privileged under this section when the use of the
communication or record is allowed specifically under ORS 426.070,
426.074, 426.075, 426.095, 426.120 or 426.307. This paragraph only
applies to the use of the communication or record to the extent and for
the purposes set forth in the described statute sections. [1981 c.892
§33; 1987 c.903 §1] (1) As used in this
section, unless the context requires otherwise:
(a) “Confidential communication” means a communication not intended
to be disclosed to third persons except:
(A) Persons present to further the interest of the patient in the
consultation, examination or interview;
(B) Persons reasonably necessary for the transmission of the
communication; or
(C) Persons who are participating in the diagnosis and treatment
under the direction of the physician, including members of the patient’s
family.
(b) “Patient” means a person who consults or is examined or
interviewed by a physician.
(c) “Physician” means a person authorized and licensed or certified
to practice medicine or dentistry in any state or nation, or reasonably
believed by the patient so to be, while engaged in the diagnosis or
treatment of a physical condition. “Physician” includes licensed or
certified naturopathic and chiropractic physicians and dentists.
(2) A patient has a privilege to refuse to disclose and to prevent
any other person from disclosing confidential communications in a civil
action, suit or proceeding, made for the purposes of diagnosis or
treatment of the patient’s physical condition, among the patient, the
patient’s physician or persons who are participating in the diagnosis or
treatment under the direction of the physician, including members of the
patient’s family.
(3) The privilege created by this section may be claimed by:
(a) The patient;
(b) A guardian or conservator of the patient;
(c) The personal representative of a deceased patient; or
(d) The person who was the physician, but only on behalf of the
patient. Such person’s authority so to do is presumed in the absence of
evidence to the contrary.
(4) The following is a nonexclusive list of limits on the privilege
granted by this section:
(a) If the judge orders an examination of the physical condition of
the patient, communications made in the course thereof are not privileged
under this section with respect to the particular purpose for which the
examination is ordered unless the judge orders otherwise.
(b) Except as provided in ORCP 44, there is no privilege under this
section for communications made in the course of a physical examination
performed under ORCP 44.
(c) There is no privilege under this section with regard to any
confidential communication or record of such confidential communication
that would otherwise be privileged under this section when the use of the
communication or record is specifically allowed under ORS 426.070,
426.074, 426.075, 426.095, 426.120 or 426.307. This paragraph only
applies to the use of the communication or record to the extent and for
the purposes set forth in the described statute sections. [1981 c.892
§33a; 1987 c.903 §2; 2005 c.353 §1]Note: Section 2, chapter 353, Oregon Laws 2005, provides:
Sec. 2. The amendments to ORS 40.235 by section 1 of this 2005 Act
apply only to confidential communications made on or after the effective
date of this 2005 Act [January 1, 2006]. [2005 c.353 §2] A licensed professional
nurse shall not, without the consent of a patient who was cared for by
such nurse, be examined in a civil action or proceeding, as to any
information acquired in caring for the patient, which was necessary to
enable the nurse to care for the patient. [1981 c.892 §33b] (1) A
certificated staff member of an elementary or secondary school shall not
be examined in any civil action or proceeding, as to any conversation
between the certificated staff member and a student which relates to the
personal affairs of the student or family of the student, and which if
disclosed would tend to damage or incriminate the student or family. Any
violation of the privilege provided by this subsection may result in the
suspension of certification of the professional staff member as provided
in ORS 342.175, 342.177 and 342.180.
(2) A certificated school counselor regularly employed and
designated in such capacity by a public school shall not, without the
consent of the student, be examined as to any communication made by the
student to the counselor in the official capacity of the counselor in any
civil action or proceeding or a criminal action or proceeding in which
such student is a party concerning the past use, abuse or sale of drugs,
controlled substances or alcoholic liquor. Any violation of the privilege
provided by this subsection may result in the suspension of certification
of the professional school counselor as provided in ORS 342.175, 342.177
and 342.180. However, in the event that the student’s condition presents
a clear and imminent danger to the student or to others, the counselor
shall report this fact to an appropriate responsible authority or take
such other emergency measures as the situation demands. [1981 c.892 §33c] A
clinical social worker licensed by the State Board of Clinical Social
Workers shall not be examined in a civil or criminal court proceeding as
to any communication given the clinical social worker by a client in the
course of noninvestigatory professional activity when such communication
was given to enable the licensed clinical social worker to aid the
client, except:
(1) When the client or those persons legally responsible for the
client’s affairs give consent to the disclosure;
(2) When the client initiates legal action or makes a complaint
against the licensed clinical social worker to the board;
(3) When the communication reveals a clear intent to commit a crime
which reasonably is expected to result in physical injury to a person;
(4) When the information reveals that a minor was the victim of a
crime, abuse or neglect; or
(5) When the licensed clinical social worker is a public employee
and the public employer has determined that examination in a civil or
criminal court proceeding is necessary in the performance of the duty of
the social worker as a public employee. [1981 c.892 §33d; 1989 c.721 §46](1) In addition to any other limitations on privilege
that may be imposed by law, there is no privilege under ORS 40.225,
40.230 or 40.250 for communications if:
(a) In the professional judgment of the person receiving the
communications, the communications reveal that the declarant has a clear
and serious intent at the time the communications are made to
subsequently commit a crime involving physical injury, a threat to the
physical safety of any person, sexual abuse or death;
(b) In the professional judgment of the person receiving the
communications, the declarant poses a danger of committing the crime; and
(c) The person receiving the communications makes a report to
another person based on the communications.
(2) The provisions of this section do not create a duty to report
any communication to any person.
(3) A person who discloses a communication described in subsection
(1) of this section, or fails to disclose a communication described in
subsection (1) of this section, is not liable to any other person in a
civil action for any damage or injury arising out of the disclosure or
failure to disclose. [2001 c.640 §2]Note: 40.252 was added to and made a part of 40.225 to 40.295 by
legislative action but was not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation. (1) As used in this
section, unless the context requires otherwise:
(a) “Confidential communication” means a communication by a spouse
to the other spouse and not intended to be disclosed to any other person.
(b) “Marriage” means a marital relationship between husband and
wife, legally recognized under the laws of this state.
(2) In any civil or criminal action, a spouse has a privilege to
refuse to disclose and to prevent the other spouse from disclosing any
confidential communication made by one spouse to the other during the
marriage. The privilege created by this subsection may be claimed by
either spouse. The authority of the spouse to claim the privilege and the
claiming of the privilege is presumed in the absence of evidence to the
contrary.
(3) In any criminal proceeding, neither spouse, during the
marriage, shall be examined adversely against the other as to any other
matter occurring during the marriage unless the spouse called as a
witness consents to testify.
(4) There is no privilege under this section:
(a) In all criminal actions in which one spouse is charged with
bigamy or with an offense or attempted offense against the person or
property of the other spouse or of a child of either, or with an offense
against the person or property of a third person committed in the course
of committing or attempting to commit an offense against the other spouse;
(b) As to matters occurring prior to the marriage; or
(c) In any civil action where the spouses are adverse parties.
[1981 c.892 §34; 1983 c.433 §1] (1) As used
in this section, unless the context requires otherwise:
(a) “Confidential communication” means a communication made
privately and not intended for further disclosure except to other persons
present in furtherance of the purpose of the communication.
