2005 Oregon Code - Chapter 41 :: Chapter 41 - Evidence Generally
Chapter 41 — Evidence Generally
2005 EDITION
EVIDENCE GENERALLY
EVIDENCE AND WITNESSES
41.010Â Â Â Â Â Â Judicial evidence; proof
41.110Â Â Â Â Â Â Satisfactory evidence
41.270Â Â Â Â Â Â Proof of usage
41.415Â Â Â Â Â Â Photograph of victim in prosecution for criminal homicide
41.500      “Secondary evidence” defined for ORS 41.500 to 41.580
41.510Â Â Â Â Â Â Indispensable evidence
41.520Â Â Â Â Â Â Evidence to prove a will
41.530Â Â Â Â Â Â Evidence of representations as to third persons
41.560Â Â Â Â Â Â Grant or assignment of trust
41.570Â Â Â Â Â Â Contracts and communications made by telegraph
41.580Â Â Â Â Â Â Statute of frauds
41.660Â Â Â Â Â Â Admissibility of objects cognizable by the senses
41.675Â Â Â Â Â Â Inadmissibility of certain data provided to peer review body of health care providers and health care groups
41.685Â Â Â Â Â Â Inadmissibility of certain data relating to emergency medical services system
41.740Â Â Â Â Â Â Parol evidence rule
41.815Â Â Â Â Â Â Evidence of compliance with or attempt to comply with ORCP 32 I; when admissible
41.905Â Â Â Â Â Â Admissibility of certain traffic offense procedures in subsequent civil action
41.910Â Â Â Â Â Â Certain intercepted communications inadmissible
41.930Â Â Â Â Â Â Admissibility of copies of original records
41.945Â Â Â Â Â Â Application of ORS 41.930 and ORCP 55 H
     41.010
Judicial evidence; proof. Judicial evidence is the means, sanctioned by
law, of ascertaining in a judicial proceeding the truth respecting a question
of fact. Proof is the effect of evidence, the establishment of the fact by
evidence.
     41.020
[Repealed by 1981 c.892 §98]
     41.030
[Repealed by 1981 c.892 §98]
     41.040
[Repealed by 1981 c.892 §98]
     41.050
[Repealed by 1981 c.892 §98]
     41.060
[Repealed by 1981 c.892 §98]
     41.070
[Repealed by 1981 c.892 §98]
     41.080
[Repealed by 1981 c.892 §98]
     41.090
[Repealed by 1981 c.892 §98]
     41.100
[Repealed by 1981 c.892 §98]
     41.110
Satisfactory evidence. Satisfactory evidence is that which ordinarily
produces moral certainty or conviction in an unprejudiced mind. It alone will
justify a verdict. Evidence less than this is insufficient evidence.
     41.120
[Repealed by 1981 c.892 §98]
     41.130
[Repealed by 1981 c.892 §98]
     41.140
[Repealed by 1981 c.892 §98]
     41.150
[Repealed by 1981 c.892 §98]
     41.210
[Repealed by 1981 c.892 §98]
     41.220
[Repealed by 1981 c.892 §98]
     41.230
[Repealed by 1981 c.892 §98]
     41.240
[Repealed by 1981 c.892 §98]
     41.250
[Repealed by 1981 c.892 §98]
     41.260
[Repealed by 1981 c.892 §98]
     41.270
Proof of usage. (1) Usage shall be proved by the testimony of at least two
witnesses.
