2007 Oregon Code - Chapter 40 :: TITLE 4
TITLE 4
EVIDENCE AND
WITNESSES
Chapter 40. Evidence Code
41. Evidence Generally
42. Execution, Formalities and Interpretation
of Writings
43. Public Writings
44. Witnesses
45. Testimony Generally
_______________
Chapter 40 Evidence
Code
2007 EDITION
EVIDENCE CODE
EVIDENCE AND WITNESSES
GENERAL PROVISIONS
40.010 Rule
100. Short title
40.015 Rule
101. Applicability of
40.020 Rule
102. Purpose and construction
40.025 Rule
103. Rulings on evidence
40.030 Rule
104. Preliminary questions
40.035 Rule
105. Limited admissibility
40.040 Rule
106. When part of transaction proved, whole admissible
JUDICIAL NOTICE
40.060 Rule
201(a). Scope
40.065 Rule
201(b). Kinds of facts
40.070 Rules
201(c) and 201(d). When mandatory or discretionary
40.075 Rule
201(e).
40.080 Rule
201(f). Time of taking notice
40.085 Rule
201(g). Instructing the jury
40.090 Rule
202. Law that is judicially noticed
BURDEN OF PERSUASION; BURDEN OF PRODUCING
EVIDENCE; PRESUMPTIONS
40.105 Rule
305. Allocation of the burden of persuasion
40.110 Rule
306. Instructions on the burden of persuasion
40.115 Rule
307. Allocation of the burden of producing evidence
40.120 Rule
308. Presumptions in civil proceedings
40.125 Rule
309. Presumptions in criminal proceedings
40.130 Rule
310. Conflicting presumptions
40.135 Rule
311. Presumptions
RELEVANCY
40.150 Rule
401. Definition of relevant evidence
40.155 Rule
402. Relevant evidence generally admissible
40.160 Rule
403. Exclusion of relevant evidence on grounds of prejudice, confusion or undue
delay
40.170 Rule
404. Character evidence; evidence of other crimes, wrongs or acts
40.172 Rule
404-1. Pattern, practice or history of abuse; expert testimony
40.175 Rule
405. Methods of proving character
40.180 Rule
406. Habit; routine practice
40.185 Rule
407. Subsequent remedial measures
40.190 Rule
408. Compromise and offers to compromise
40.195 Rule
409. Payment of medical and similar expenses
40.200 Rule
410. Withdrawn plea or statement not admissible
40.205 Rule
411. Liability insurance
40.210 Rule
412. Sex offense cases; relevance of victims past behavior or manner of dress
PRIVILEGES
40.225 Rule
503. Lawyer-client privilege
40.230 Rule
504. Psychotherapist-patient privilege
40.235 Rule
504-1. Physician-patient privilege
40.240 Rule
504-2. Nurse-patient privilege
40.245 Rule
504-3. School employee-student privilege
40.250 Rule
504-4. Clinical social worker-client privilege
40.252 Rule
504-5. Communications revealing intent to commit certain crimes
40.255 Rule
505. Husband-wife privilege
40.260 Rule
506. Member of clergy-penitent privilege
40.262 Rule
507. Counselor-client privilege
40.265 Rule
508a. Stenographer-employer privilege
40.270 Rule
509. Public officer privilege
40.272 Rule
509-1. Sign language interpreter privilege
40.273 Rule
509-2. Non-English-speaking person-interpreter privilege
40.275 Rule
510. Identity of informer
40.280 Rule
511. Waiver of privilege by voluntary disclosure
40.285 Rule
512. Privileged matter disclosed under compulsion or without opportunity to
claim privilege
40.290 Rule
513. Comment upon or inference from claim of privilege
40.295 Rule
514. Effect on existing privileges
WITNESSES
40.310 Rule
601. General rule of competency
40.315 Rule
602. Lack of personal knowledge
40.320 Rule
603. Oath or affirmation
40.325 Rule
604. Interpreters
40.330 Rule
605. Competency of judge as witness
40.335 Rule
606. Competency of juror as witness
40.345 Rule
607. Who may impeach
40.350 Rule
608. Evidence of character and conduct of witness
40.355 Rule
609. Impeachment by evidence of conviction of crime; exceptions
40.360 Rule
609-1. Impeachment for bias or interest
40.365 Rule
610. Religious beliefs or opinions
40.370 Rule
611. Mode and order of interrogation and presentation
40.375 Rule
612. Writing used to refresh memory
40.380 Rule
613. Prior statements of witnesses
40.385 Rule
615. Exclusion of witnesses
OPINIONS AND EXPERT TESTIMONY
40.405 Rule
701. Opinion testimony by lay witnesses
40.410 Rule
702. Testimony by experts
40.415 Rule
703. Bases of opinion testimony by experts
40.420 Rule
704. Opinion on ultimate issue
40.425 Rule
705. Disclosure of fact or data underlying expert opinion
40.430 Rule
706. Impeachment of expert witness by learned treatise
HEARSAY
40.450 Rule
801. Definitions for ORS 40.450 to 40.475
40.455 Rule
802. Hearsay rule
40.460 Rule
803. Hearsay exceptions; availability of declarant immaterial
40.465 Rule
804. Hearsay exceptions when the declarant is unavailable
40.470 Rule
805. Hearsay within hearsay