(b) “Member of the clergy” means a minister of any church,
religious denomination or organization or accredited Christian Science
practitioner who in the course of the discipline or practice of that
church, denomination or organization is authorized or accustomed to
hearing confidential communications and, under the discipline or tenets
of that church, denomination or organization, has a duty to keep such
communications secret.
(2) A member of the clergy may not be examined as to any
confidential communication made to the member of the clergy in the
member’s professional character unless consent to the disclosure of the
confidential communication is given by the person who made the
communication.
(3) Even though the person who made the communication has given
consent to the disclosure, a member of the clergy may not be examined as
to any confidential communication made to the member in the member’s
professional character if, under the discipline or tenets of the member’s
church, denomination or organization, the member has an absolute duty to
keep the communication confidential. [1981 c.892 §35; 1999 c.7 §1] A professional
counselor or a marriage and family therapist licensed by the Oregon Board
of Licensed Professional Counselors and Therapists under ORS 675.715
shall not be examined in a civil or criminal court proceeding as to any
communication given the counselor or therapist by a client in the course
of a noninvestigatory professional activity when such communication was
given to enable the counselor or the therapist to aid the client, except:
(1) When the client or those persons legally responsible for the
affairs of the client give consent to the disclosure. If both parties to
a marriage have obtained marital and family therapy by a licensed marital
and family therapist or a licensed counselor, the therapist or counselor
shall not be competent to testify in a domestic relations action other
than child custody action concerning information acquired in the course
of the therapeutic relationship unless both parties consent;
(2) When the client initiates legal action or makes a complaint
against the licensed professional counselor or licensed marriage and
family therapist to the board;
(3) When the communication reveals the intent to commit a crime or
harmful act; or
(4) When the communication reveals that a minor is or is suspected
to be the victim of crime, abuse or neglect. [1989 c.721 §20]Note: 40.262 was added to and made a part of 40.010 to 40.585 by
legislative action but was not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation. A stenographer
shall not, without the consent of the stenographer’s employer, be
examined as to any communication or dictation made by the employer to the
stenographer in the course of professional employment. [1981 c.892 §36] A public officer shall
not be examined as to public records determined to be exempt from
disclosure under ORS 192.501 to 192.505. [1981 c.892 §37](1) As used in this section:
(a) “Interpreter” means a person who translates conversations or
other communications for a non-English-speaking person or translates the
statements of a non-English-speaking person.
(b) “Non-English-speaking person” means a person who, by reason of
place of birth or culture, speaks a language other than English and does
not speak English with adequate ability to communicate in the proceedings.
(2) A non-English-speaking person has a privilege to refuse to
disclose and to prevent an interpreter from disclosing any communications
to which the non-English-speaking person was a party that were made while
the interpreter was providing interpretation services for the
non-English-speaking person. The privilege created by this section
extends only to those communications between a non-English-speaking
person and another, and translated by the interpreter, that would
otherwise be privileged under ORS 40.225 to 40.295. [1993 c.179 §3]Note: 40.273 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 40 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. (1) As used in this section,
“unit of government” means the federal government or any state or
political subdivision thereof.
(2) A unit of government has a privilege to refuse to disclose the
identity of a person who has furnished information relating to or
assisting in an investigation of a possible violation of law to a law
enforcement officer or member of a legislative committee or its staff
conducting an investigation.
(3) The privilege created by this section may be claimed by an
appropriate representative of the unit of government if the information
was furnished to an officer thereof.
(4) No privilege exists under this section:
(a) If the identity of the informer or the informer’s interest in
the subject matter of the communication has been disclosed to those who
would have cause to resent the communication by a holder of the privilege
or by the informer’s own action, or if the informer appears as a witness
for the unit of government.
(b) If it appears from the evidence in the case or from other
showing by a party that an informer may be able to give testimony
necessary to a fair determination of the issue of guilt or innocence in a
criminal case or of a material issue on the merits in a civil case to
which the unit of government is a party, and the unit of government
invokes the privilege, and the judge gives the unit of government an
opportunity to show in camera facts relevant to determining whether the
informer can, in fact, supply that testimony. The showing will ordinarily
be in the form of affidavits, but the judge may direct that testimony be
taken if the judge finds that the matter cannot be resolved
satisfactorily upon affidavit. If the judge finds that there is a
reasonable probability that the informer can give the testimony, and the
unit of government elects not to disclose identity of the informer, the
judge on motion of the defendant in a criminal case shall dismiss the
charges to which the testimony would relate, and the judge may do so on
the judge’s own motion. In civil cases, the judge may make any order that
justice requires. Evidence submitted to the judge shall be sealed and
preserved to be made available to the appellate court in the event of an
appeal, and the contents shall not otherwise be revealed without consent
of the unit of government. All counsel and parties shall be permitted to
be present at every stage of proceedings under this paragraph except a
showing in camera, at which no counsel or party shall be permitted to be
present.
(c) If information from an informer is relied upon to establish the
legality of the means by which evidence was obtained and the judge is not
satisfied that the information was received from an informer reasonably
believed to be reliable or credible. The judge may require the identity
of the informer to be disclosed. The judge shall, on request of the unit
of government, direct that the disclosure be made in camera. All counsel
and parties concerned with the issue of legality shall be permitted to be
present at every stage of proceedings under this paragraph except a
disclosure in camera, at which no counsel or party shall be permitted to
be present. If disclosure of the identity of the informer is made in
camera, the record thereof shall be sealed and preserved to be made
available to the appellate court in the event of an appeal, and the
contents shall not otherwise be revealed without consent of the unit of
government. [1981 c.892 §38] A
person upon whom ORS 40.225 to 40.295 confer a privilege against
disclosure of the confidential matter or communication waives the
privilege if the person or the person’s predecessor while holder of the
privilege voluntarily discloses or consents to disclosure of any
significant part of the matter or communication. This section does not
apply if the disclosure is itself a privileged communication. Voluntary
disclosure does not occur with the mere commencement of litigation or, in
the case of a deposition taken for the purpose of perpetuating testimony,
until the offering of the deposition as evidence. Voluntary disclosure
does not occur when representatives of the news media are allowed to
attend executive sessions of the governing body of a public body as
provided in ORS 192.660 (4), or when representatives of the news media
disclose information after the governing body has prohibited disclosure
of the information under ORS 192.660 (4). Voluntary disclosure does
occur, as to psychotherapists in the case of a mental or emotional
condition and physicians in the case of a physical condition upon the
holder’s offering of any person as a witness who testifies as to the
condition. [1981 c.892 §39; 2003 c.259 §1]Privileged matter disclosed under compulsion or
without opportunity to claim privilege. Evidence of a statement or other
disclosure of privileged matter is not admissible against the holder of
the privilege if the disclosure was:
(1) Compelled erroneously; or
(2) Made without opportunity to claim the privilege. [1981 c.892
§40]
(1) The claim of a privilege, whether in the present proceeding or upon a
prior occasion, is not a proper subject of comment by judge or counsel.
No inference may be drawn from a claim of privilege.
(2) In jury cases, proceedings shall be conducted, to the extent
practicable, so as to facilitate the making of claims of privilege
without the knowledge of the jury.