     (2) Evidence may be given of usage to explain the true character of an act, contract or instrument when such true character is not otherwise plain, but usage is never admissible except as a means of interpretation. [Amended by 1981 c.892 §86]
     41.280
[Repealed by 1981 c.892 §98]
     41.310
[Repealed by 1981 c.892 §98]
     41.315
[1987 c.774 §§1,2; repealed by 1995 c.688 §6]
     41.320
[Repealed by 1981 c.892 §98]
     41.330
[Repealed by 1981 c.892 §98]
     41.340
[Repealed by 1981 c.892 §98]
     41.350
[Amended by 1971 c.127 §1; repealed by 1981 c.892 §98]
     41.360
[Amended by 1957 c.679 §1; 1961 c.726 §399; repealed by 1981 c.892 §98]
     41.410
[Repealed by 1981 c.892 §98]
     41.415
Photograph of victim in prosecution for criminal homicide. In a prosecution
for any criminal homicide, a photograph of the victim while alive shall be
admissible evidence when offered by the district attorney to show the general
appearance and condition of the victim while alive. [1987 c.2 §8]
     41.420
[Repealed by 1981 c.892 §98]
     41.430
[Repealed by 1981 c.892 §98]
     41.440
[Repealed by 1981 c.892 §98]
     41.450
[Repealed by 1981 c.892 §98]
     41.460
[Repealed by 1981 c.892 §98]
     41.470
[Repealed by 1981 c.892 §98]
     41.480
[Repealed by 1981 c.892 §98]
     41.500
“Secondary evidence” defined for ORS 41.500 to 41.580. As used in ORS
41.500 to 41.580, “secondary evidence” means a copy, or oral evidence, of an
original writing or object. [1981 c.892 §81]
     41.510
Indispensable evidence. Certain evidence is necessary to the validity of
particular acts or the proof of particular facts.
     41.520
Evidence to prove a will. Evidence of a will shall be the written
instrument itself, or secondary evidence of the contents of the will, in the
cases prescribed by law. [Amended by 1969 c.591 §271]
     41.530
Evidence of representations as to third persons. No evidence is admissible
to charge a person upon a representation as to the credit, skill or character
of a third person, unless the representation, or some memorandum thereof, be in
writing, and either subscribed by or in the handwriting of the party to be
charged.
     41.540
[Repealed by 1977 c.479 §1]
     41.550
[Repealed by 1961 c.726 §427]
     41.560
Grant or assignment of trust. Every grant or assignment of any existing
trust in lands, tenements, hereditaments, goods or things in action is void,
unless it is in writing and subscribed by the party making it or by the lawfully
authorized agent of the party.
     41.570
Contracts and communications made by telegraph. Contracts made by telegraph
shall be held to be in writing; and all communications sent by telegraph, and
signed by the sender, or by the authority of the sender, shall be held to be in
writing.
     41.580
Statute of frauds. (1) In the following cases the agreement is void unless
it, or some note or memorandum thereof, expressing the consideration, is in
writing and subscribed by the party to be charged, or by the lawfully
authorized agent of the party; evidence, therefore, of the agreement shall not
be received other than the writing, or secondary evidence of its contents in
the cases prescribed by law:
     (a) An agreement that by its terms is not to be performed within a year from the making.
     (b) An agreement to answer for the debt, default or miscarriage of another.
     (c) An agreement by an executor or administrator to pay the debts of the testator or intestate out of the estate of the executor or administrator.
     (d) An agreement made upon consideration of marriage, other than a mutual promise to marry.
     (e) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of any interest therein.
     (f) An agreement concerning real property made by an agent of the party sought to be charged unless the authority of the agent is in writing.
     (g) An agreement authorizing or employing an agent or broker to sell or purchase real estate for a compensation or commission; but if the note or memorandum of the agreement is in writing and subscribed by the party to be charged, or by the lawfully authorized agent of the party, and contains a description of the property sufficient for identification, and authorizes or employs the agent or broker to sell the property, and expresses with reasonable certainty the amount of the commission or compensation to be paid, the agreement shall not be void for failure to state a consideration.
     (h) An agreement, promise or commitment to lend money, to otherwise extend credit, to forbear with respect to the repayment of any debt payable in money, to modify or amend the terms under which the person has lent money or otherwise extended credit, to release any guarantor or cosigner or to make any other financial accommodation pertaining to an existing debt or other extension of credit. This paragraph does not apply:
     (A) If no party to the agreement, promise or commitment is a financial institution as defined in ORS 706.008, a consumer finance company licensed under ORS chapter 725 or a mortgage banker as defined in ORS 59.840; or
     (B) To a loan of money or extension of credit to a natural person which is primarily for personal, family or household purposes and not for business or agricultural purposes or which is secured solely by residential property consisting of one to four dwelling units, one of which is the primary residence of the debtor.
     (2)(a) Except as provided in this subsection, defenses and exceptions created by provisions of the Oregon Revised Statutes or recognized by the courts of this state do not apply to subsection (1)(h) of this section.