40.475 Rule
806. Attacking and supporting credibility of declarant
AUTHENTICATION AND IDENTIFICATION
40.505 Rule
901. Requirement of authentication or identification
40.510 Rule
902. Self-authentication
40.515 Rule
903. Subscribing witness testimony unnecessary
CONTENTS OF WRITINGS, RECORDINGS AND
PHOTOGRAPHS
40.550 Rule
1001. Definitions for ORS 40.550 to 40.585
40.555 Rule
1002. Requirement of original
40.560 Rule
1003. Admissibility of duplicates
40.562 Rule
1003-1. Admissibility of reproduction
40.565 Rule
1004. Admissibility of other evidence of contents
40.570 Rule
1005. Public records
40.575 Rule
1006. Summaries
40.580 Rule
1007. Testimony or written admission of party
40.585 Rule
1008. Functions of court and jury
GENERAL PROVISIONS
40.010
Rule 100. 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]
40.015
Rule 101. Applicability of
(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 ORS 136.765 to 136.785.
(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. [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; 2005 c.463 §13;
2005 c.843 §25; 2007 c.16 §2]
40.020
Rule 102. Purpose and construction. 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]
40.025
Rule 103. Rulings on evidence.
(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]
40.030
Rule 104. Preliminary questions. (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]
40.035
Rule 105. Limited admissibility. 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]
40.040
Rule 106. When part of transaction proved, whole admissible. 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
NOTICE
40.060
Rule 201(a). Scope. ORS
40.060 to 40.085 govern judicial notice of adjudicative facts. ORS 40.090
governs judicial notice of law. [1981 c.892 §7]
40.065
Rule 201(b). Kinds of facts.
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]
40.070
Rules 201(c) and 201(d). When mandatory or discretionary. (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]
40.075
Rule 201(e).
40.080
Rule 201(f). Time of taking notice. Judicial notice may be taken at any stage of the proceeding. [1981
c.892 §11]
40.085
Rule 201(g). Instructing the jury. (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]
40.090
Rule 202. Law that is judicially noticed. Law judicially noticed is defined as:
(1) The decisional, constitutional and
public statutory law of
(2) Public and private official acts of
the legislative, executive and judicial departments of this state, the
(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
(5) Rules of court of any court of this
state or any court of record of the
(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; 2007 c.63 §1]
BURDEN OF
PERSUASION; BURDEN OF PRODUCING EVIDENCE; PRESUMPTIONS
40.105
Rule 305. Allocation of the burden of persuasion. 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]
40.110
Rule 306. Instructions on the burden of persuasion. 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]
40.115
Rule 307. Allocation of the burden of producing evidence. (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]
40.120
Rule 308. Presumptions in civil proceedings. 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]
40.125
Rule 309. Presumptions in criminal proceedings. (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]
40.130
Rule 310. Conflicting presumptions. 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]
40.135
Rule 311. Presumptions. (1)
The following are presumptions:
(a) A person intends the ordinary
consequences of a voluntary act.
(b) A person takes ordinary care of the
persons 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 persons 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
40.150
Rule 401. Definition of relevant evidence. 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]
40.155
Rule 402. Relevant evidence generally admissible. All relevant evidence is admissible, except
as otherwise provided by the Oregon Evidence Code, by the Constitutions of the
40.160
Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion or
undue delay. 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]
40.170
Rule 404. Character evidence; evidence of other crimes, wrongs or acts. (1) Evidence of a persons character or
trait of character is admissible when it is an essential element of a charge,
claim or defense.
(2) Evidence of a persons 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
(d) The
40.172
Rule 404-1. Pattern, practice or history of abuse; expert testimony. (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.