(3) Upon request, any party against whom the jury might draw an
adverse inference from a claim of privilege is entitled to an instruction
that no inference may be drawn therefrom. [1981 c.892 §41] Unless expressly
repealed by section 98, chapter 892, Oregon Laws 1981, all existing
privileges either created under the Constitution or statutes of the State
of Oregon or developed by the courts of Oregon are recognized and shall
WITNESSES Except as provided in
ORS 40.310 to 40.335, any person who, having organs of sense can
perceive, and perceiving can make known the perception to others, may be
Subject to the
provisions of ORS 40.415, a witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness
has personal knowledge of the matter. Evidence to prove personal
knowledge may, but need not, consist of the testimony of the witness.
[1981 c.892 §44] (1) Before testifying, every
witness shall be required to declare that the witness will testify
truthfully, by oath or affirmation administered in a form calculated to
awaken the conscience of the witness and impress the mind of the witness
with the duty to do so.
(2) An oath may be administered as follows: The person who swears
holds up one hand while the person administering the oath asks: “Under
penalty of perjury, do you solemnly swear that the evidence you shall
give in the issue (or matter) now pending between _____ and _____ shall
be the truth, the whole truth and nothing but the truth, so help you
God?” If the oath is administered to any other than a witness, the same
form and manner may be used. The person swearing must answer in an
affirmative manner.
(3) An affirmation may be administered as follows: The person who
affirms holds up one hand while the person administering the affirmation
asks: “Under penalty of perjury, do you promise that the evidence you
shall give in the issue (or matter) now pending between _____ and _____
shall be the truth, the whole truth and nothing but the truth?” If the
affirmation is administered to any other than a witness, the same form
and manner may be used. The person affirming must answer in an
affirmative manner. [1981 c.892 §45]Except as provided in ORS 45.275
(8), an interpreter is subject to the provisions of the Oregon Evidence
Code relating to qualification as an expert and the administration of an
oath or affirmation that the interpreter will make a true and impartial
interpretation of the proceedings in an understandable manner using the
interpreter’s best skills and judgment in accordance with the standards
and ethics of the interpreter profession. [1981 c.892 §47; 1981 s.s. c.3
§138; 1989 c.224 §7; 1991 c.750 §7; 2001 c.242 §4; 2005 c.385 §3] The judge
presiding at the trial may not testify in that trial as a witness. No
objection need be made in order to preserve the point. [1981 c.892 §48] A member of the
jury may not testify as a witness before that jury in the trial of the
case in which the member has been sworn to sit as a juror. If the juror
is called so to testify, the opposing party shall be afforded an
opportunity to object out of the presence of the jury. [1981 c.892 §49] The credibility of a witness may
be attacked by any party, including the party calling the witness. [1981
c.892 §51] (1)
The credibility of a witness may be attacked or supported by evidence in
the form of opinion or reputation, but:
(a) The evidence may refer only to character for truthfulness or
untruthfulness; and
(b) Evidence of truthful character is admissible only after the
character of the witness for truthfulness has been attacked by opinion or
reputation evidence or otherwise.
(2) Specific instances of the conduct of a witness, for the purpose
of attacking or supporting the credibility of the witness, other than
conviction of crime as provided in ORS 40.355, may not be proved by
extrinsic evidence. Further, such specific instances of conduct may not,
even if probative of truthfulness or untruthfulness, be inquired into on
cross-examination of the witness. [1981 c.892 §52](1) For the purpose of attacking the credibility of a
witness, evidence that the witness has been convicted of a crime shall be
admitted if elicited from the witness or established by public record,
but only if the crime:
(a) Was punishable by death or imprisonment in excess of one year
under the law under which the witness was convicted; or
(b) Involved false statement or dishonesty.
(2)(a) If a defendant is charged with one or more of the crimes
listed in paragraph (b) of this subsection, and the defendant is a
witness, evidence that the defendant has been convicted of committing one
or more of the following crimes against a family or household member, as
defined in ORS 135.230, may be elicited from the defendant, or
established by public record, and admitted into evidence for the purpose
of attacking the credibility of the defendant:
(A) Assault in the fourth degree under ORS 163.160.
(B) Menacing under ORS 163.190.
(C) Harassment under ORS 166.065.
(D) Attempted assault in the fourth degree under ORS 163.160 (1).
(E) Attempted assault in the fourth degree under ORS 163.160 (3).
(F) Strangulation under ORS 163.187.
(b) Evidence may be admitted into evidence for the purpose of
attacking the credibility of a defendant under the provisions of this
subsection only if the defendant is charged with committing one or more
of the following crimes against a family or household member, as defined
in ORS 135.230:
(A) Aggravated murder under ORS 163.095.
(B) Murder under ORS 163.115.
(C) Manslaughter in the first degree under ORS 163.118.
(D) Manslaughter in the second degree under ORS 163.125.
(E) Assault in the first degree under ORS 163.185.
(F) Assault in the second degree under ORS 163.175.
(G) Assault in the third degree under ORS 163.165.
(H) Assault in the fourth degree under ORS 163.160.
(I) Rape in the first degree under ORS 163.375 (1)(a).
(J) Sodomy in the first degree under ORS 163.405 (1)(a).
(K) Unlawful sexual penetration in the first degree under ORS
163.411 (1)(a).
(L) Sexual abuse in the first degree under ORS 163.427 (1)(a)(B).
(M) Kidnapping in the first degree under ORS 163.235.
(N) Kidnapping in the second degree under ORS 163.225.
(O) Burglary in the first degree under ORS 164.225.
(P) Coercion under ORS 163.275.
(Q) Stalking under ORS 163.732.
(R) Violating a court’s stalking protective order under ORS 163.750.
(S) Menacing under ORS 163.190.
(T) Harassment under ORS 166.065.
(U) Strangulation under ORS 163.187.
(V) Attempting to commit a crime listed in this paragraph.
(3) Evidence of a conviction under this section is not admissible
if:
(a) A period of more than 15 years has elapsed since the date of
the conviction or of the release of the witness from the confinement
imposed for that conviction, whichever is the later date; or
(b) The conviction has been expunged by pardon, reversed, set aside
or otherwise rendered nugatory.
(4) When the credibility of a witness is attacked by evidence that
the witness has been convicted of a crime, the witness shall be allowed
to explain briefly the circumstances of the crime or former conviction;
once the witness explains the circumstances, the opposing side shall have
the opportunity to rebut the explanation.
(5) The pendency of an appeal therefrom does not render evidence of
a conviction inadmissible. Evidence of the pendency of an appeal is
admissible.
(6) An adjudication by a juvenile court that a child is within its
jurisdiction is not a conviction of a crime.
(7) A conviction of any of the statutory counterparts of offenses
designated as violations as described in ORS 153.008 may not be used to
impeach the character of a witness in any criminal or civil action or
proceeding. [1981 c.892 §53; 1987 c.2 §9; subsection (6) of 1993 Edition
enacted as 1993 c.379 §4; 1999 c.1051 §121; 2001 c.714 §1; 2003 c.577 §3]Note: 40.355 (7) was enacted into law by the Legislative Assembly
but was not added to or made a part of ORS chapter 40 or any series
therein by legislative action. See Preface to Oregon Revised Statutes for
further explanation. (1) The
credibility of a witness may be attacked by evidence that the witness
engaged in conduct or made statements showing bias or interest. In
examining a witness concerning a prior statement made by the witness,
whether written or not, the statement need not be shown nor its contents
disclosed to the witness at that time, but on request the statement shall
be shown or disclosed to the opposing party.