     (b) An agreement, promise or commitment which does not satisfy the requirements of subsection (1)(h) of this section, but which is valid in other respects, is enforceable if the party against whom enforcement is sought admits in the party’s pleading, testimony or otherwise in court that the agreement, promise or commitment was made. The agreement is not enforceable under this paragraph beyond the dollar amount admitted.
     (c) Nothing in subsection (1)(h) of this section precludes a party from seeking to prove the modification of any term relating to the time of repayment.
     (3)(a) If a financial institution as defined in ORS 706.008, a consumer finance company licensed under ORS chapter 725 or a mortgage banker as defined in ORS 59.840 lends money or extends credit, and subsection (1)(h) of this section applies to the loan or extension of credit, the financial institution, consumer finance company or mortgage banker shall, not later than the time the loan or extension of credit is initially made, include within the loan or credit document, or within a separate document which identifies the loan or extension of credit, a statement which is underlined or in at least 10-point bold type and which is substantially to the following effect:
______________________________________________________________________________
    Â
     Under Oregon law, most agreements, promises and commitments made by us concerning loans and other credit extensions which are not for personal, family or household purposes or secured solely by the borrower’s residence must be in writing, express consideration and be signed by us to be enforceable.
______________________________________________________________________________
    Â
     (b) The financial institution, consumer finance company or mortgage banker shall obtain the borrower’s signature on the original document described in paragraph (a) of this subsection and shall give the borrower a copy. [Amended by 1989 c.967 §§1,19; 1993 c.508 §39; 1997 c.631 §373; 2003 c.386 §1]
     41.590
[Repealed by 1961 c.726 §427]
     41.610
[Repealed by 1981 c.892 §98]
     41.615
[1959 c.353 §§1,3 (subsection (2) enacted in lieu of 41.630); 1973 c.231 §1;
repealed by 1977 c.358 §1 (41.616 enacted in lieu of 41.615)]
     41.616
[1977 c.358 §2 (enacted in lieu of 41.615); repealed by 1979 c.284 §199]
     41.617
[1977 c.358 §3; repealed by 1979 c.284 §199]
     41.618
[1977 c.358 §4; repealed by 1979 c.284 §199]
     41.620
[Repealed by 1979 c.284 §199]
     41.622
[1977 c.744 §2; repealed by 1979 c.284 §199]
     41.625
[1959 c.349 §1; repealed by 1977 c.240 §1; (41.626 enacted in lieu of 41.625)]
     41.626
[1977 c.240 §2 (enacted in lieu of 41.625); repealed by 1979 c.284 §199]
     41.630
[Repealed by 1959 c.353 §2 (subsection (2) of 41.615 enacted in lieu of
41.630)]
     41.631
[1977 c.240 §4; repealed by 1979 c.284 §199]
     41.635
[1977 c.240 §3 and 1977 c.358 §5; repealed by 1979 c.284 §199]
     41.640
[Repealed by 1981 c.892 §98]
     41.650
[Repealed by 1981 c.892 §98]
     41.660
Admissibility of objects cognizable by the senses. Whenever an object,
cognizable by the senses, has such a relation to the fact in dispute as to
afford reasonable grounds of belief respecting it, or to make an item in the
sum of the evidence, the object may be exhibited to the jury, or its existence,
situation and character may be proved by witnesses. The exhibition of the
object to the jury shall be regulated by the sound discretion of the court.
     41.670
[Repealed by 1981 c.892 §98]
     41.675
Inadmissibility of certain data provided to peer review body of health care
providers and health care groups. (1) As used in this section, “peer review
body” includes tissue committees, governing bodies or committees including
medical staff committees of a health care facility licensed under ORS chapter
441, medical staff committees of the Department of Corrections and similar
committees of professional societies, a health care service contractor as
defined in ORS 750.005, an emergency medical service provider as defined in ORS
41.685 or any other medical group or provider of medical services in connection
with bona fide medical research, quality assurance, utilization review,
credentialing, education, training, supervision or discipline of physicians or
other health care providers or in connection with the grant, denial,
restriction or termination of clinical privileges at a health care facility.