(2) If a witness fully admits the facts claimed to show the bias or
interest of the witness, additional evidence of that bias or interest
shall not be admitted. If the witness denies or does not fully admit the
facts claimed to show bias or interest, the party attacking the
credibility of the witness may then offer evidence to prove those facts.
(3) Evidence to support or rehabilitate a witness whose credibility
has been attacked by evidence of bias or interest shall be limited to
evidence showing a lack of bias or interest. [1981 c.892 §54; 1999 c.100
§1] Evidence of the
beliefs or opinions of a witness on matters of religion is not admissible
for the purpose of showing that by reason of their nature the credibility
of the witness is impaired or enhanced. [1981 c.892 §54a]
(1) The court shall exercise reasonable control over the mode and order
of interrogating witnesses and presenting evidence so as to make the
interrogation and presentation effective for the ascertainment of the
truth, avoid needless consumption of time and protect witnesses from
harassment or undue embarrassment.
(2) Cross-examination should be limited to the subject matter of
the direct examination and matters affecting the credibility of the
witness. The court may, in the exercise of discretion, permit inquiry
into additional matters as if on direct examination.
(3) Leading questions should not be used on the direct examination
of a witness except as may be necessary to develop the witness’
testimony. Ordinarily leading questions should be permitted on
cross-examination. When a party calls a hostile witness, an adverse
party, or a witness identified with an adverse party, interrogation may
be by leading questions. [1981 c.892 §54b] If a witness uses
a writing to refresh memory for the purpose of testifying, either while
testifying or before testifying if the court in its discretion determines
it is necessary in the interests of justice, an adverse party is entitled
to have the writing produced at the hearing, to inspect it, to
cross-examine the witness thereon, and to introduce into evidence those
portions which relate to the testimony of the witness. If it is claimed
that the writing contains matters not related to the subject matter of
the testimony, the court shall examine the writing in camera, excise any
portions not so related, and order delivery of the remainder to the party
entitled thereto. Any portion withheld over objections shall be preserved
and made available to the appellate court in the event of an appeal. If a
writing is not produced or delivered pursuant to order under this
section, the court shall make any order justice requires, except that in
criminal cases when the prosecution elects not to comply the order shall
be one striking the testimony or, if the court in its discretion
determines that the interests of justice so require, declaring a
mistrial. [1981 c.892 §55] (1) In examining a
witness concerning a prior statement made by the witness, whether written
or not, the statement need not be shown nor its contents disclosed to the
witness at that time, but on request the same shall be shown or disclosed
to opposing counsel.
(2) Extrinsic evidence of a prior inconsistent statement by a
witness is not admissible unless the witness is afforded an opportunity
to explain or deny the same and the opposite party is afforded an
opportunity to interrogate the witness thereon, or the interests of
justice otherwise require. This provision does not apply to admissions of
a party-opponent as defined in ORS 40.450. [1981 c.892 §55a; 1983 c.433
§2; 1983 c.740 §5] At the request of a party
the court may order witnesses excluded until the time of final argument,
and it may make the order of its own motion. This rule does not authorize
exclusion of:
(1) A party who is a natural person;
(2) An officer or employee of a party which is not a natural person
designated as its representative by its attorney;
(3) A person whose presence is shown by a party to be essential to
the presentation of the party’s cause; or
(4) The victim in a criminal case. [1981 c.892 §56; 1987 c.2 §5;
2003 c.14 §20]OPINIONS AND EXPERT TESTIMONY If the witness
is not testifying as an expert, testimony of the witness in the form of
opinions or inferences is limited to those opinions or inferences which
are:
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of testimony of the witness or
the determination of a fact in issue. [1981 c.892 §57] If scientific, technical or
other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training or education may testify
thereto in the form of an opinion or otherwise. [1981 c.892 §58]Bases of opinion testimony by experts. The facts
or data in the particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject, the
facts or data need not be admissible in evidence. [1981 c.892 §59]Opinion on ultimate issue. Testimony in the form
of an opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier of fact.
[1981 c.892 §60] Disclosure of fact or data underlying expert
opinion. An expert may testify in terms of opinion or inference and give
reasons therefor without prior disclosure of the underlying facts or
data, unless the court requires otherwise. The expert may in any event be
required to disclose the underlying facts or data on cross-examination.
[1981 c.892 §61] As used in
ORS 40.450 to 40.475, unless the context requires otherwise:
(1) A “statement” is:
(a) An oral or written assertion; or
(b) Nonverbal conduct of a person, if intended as an assertion.
(2) A “declarant” is a person who makes a statement.
(3) “Hearsay” is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.
(4) A statement is not hearsay if:
(a) The declarant testifies at the trial or hearing and is subject
to cross-examination concerning the statement, and the statement is:
(A) Inconsistent with the testimony of the witness and was given
under oath subject to the penalty of perjury at a trial, hearing or other
proceeding, or in a deposition;
(B) Consistent with the testimony of the witness and is offered to
rebut an inconsistent statement or an express or implied charge against
the witness of recent fabrication or improper influence or motive; or
(C) One of identification of a person made after perceiving the
person.
(b) The statement is offered against a party and is:
(A) That party’s own statement, in either an individual or a
representative capacity;
(B) A statement of which the party has manifested the party’s
adoption or belief in its truth;
(C) A statement by a person authorized by the party to make a
statement concerning the subject;
(D) A statement by the party’s agent or servant concerning a matter
within the scope of the agency or employment, made during the existence
of the relationship; or
(E) A statement by a coconspirator of a party during the course and
in furtherance of the conspiracy.
(c) The statement is made in a deposition taken in the same
proceeding pursuant to ORCP 39 I. [1981 c.892 §62; 1987 c.275 §3] Hearsay is not admissible except as
provided in ORS 40.450 to 40.475 or as otherwise provided by law. [1981
c.892 §63] Hearsay exceptions; availability of declarant
immaterial. The following are not excluded by ORS 40.455, even though the
declarant is available as a witness:
(1) (Reserved.)
(2) A statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the
event or condition.
(3) A statement of the declarant’s then existing state of mind,
emotion, sensation or physical condition, such as intent, plan, motive,
design, mental feeling, pain or bodily health, but not including a
statement of memory or belief to prove the fact remembered or believed
unless it relates to the execution, revocation, identification, or terms
of the declarant’s will.
(4) Statements made for purposes of medical diagnosis or treatment
and describing medical history, or past or present symptoms, pain or
sensations, or the inception or general character of the cause of
external source thereof insofar as reasonably pertinent to diagnosis or
treatment.
(5) A memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection to
enable the witness to testify fully and accurately, shown to have been
made or adopted by the witness when the matter was fresh in the memory of
the witness and to reflect that knowledge correctly. If admitted, the
memorandum or record may be read into evidence but may not itself be
received as an exhibit unless offered by an adverse party.
(6) A memorandum, report, record, or data compilation, in any form,
of acts, events, conditions, opinions, or diagnoses, made at or near the
time by, or from information transmitted by, a person with knowledge, if
kept in the course of a regularly conducted business activity, and if it
was the regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as shown by the
testimony of the custodian or other qualified witness, unless the source
of information or the method of circumstances of preparation indicate
lack of trustworthiness. The term “business” as used in this subsection
includes business, institution, association, profession, occupation, and
calling of every kind, whether or not conducted for profit.
(7) Evidence that a matter is not included in the memoranda,
reports, records, or data compilations, and in any form, kept in
accordance with the provisions of subsection (6) of this section, to
prove the nonoccurrence or nonexistence of the matter, if the matter was
of a kind of which a memorandum, report, record, or data compilation was
regularly made and preserved, unless the sources of information or other
circumstances indicate lack of trustworthiness.
(8) Records, reports, statements, or data compilations, in any
form, of public offices or agencies, setting forth:
(a) The activities of the office or agency;
(b) Matters observed pursuant to duty imposed by law as to which
matters there was a duty to report, excluding however, in criminal cases
matters observed by police officers and other law enforcement personnel;
or
(c) In civil actions and proceedings and against the government in
criminal cases, factual findings, resulting from an investigation made
pursuant to authority granted by law, unless the sources of information
or other circumstances indicate lack of trustworthiness.
(9) Records or data compilations, in any form, of births, fetal
deaths, deaths or marriages, if the report thereof was made to a public
office pursuant to requirements of law.
(10) To prove the absence of a record, report, statement, or data
compilation, in any form, or the nonoccurrence or nonexistence of a
matter of which a record, report, statement, or data compilation, in any
form, was regularly made and preserved by a public office or agency,
evidence in the form of a certification in accordance with ORS 40.510, or
testimony, that diligent search failed to disclose the record, report,
statement, or data compilation, or entry.
(11) Statements of births, marriages, divorces, deaths, legitimacy,
ancestry, relationship by blood or marriage, or other similar facts of
personal or family history, contained in a regularly kept record of a
religious organization.
(12) A statement of fact contained in a certificate that the maker
performed a marriage or other ceremony or administered a sacrament, made
by a member of the clergy, public official, or other person authorized by
the rules or practices of a religious organization or by law to perform
the act certified, and purporting to have been issued at the time of the
act or within a reasonable time thereafter.
(13) Statements of facts concerning personal or family history
contained in family bibles, genealogies, charts, engravings on rings,
inscriptions on family portraits, engravings on urns, crypts, or
tombstones, or the like.
(14) The record of a document purporting to establish or affect an
interest in property, as proof of content of the original recorded
document and its execution and delivery by each person by whom it
purports to have been executed, if the record is a record of a public
office and an applicable statute authorizes the recording of documents of
that kind in that office.
(15) A statement contained in a document purporting to establish or
affect an interest in property if the matter stated was relevant to the
purpose of the document, unless dealings with the property since the
document was made have been inconsistent with the truth of the statement
or the purport of the document.
(16) Statements in a document in existence 20 years or more the
authenticity of which is established.
(17) Market quotations, tabulations, lists, directories, or other
published compilations, generally used and relied upon by the public or
by persons in particular occupations.
(18) (Reserved.)
(18a)(a) A complaint of sexual misconduct, complaint of abuse as
defined in ORS 107.705 or 419B.005, complaint of abuse of an elderly
person, as those terms are defined in ORS 124.050, or a complaint
relating to a violation of ORS 163.205 or 164.015 in which a person 65
years of age or older is the victim, made by the witness after the
commission of the alleged misconduct or abuse at issue. Except as
provided in paragraph (b) of this subsection, such evidence must be
confined to the fact that the complaint was made.
(b) A statement made by a person concerning an act of abuse as
defined in ORS 107.705 or 419B.005, a statement made by a person
concerning an act of abuse of an elderly person, as those terms are
defined in ORS 124.050, or a statement made by a person concerning a
violation of ORS 163.205 or 164.015 in which a person 65 years of age or
older is the victim, is not excluded by ORS 40.455 if the declarant
either testifies at the proceeding and is subject to cross-examination,
or is unavailable as a witness but was chronologically or mentally under
12 years of age when the statement was made or was 65 years of age or
older when the statement was made. However, if a declarant is
unavailable, the statement may be admitted in evidence only if the
proponent establishes that the time, content and circumstances of the
statement provide indicia of reliability, and in a criminal trial that
there is corroborative evidence of the act of abuse and of the alleged
perpetrator’s opportunity to participate in the conduct and that the
statement possesses indicia of reliability as is constitutionally
required to be admitted. No statement may be admitted under this
paragraph unless the proponent of the statement makes known to the
adverse party the proponent’s intention to offer the statement and the
particulars of the statement no later than 15 days before trial, except
for good cause shown. For purposes of this paragraph, in addition to
those situations described in ORS 40.465 (1), the declarant shall be
considered “unavailable” if the declarant has a substantial lack of
memory of the subject matter of the statement, is presently incompetent
to testify, is unable to communicate about the abuse or sexual conduct
because of fear or other similar reason or is substantially likely, as
established by expert testimony, to suffer lasting severe emotional
trauma from testifying. Unless otherwise agreed by the parties, the court
shall examine the declarant in chambers and on the record or outside the
presence of the jury and on the record. The examination shall be
conducted immediately prior to the commencement of the trial in the
presence of the attorney and the legal guardian or other suitable person
as designated by the court. If the declarant is found to be unavailable,
the court shall then determine the admissibility of the evidence. The
determinations shall be appealable under ORS 138.060 (1)(c) or (2)(a).
The purpose of the examination shall be to aid the court in making its
findings regarding the availability of the declarant as a witness and the
reliability of the statement of the declarant. In determining whether a
statement possesses indicia of reliability under this paragraph, the
court may consider, but is not limited to, the following factors:
(A) The personal knowledge of the declarant of the event;
(B) The age and maturity of the declarant or extent of disability
if the declarant is a person with developmental disabilities;
(C) Certainty that the statement was made, including the
credibility of the person testifying about the statement and any motive
the person may have to falsify or distort the statement;
(D) Any apparent motive the declarant may have to falsify or
distort the event, including bias, corruption or coercion;
(E) The timing of the statement of the declarant;
(F) Whether more than one person heard the statement;
(G) Whether the declarant was suffering pain or distress when
making the statement;
(H) Whether the declarant’s young age or disability makes it
unlikely that the declarant fabricated a statement that represents a
graphic, detailed account beyond the knowledge and experience of the
declarant;
(I) Whether the statement has internal consistency or coherence and
uses terminology appropriate to the declarant’s age or to the extent of
the declarant’s disability if the declarant is a person with
developmental disabilities;
(J) Whether the statement is spontaneous or directly responsive to
questions; and
(K) Whether the statement was elicited by leading questions.
(c) This subsection applies to all civil, criminal and juvenile
proceedings.
(d) This subsection applies to a child declarant, a declarant who
is an elderly person as defined in ORS 124.050 or an adult declarant with
developmental disabilities. For the purposes of this subsection,
“developmental disabilities” means any disability attributable to mental
retardation, autism, cerebral palsy, epilepsy or other disabling
neurological condition that requires training or support similar to that
required by persons with mental retardation, if either of the following
apply:
(A) The disability originates before the person attains 22 years of
age, or if the disability is attributable to mental retardation the
condition is manifested before the person attains 18 years of age, the
disability can be expected to continue indefinitely, and the disability
constitutes a substantial handicap to the ability of the person to
function in society.
(B) The disability results in a significant subaverage general
intellectual functioning with concurrent deficits in adaptive behavior
that are manifested during the developmental period.
(19) Reputation among members of a person’s family by blood,
adoption or marriage, or among a person’s associates, or in the
community, concerning a person’s birth, adoption, marriage, divorce,
death, legitimacy, relationship by blood or adoption or marriage,
ancestry, or other similar fact of a person’s personal or family history.