“Peer review body” also includes utilization review and peer review
organizations.
     (2) As used in subsection (3) of this section, “data” means all oral communications or written reports to a peer review body, and all notes or records created by or at the direction of a peer review body, including the communications, reports, notes or records created in the course of an investigation undertaken at the direction of a peer review body.
     (3) All data shall be privileged and shall not be admissible in evidence in any judicial, administrative, arbitration or mediation proceeding. This section shall not affect the admissibility in evidence of records dealing with a patient’s care and treatment, other than data or information obtained through service on, or as an agent for, a peer review body.
     (4) A person serving on or communicating information to any peer review body or person conducting an investigation described in subsection (1) of this section shall not be examined as to any communication to or from, or the findings of, that peer review body or person.
     (5) A person serving on or communicating information to any peer review body or person conducting an investigation described in subsection (1) of this section shall not be subject to an action for civil damages for affirmative actions taken or statements made in good faith.
     (6) Subsection (3) of this section shall not apply to proceedings in which a health care practitioner contests the denial, restriction or termination of clinical privileges by a health care facility or the denial, restriction or termination of membership in a professional society or any other health care group. However, any data disclosed in those proceedings shall not be admissible in any other judicial, administrative, arbitration or mediation proceeding. [1963 c.181 §1; 1971 c.412 §1; 1975 c.796 §11; 1977 c.448 §9; 1981 c.806 §1; 1991 c.225 §1; 1995 c.485 §1; 1997 c.791 §6; 1997 c.792 §§29,29a]
     41.680
[Repealed by 1981 c.892 §98]
     41.685
Inadmissibility of certain data relating to emergency medical services system.
(1) All data shall be privileged and are not public records as defined in ORS
192.410 and shall not be admissible in evidence in any judicial proceeding
except as provided under ORS 676.175. However, nothing in this section affects
the admissibility in evidence of a partyÂ’s medical records dealing with a
partyÂ’s medical care.
     (2) On request, an emergency medical service provider shall submit data not subject to ORS 676.175 to any committee or governing body of the county, counties or state as provided for by state or county administrative rule.
     (3) A person serving on or communicating information to any governing body or committee shall not be examined as to any communication to that body or committee or the findings thereof.
     (4) A person serving on or communicating information to any governing body or committee shall not be subject to an action for civil damages for affirmative actions taken or statements made in good faith.
     (5) As used in this section:
     (a) “Committee or governing body” means any committee or governing body that has authority to undertake an evaluation of an emergency medical services system as part of a quality assurance program and includes any committee of an emergency medical service provider undertaking a quality assurance program.
     (b) “Data” means all oral communications or written reports, notes or records provided to, or prepared by or for, a committee or governing body that are part of an evaluation of an emergency medical services system and includes any information submitted by any health care provider relating to training, supervision, performance evaluation or professional competency.
     (c) “Emergency medical service provider” means any public, private or volunteer entity providing prehospital functions and services that are required to prepare for and respond to medical emergencies including rescue, ambulance, treatment, communication and evaluation.
     (d) “Emergency medical services system” means those prehospital functions and services that are required to prepare for and respond to medical emergencies, including rescue, ambulance, treatment, communication and evaluation. [1989 c.1079 §1; 1997 c.791 §7; 1997 c.792 §30]
     41.690
[Repealed by 1981 c.892 §98]
     41.700
[Repealed by 1981 c.892 §98]
     41.710
[Repealed by 1981 c.892 §98]
     41.720
[Repealed by 1981 c.892 §98]
     41.730
[Repealed by 1981 c.892 §98]
     41.740
Parol evidence rule. When the terms of an agreement have been reduced to
writing by the parties, it is to be considered as containing all those terms,
and therefore there can be, between the parties and their representatives or
successors in interest, no evidence of the terms of the agreement, other than
the contents of the writing, except where a mistake or imperfection of the
writing is put in issue by the pleadings or where the validity of the agreement
is the fact in dispute. However this section does not exclude other evidence of
the circumstances under which the agreement was made, or to which it relates,
as defined in ORS 42.220, or to explain an ambiguity, intrinsic or extrinsic,
or to establish illegality or fraud. The term “agreement” includes deeds and
wills as well as contracts between parties.