(20) Reputation in a community, arising before the controversy, as
to boundaries of or customs affecting lands in the community, and
reputation as to events of general history important to the community or
state or nation in which located.
(21) Reputation of a person’s character among associates of the
person or in the community.
(22) Evidence of a final judgment, entered after a trial or upon a
plea of guilty, but not upon a plea of no contest, adjudging a person
guilty of a crime other than a traffic offense, to prove any fact
essential to sustain the judgment, but not including, when offered by the
government in a criminal prosecution for purposes other than impeachment,
judgments against persons other than the accused. The pendency of an
appeal may be shown but does not affect admissibility.
(23) Judgments as proof of matters of personal, family or general
history, or boundaries, essential to the judgment, if the same would be
provable by evidence of reputation.
(24) Notwithstanding the limits contained in subsection (18a) of
this section, in any proceeding in which a child under 12 years of age at
the time of trial, or a person with developmental disabilities as
described in subsection (18a)(d) of this section, may be called as a
witness to testify concerning an act of abuse, as defined in ORS
419B.005, or sexual conduct performed with or on the child or person with
developmental disabilities by another, the testimony of the child or
person with developmental disabilities taken by contemporaneous
examination and cross-examination in another place under the supervision
of the trial judge and communicated to the courtroom by closed circuit
television or other audiovisual means. Testimony will be allowed as
provided in this subsection only if the court finds that there is a
substantial likelihood, established by expert testimony, that the child
or person with developmental disabilities will suffer severe emotional or
psychological harm if required to testify in open court. If the court
makes such a finding, the court, on motion of a party, the child, the
person with developmental disabilities or the court in a civil
proceeding, or on motion of the district attorney, the child or the
person with developmental disabilities in a criminal or juvenile
proceeding, may order that the testimony of the child or the person with
developmental disabilities be taken as described in this subsection. Only
the judge, the attorneys for the parties, the parties, individuals
necessary to operate the equipment and any individual the court finds
would contribute to the welfare and well-being of the child or person
with developmental disabilities may be present during the testimony of
the child or person with developmental disabilities.
(25)(a) Any document containing data prepared or recorded by the
Oregon State Police pursuant to ORS 813.160 (1)(b)(C) or (E), or pursuant
to ORS 475.235 (4), if the document is produced by data retrieval from
the Law Enforcement Data System or other computer system maintained and
operated by the Oregon State Police, and the person retrieving the data
attests that the information was retrieved directly from the system and
that the document accurately reflects the data retrieved.
(b) Any document containing data prepared or recorded by the Oregon
State Police that is produced by data retrieval from the Law Enforcement
Data System or other computer system maintained and operated by the
Oregon State Police and that is electronically transmitted through public
or private computer networks under an electronic signature adopted by the
Oregon State Police if the person receiving the data attests that the
document accurately reflects the data received.
(c) Notwithstanding any statute or rule to the contrary, in any
criminal case in which documents are introduced under the provisions of
this subsection, the defendant may subpoena the analyst, as defined in
ORS 475.235 (6), or other person that generated or keeps the original
document for the purpose of testifying at the preliminary hearing and
trial of the issue. Except as provided in ORS 44.550 to 44.566, no charge
shall be made to the defendant for the appearance of the analyst or other
person.
(26)(a) A statement that purports to narrate, describe, report or
explain an incident of domestic violence, as defined in ORS 135.230, made
by a victim of the domestic violence within 24 hours after the incident
occurred, if the statement:
(A) Was recorded, either electronically or in writing, or was made
to a peace officer as defined in ORS 161.015, corrections officer, youth
correction officer, parole and probation officer, emergency medical
technician or firefighter; and
(B) Has sufficient indicia of reliability.
(b) In determining whether a statement has sufficient indicia of
reliability under paragraph (a) of this subsection, the court shall
consider all circumstances surrounding the statement. The court may
consider, but is not limited to, the following factors in determining
whether a statement has sufficient indicia of reliability:
(A) The personal knowledge of the declarant.
(B) Whether the statement is corroborated by evidence other than
statements that are subject to admission only pursuant to this subsection.
(C) The timing of the statement.
(D) Whether the statement was elicited by leading questions.
(E) Subsequent statements made by the declarant. Recantation by a
declarant is not sufficient reason for denying admission of a statement
under this subsection in the absence of other factors indicating
unreliability.
(27) A report prepared by a forensic scientist that contains the
results of a presumptive test conducted by the forensic scientist as
described in ORS 475.235, if the forensic scientist attests that the
report accurately reflects the results of the presumptive test.
(28)(a) A statement not specifically covered by any of the
foregoing exceptions but having equivalent circumstantial guarantees of
trustworthiness, if the court determines that:
(A) The statement is relevant;
(B) The statement is more probative on the point for which it is
offered than any other evidence that the proponent can procure through
reasonable efforts; and
(C) The general purposes of the Oregon Evidence Code and the
interests of justice will best be served by admission of the statement
into evidence.
(b) A statement may not be admitted under this subsection unless
the proponent of it makes known to the adverse party the intention to
offer the statement and the particulars of it, including the name and
address of the declarant, sufficiently in advance of the trial or
hearing, or as soon as practicable after it becomes apparent that such
statement is probative of the issues at hand, to provide the adverse
party with a fair opportunity to prepare to meet it. [1981 c.892 §64;
1989 c.300 §1; 1989 c.881 §1; 1991 c.391 §1; 1995 c.200 §1; 1995 c.476
§1; 1995 c.804 §2; 1999 c.59 §13; 1999 c.674 §1; 1999 c.945 §1; 2001
c.104 §11; 2001 c.533 §1; 2001 c.870 §5; 2003 c.538 §2; 2005 c.118 §3](1) “Unavailability as a witness” includes situations in
which the declarant:
(a) Is exempted by ruling of the court on the ground of privilege
from testifying concerning the subject matter of a statement;
(b) Persists in refusing to testify concerning the subject matter
of a statement despite an order of the court to do so;
(c) Testifies to a lack of memory of the subject matter of a
statement;
(d) Is unable to be present or to testify at the hearing because of
death or then existing physical or mental illness or infirmity; or
(e) Is absent from the hearing and the proponent of the declarant’s
statement has been unable to procure the declarant’s attendance (or in
the case of an exception under subsection (3)(b), (c) or (d) of this
section, the declarant’s attendance or testimony) by process or other
reasonable means.
(2) A declarant is not unavailable as a witness if the declarant’s
exemption, refusal, claim of lack of memory, inability, or absence is due
to the procurement or wrongdoing of the proponent of the declarant’s
statement for the purpose of preventing the witness from attending or
testifying.
(3) The following are not excluded by ORS 40.455 if the declarant
is unavailable as a witness:
(a) Testimony given as a witness at another hearing of the same or
a different proceeding, or in a deposition taken in compliance with law
in the course of the same or another proceeding, if the party against
whom the testimony is now offered, or, in a civil action or proceeding a
predecessor in interest, had an opportunity and similar motive to develop
the testimony by direct, cross, or redirect examination.
(b) A statement made by a declarant while believing that death was
imminent, concerning the cause or circumstances of what the declarant
believed to be impending death.
(c) A statement which was at the time of its making so far contrary
to the declarant’s pecuniary or proprietary interest, or so far tended to
subject the declarant to civil or criminal liability, or to render
invalid a claim by the declarant against another, that a reasonable
person in the declarant’s position would not have made the statement
unless the person believed it to be true. A statement tending to expose
the declarant to criminal liability and offered to exculpate the accused
is not admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement.
(d)(A) A statement concerning the declarant’s own birth, adoption,
marriage, divorce, legitimacy, relationship by blood or adoption or
marriage, ancestry, or other similar fact of personal or family history,
even though the declarant had no means of acquiring personal knowledge of
the matter stated; or
(B) A statement concerning the foregoing matters, and death also,
of another person, if the declarant was related to the other by blood,
adoption, or marriage or was so intimately associated with the other’s
family as to be likely to have accurate information concerning the matter
declared.
(e) A statement made at or near the time of the transaction by a
person in a position to know the facts stated therein, acting in the
person’s professional capacity and in the ordinary course of professional
conduct.
(f) A statement offered against a party who intentionally or
knowingly engaged in criminal conduct that directly caused the death of
the declarant, or directly caused the declarant to become unavailable as
a witness because of incapacity or incompetence.
(g) A statement offered against a party who engaged in, directed or
otherwise participated in wrongful conduct that was intended to cause the
declarant to be unavailable as a witness, and did cause the declarant to
be unavailable.
(h) A statement not specifically covered by any of the foregoing
exceptions but having equivalent circumstantial guarantees of
trustworthiness, if the court determines that (A) the statement is
offered as evidence of a material fact; (B) the statement is more
probative on the point for which it is offered than any other evidence
which the proponent can procure through reasonable efforts; and (C) the
general purposes of the Oregon Evidence Code and the interests of justice
will best be served by admission of the statement into evidence. However,
a statement may not be admitted under this paragraph unless the proponent
of it makes known to the adverse party the intention to offer the
statement and the particulars of it, including the name and address of
the declarant, sufficiently in advance of the trial or hearing, or as
soon as practicable after it becomes apparent that the statement is
probative of the issues at hand, to provide the adverse party with a fair
opportunity to prepare to meet it. [1981 c.892 §65; 2005 c.458 §1]Note: Section 2, chapter 458, Oregon Laws 2005, provides:
Sec. 2. (1) Except as provided in subsection (2) of this section,
the amendments to ORS 40.465 by section 1 of this 2005 Act apply to all
statements, whether made before, on or after the effective date of this
2005 Act [January 1, 2006].
(2) The amendments to ORS 40.465 by section 1 of this 2005 Act do
not apply to an action or proceeding commenced before the effective date
of this 2005 Act. [2005 c.458 §2] Hearsay included within
hearsay is not excluded under ORS 40.455 if each part of the combined
statements conforms with an exception set forth in ORS 40.460 or 40.465.
[1981 c.892 §66]
(1) The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent claims.
(2) By way of illustration only, and not by way of limitation, the
following are examples of authentication or identification conforming
with the requirements of subsection (1) of this section:
(a) Testimony by a witness with knowledge that a matter is what it
is claimed to be.
(b) Nonexpert opinion as to the genuineness of handwriting, based
upon familiarity not acquired for purposes of the litigation.
(c) Comparison by the trier of fact or by expert witnesses with
specimens which have been authenticated.
(d) Appearance, contents, substance, internal patterns or other
distinctive characteristics, taken in conjunction with circumstances.
(e) Identification of a voice, whether heard firsthand or through
mechanical or electronic transmission or recording, by opinion based upon
hearing the voice at any time under circumstances connecting it with the
alleged speaker.
(f) Telephone conversations, by evidence that a call was made to
the number assigned at the time by the telephone company to a particular
person or business, if:
(A) In the case of a person, circumstances, including
self-identification, show the person answering to be the one called; or
(B) In the case of a business, the call was made to a place of
business and the conversation related to business reasonably transacted
over the telephone.
(g) Evidence that a writing authorized by law to be recorded or
filed and in fact recorded or filed in a public office, or a purported
public record, report, statement, or data compilation, in any form, is
from the public office where items of this nature are kept.
(h) Evidence that a document or data compilation, in any form:
(A) Is in such condition as to create no suspicion concerning its
authenticity;
(B) Was in a place where it, if authentic, would likely be; and
(C) Has been in existence 20 years or more at the time it is
offered.
(i) Evidence describing a process or system used to produce a
result and showing that the process or system produces an accurate result.
(j) Any method of authentication or identification otherwise
provided by law or by other rules prescribed by the Supreme Court. [1981
c.892 §68] (1) Extrinsic evidence of
authenticity as a condition precedent to admissibility is not required
with respect to the following:
(a) A document bearing a seal purporting to be that of the United
States, or of any state, district, commonwealth, territory, or insular
possession thereof, or the Panama Canal Zone, or the Trust Territory of
the Pacific Islands, or of a political subdivision, department, officer,
or agency thereof, and a signature purporting to be an attestation or
execution.
(b) A document purporting to bear the signature, in an official
capacity, of an officer or employee of any entity included in subsection
(1)(a) of this section, having no seal, if a public officer having a seal
and having official duties in the district or political subdivision of
the officer or employee certifies under seal that the signer has the
official capacity and that the signature is genuine.
(c) A document purporting to be:
(A) Executed or attested in an official capacity by a person
authorized by the laws of a foreign country to make the execution or
attestation; and
(B) Accompanied by a final certification as provided in subsection
(3) of this section as to the genuineness of the signature and official
position of:
(i) The executing or attesting person; or
(ii) Any foreign official whose certificate of genuineness of
signature and official position relates to the execution or attestation
or is in a chain of certificates of genuineness of signature and official
position relating to the execution or attestation.
(d) A copy of an official record or report or entry therein, or of
a document authorized by law to be recorded or filed and actually
recorded or filed in a public office, including data compilations in any
form, certified as correct by the custodian or other person authorized to
make the certification, by certificate complying with subsection (1)(a),
(b) or (c) of this section or otherwise complying with any law or rule
prescribed by the Supreme Court.
(e) Books, pamphlets or other publications purporting to be issued
by public authority.
(f) Printed materials purporting to be newspapers or periodicals.
(g) Inscriptions, signs, tags or labels purporting to have been
affixed in the course of business and indicating ownership, control or
origin.
(h) Documents accompanied by a certificate of acknowledgment
executed in the manner provided by law by a notary public or other
officer authorized by law to take acknowledgments.
(i) Commercial paper, signatures thereon and documents relating
thereto to the extent provided by the Uniform Commercial Code or ORS
chapter 83.
(j) Any signature, documents or other matter declared by law to be
presumptively or prima facie genuine or authentic.
(k)(A) A document bearing a seal purporting to be that of a
federally recognized Indian tribal government or of a political
subdivision, department, officer, or agency thereof, and a signature
purporting to be an attestation or execution.
(B) A document purporting to bear the signature, in an official
capacity, of an officer or employee of any entity included in
subparagraph (A) of this paragraph, having no seal, if a public officer
having a seal and having official duties in the district or political
subdivision or the officer or employee certifies under seal that the
signer has the official capacity and that the signature is genuine.
(L)(A) Any document containing data prepared or recorded by the
Oregon State Police pursuant to ORS 813.160 (1)(b)(C) or (E), or pursuant
to ORS 475.235 (4), if the document is produced by data retrieval from
the Law Enforcement Data System or other computer system maintained and
operated by the Oregon State Police, and the person retrieving the data
attests that the information was retrieved directly from the system and
that the document accurately reflects the data retrieved.