     41.810
[Repealed by 1981 c.892 §98]
     41.815
Evidence of compliance with or attempt to comply with ORCP 32 I; when
admissible. Attempts to comply with the provisions of ORCP 32 I by a person
receiving a demand shall be construed to be an offer to compromise and shall be
inadmissible as evidence. Such attempts to comply with a demand shall not be
considered an admission of engaging in the act or practice alleged to be
unlawful nor of the unlawfulness of that act. Evidence of compliance or
attempts to comply with the provisions of ORCP 32 I may be introduced by a
defendant for the purpose of establishing good faith or to show compliance with
the provisions of ORCP 32 I. [Formerly 13.310; 1981 c.912 §3]
     41.820
[Repealed by 1981 c.892 §98]
     41.830
[Repealed by 1981 c.892 §98]
     41.840
[Repealed by 1981 c.892 §98]
     41.850
[Repealed by 1981 c.892 §98]
     41.860
[Repealed by 1981 c.892 §98]
     41.870
[Repealed by 1981 c.892 §98]
     41.880
[Repealed by 1981 c.892 §98]
     41.890
[Repealed by 1981 c.892 §98]
     41.900
[Repealed by 1981 c.892 §98]
     41.905
Admissibility of certain traffic offense procedures in subsequent civil action.
(1) A judgment of conviction or acquittal of a person charged with a traffic
offense is not admissible in the trial of a subsequent civil action arising out
of the same accident or occurrence to prove or negate the facts upon which such
judgment was rendered.
     (2) A plea of guilty by a person to a traffic offense may be admitted as evidence in the trial of a subsequent civil action arising out of the same accident or occurrence as an admission of the person entering the plea, and for no other purpose.
     (3) Evidence that a person has entered a plea of no contest in the manner described in ORS 153.061 (2)(b) to a charge of a traffic offense shall not be admitted as evidence in the trial of a subsequent civil action arising out of the same accident or occurrence. [1975 c.542 §1; 1981 c.892 §87; 1999 c.1051 §242]
     41.910
Certain intercepted communications inadmissible. Evidence of the contents
of any wire or oral communication intercepted:
     (1) In violation of ORS 165.540 shall not be admissible in any court of this state, except as evidence of unlawful interception.
     (2) Under ORS 165.540 (2)(a) shall not be admissible in any court of this state unless:
     (a) The communication was intercepted by a public official in charge of and at a jail, police premises, sheriff’s office, Department of Corrections institution or other penal or correctional institution; and
     (b) The participant in the communication, against whom the evidence is being offered, had actual notice that the communication was being monitored or recorded. [1955 c.675 §6; 1959 c.681 §5; 1979 c.716 §12; 1983 c.824 §4; 1993 c.178 §1; 2001 c.385 §5]
     41.915
[1973 c.263 §1; repealed by 1979 c.284 §199]
     41.920
[1973 c.263 §2; repealed by 1979 c.284 §199]
     41.925
[1973 c.263 §3; repealed by 1979 c.284 §199]
     41.930
Admissibility of copies of original records. The copy of the records
described in ORCP 55 H or ORS 136.447 is admissible in evidence to the same
extent as though the original thereof were offered and a custodian of hospital
records had been present and testified to the matters stated in the affidavit.
The affidavit is admissible as evidence of the matters stated therein. The
matters stated therein are presumed to be true. The presumption established by
this section is a presumption affecting the burden of producing evidence. [1973
c.263 §4; 1979 c.284 §77; 1995 c.196 §4]
     41.935
[1973 c.263 §5; repealed by 1979 c.284 §199]
     41.940
[1973 c.263 §§6,7; repealed by 1979 c.284 §199]
     41.945
Application of ORS 41.930 and ORCP 55 H. ORS 41.930 and ORCP 55 H apply in
any proceedings in which testimony may be compelled. [1973 c.263 §8; 1979 c.284
§78]
     41.950
[1971 c.331 §1; renumbered 18.500]
     41.960
[1971 c.331 §2; renumbered 18.520]
     41.970 [1971 c.331 §3; renumbered 18.530]
     41.980
[1971 c.331 §4; repealed by 1981 c.892 §98]
_______________
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