(B) Any document containing data prepared or recorded by the Oregon
State Police that is produced by data retrieval from the Law Enforcement
Data System or other computer system maintained and operated by the
Oregon State Police and that is electronically transmitted through public
or private computer networks under an electronic signature adopted by the
Oregon State Police if the person receiving the data attests that the
document accurately reflects the data received.
(m) A report prepared by a forensic scientist that contains the
results of a presumptive test conducted by the forensic scientist as
described in ORS 475.235, if the forensic scientist attests that the
report accurately reflects the results of the presumptive test.
(2) For the purposes of this section, “signature” includes any
symbol executed or adopted by a party with present intention to
authenticate a writing.
(3) A final certification for purposes of subsection (1)(c) of this
section may be made by a secretary of embassy or legation, consul
general, consul, vice consul, or consular agent of the United States, or
a diplomatic or consular official of the foreign country assigned or
accredited to the United States. If reasonable opportunity has been given
to all parties to investigate the authenticity and accuracy of official
documents, the court may, for good cause shown, order that they be
treated as presumptively authentic without final certification or permit
them to be evidenced by an attested summary with or without final
certification. [1981 c.892 §69; 1995 c.200 §2; 1999 c.674 §2; 2001 c.104
§12; 2003 c.14 §21; 2003 c.538 §3; 2005 c.22 §31; 2005 c.118 §4] The
testimony of a subscribing witness is not necessary to authenticate a
writing unless required by the laws of the jurisdiction whose laws govern
the validity of the writing. [1981 c.892 §70]CONTENTS OF WRITINGS, RECORDINGS AND PHOTOGRAPHSDefinitions for ORS 40.550 to 40.585. As used in
ORS 40.550 to 40.585, unless the context requires otherwise:
(1) “Duplicate” means a counterpart produced by the same impression
as the original, or from the same matrix, or by means of photography,
including enlargements and miniatures, by mechanical or electronic
re-recording, by chemical reproduction, by optical imaging or by other
equivalent techniques that accurately reproduce the original, including
reproduction by facsimile machines if the reproduction is identified as a
facsimile and printed on nonthermal paper.
(2) “Original” of a writing or recording is the writing or
recording itself or any counterpart intended to have the same effect by a
person executing or issuing it. An “original” of a photograph includes
the negative or any print therefrom. If data are stored in a computer or
similar device, any printout or other output readable by sight, shown to
reflect the data accurately, is an “original.”
(3) “Photographs” includes still photographs, X-ray films, video
tapes and motion pictures.
(4) “Writings” and “recordings” mean letters, words or numbers, or
their equivalent, set down by handwriting, typewriting, printing,
photostating, photographing, magnetic impulse, optical imaging,
mechanical or electronic recording or other form of data compilation.
[1981 c.892 §71; 1991 c.857 §1; 1995 c.760 §1] To prove the content of
a writing, recording or photograph, the original writing, recording or
photograph is required, except as otherwise provided in ORS 40.550 to
40.585 or other law. [1981 c.892 §72]Admissibility of duplicates. A duplicate is
admissible to the same extent as an original unless:
(1) A genuine question is raised as to the authenticity of the
original; or
(2) In the circumstances it would be unfair to admit the duplicate
in lieu of the original. [1981 c.892 §73] (1) If any
business, institution or member of a profession or calling, in the
regular course of business or activity, has kept or recorded any
memorandum, writing, entry, print, representation or a combination
thereof, of any act, transaction, occurrence or event, and in the regular
course of business has caused any or all of the same to be recorded,
copied or reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic, optical imaging or other process that
accurately reproduces or forms a durable medium for so reproducing the
original, the original may be destroyed in the regular course of business
unless held in a custodial or fiduciary capacity and the principal or
true owner has not authorized destruction or unless its preservation is
required by law. Such reproduction, when satisfactorily identified, is as
admissible in evidence as the original itself in any judicial or
administrative proceeding whether the original is in existence or not and
an enlargement or facsimile of such reproduction is likewise admissible
in evidence if the original reproduction is in existence and available
for inspection under direction of the court. The introduction of a
reproduced record, enlargement or facsimile does not preclude admission
of the original.
(2) If any department or agency of government, in the regular
course of business or activity, has kept or recorded any memorandum,
writing, entry, print, representation or combination thereof, of any act,
transaction, occurrence or event, and in the regular course of business,
and in accordance with ORS 192.040 to 192.060 and 192.105, has caused any
or all of the same to be recorded, copied or reproduced by any
photographic, photostatic, microfilm, micro-card, miniature photographic,
optical imaging or other process that accurately reproduces or forms a
durable medium for so reproducing the original, the original may be
destroyed in the regular course of business unless held in a custodial or
fiduciary capacity and the principal or true owner has not authorized
destruction or unless its preservation is required by law. Such
reproduction, when satisfactorily identified, is as admissible in
evidence as the original itself in any judicial or administrative
proceeding whether the original is in existence or not and an enlargement
or facsimile of such reproduction is likewise admissible in evidence if
the original reproduction is in existence and available for inspection
under direction of the court. The introduction of a reproduced record,
enlargement or facsimile does not preclude admission of the original.
[1995 c.760 §3] The
original is not required, and other evidence of the contents of a
writing, recording or photograph is admissible when:
(1) All originals are lost or have been destroyed, unless the
proponent lost or destroyed them in bad faith;
(2) An original cannot be obtained by any available judicial
process or procedure;
(3) At a time when an original was under the control of the party
against whom offered, that party was put on notice, by the pleadings or
otherwise, that the contents would be a subject of proof at the hearing,
and the party does not produce the original at the hearing; or
(4) The writing, recording or photograph is not closely related to
a controlling issue. [1981 c.892 §74] The contents of an official
record or of a document authorized to be recorded or filed and actually
recorded or filed, including data compilations in any form, if otherwise
admissible, may be proved by copy, certified as correct in accordance
with ORS 40.510 or testified to be correct by a witness who has compared
it with the original. If such a copy cannot be obtained by the exercise
of reasonable diligence, then other evidence of the contents may be
given. [1981 c.892 §75; 1983 c.433 §3]Summaries. The contents of voluminous writings,
recordings or photographs which cannot conveniently be examined in court
may be presented in the form of a chart, summary or calculation. The
originals, or duplicates, shall be made available for examination or
copying, or both, by other parties at a reasonable time and place. The
court may order that they be produced in court. [1981 c.892 §76]Testimony or written admission of party. Contents
of writings, recordings or photographs may be proved by the testimony or
deposition of the party against whom offered or by the party’s written
admission, without accounting for the nonproduction of the original.
[1981 c.892 §77] When the
admissibility of other evidence of contents of writings, recordings or
photographs under ORS 40.550 to 40.585 depends upon the fulfillment of a
condition of fact, the question whether the condition has been fulfilled
is ordinarily for the court to determine in accordance with ORS 40.030.
However, the issue is for the trier of fact to determine as in the case
of other issues of fact when the issue raised is:
(1) Whether the asserted writing ever existed;
(2) Whether another writing, recording or photograph produced at
the trial is the original; or
(3) Whether the other evidence of contents correctly reflects the
contents. [1981 c.892 §78]
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