40.175
Rule 405. Methods of proving character. (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]
40.180
Rule 406. Habit; routine practice. (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 persons regular practice of meeting a particular kind of situation with a
specific, distinctive type of conduct. [1981 c.892 §21]
40.185
Rule 407. Subsequent remedial measures. 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]
40.190
Rule 408. Compromise and offers to compromise. (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]
40.195
Rule 409. Payment of medical and similar expenses. 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]
40.200
Rule 410. Withdrawn plea or statement not admissible. (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 defendants 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]
40.205
Rule 411. Liability insurance.
(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]
40.210
Rule 412. Sex offense cases; relevance of victims past behavior or manner of
dress. (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 victims
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
40.225
Rule 503. Lawyer-client privilege. (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 clients lawyer with
information that was acquired during the course of, or as a result of, such
persons 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 persons
relationship with the client as principal, employee, officer or director,
seeks, receives or applies legal advice from the clients 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 clients
representative and the clients lawyer or a representative of the lawyer;
(b) Between the clients lawyer and the
lawyers representative;
(c) By the client or the clients 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 lawyers
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.
(7) Notwithstanding ORS 40.280, a
privilege is maintained under this section for a communication ordered to be
disclosed under ORS 192.410 to 192.505. [1981 c.892 §32; 1987 c.680 §1; 2005
c.356 §1; 2005 c.358 §1; 2007 c.513 §3]
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.
Note: Section 6, chapter 513, Oregon Laws 2007,
provides:
Sec.
6. Section 2 of this 2007
Act [192.423] and the amendments to ORS 40.225, 192.460 and 192.502 by sections
3 to 5 of this 2007 Act apply to public records created on or after the
effective date of this 2007 Act [June 20, 2007]. [2007 c.513 §6]
40.230
Rule 504. Psychotherapist-patient privilege. (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 patients 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 patients
mental or emotional condition among the patient, the patients psychotherapist
or persons who are participating in the diagnosis or treatment under the
direction of the psychotherapist, including members of the patients 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 psychotherapists
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 patients claim or defense; or
(B) After the patients death, in any
proceeding in which any party relies upon the condition as an element of the
partys 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]
40.235
Rule 504-1. Physician-patient privilege. (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 patients 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 patients physical condition, among the patient,
the patients physician or persons who are participating in the diagnosis or treatment
under the direction of the physician, including members of the patients
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 persons 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]
40.240
Rule 504-2. Nurse-patient privilege. 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]
40.245
Rule 504-3. School employee-student privilege. (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 students 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]
40.250
Rule 504-4. Clinical social worker-client privilege. 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 clients 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]
40.252
Rule 504-5. Communications revealing intent to commit certain crimes. (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 or involving an act
described in ORS 167.322;
(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; 2007 c.731 §4]
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.
40.255
Rule 505. Husband-wife privilege. (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]
40.260
Rule 506. Member of clergy-penitent privilege. (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 members 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
members professional character if, under the discipline or tenets of the
members church, denomination or organization, the member has an absolute duty
to keep the communication confidential. [1981 c.892 §35; 1999 c.7 §1]
40.262
Rule 507. Counselor-client privilege. 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.
40.265
Rule 508a. Stenographer-employer privilege. A stenographer shall not, without the consent of the stenographers
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]
40.270
Rule 509. Public officer privilege. 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]
40.272
Rule 509-1. Sign language interpreter privilege. (1) As used in this section:
(a) Person with a disability means a
person who cannot readily understand or communicate the spoken English
language, or cannot understand proceedings in which the person is involved,
because of deafness or because of a physical hearing impairment or cannot
communicate in the proceedings because of a physical speaking impairment.
(b) Sign language interpreter or interpreter
means a person who translates conversations or other communications for a
person with a disability or translates the statements of a person with a
disability.
(2) A person with a disability has a
privilege to refuse to disclose and to prevent a sign language interpreter from
disclosing any communications to which the person with a disability was a party
that were made while the interpreter was providing interpretation services for
the person with a disability. The privilege created by this section extends
only to those communications between a person with a disability and another,
and translated by the interpreter, that would otherwise be privileged under ORS
40.225 to 40.295. [1993 c.179 §2; 2007 c.70 §11]
Note: 40.272 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.
40.273
Rule 509-2. Non-English-speaking person-interpreter privilege. (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.
40.275
Rule 510. Identity of informer.
(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
informers 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 informers 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 judges 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]
40.280
Rule 511. Waiver of privilege by voluntary disclosure. 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 persons 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
holders offering of any person as a witness who testifies as to the condition.
[1981 c.892 §39; 2003 c.259 §1]
40.285
Rule 512. 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]
40.290
Rule 513. Comment upon or inference from claim of privilege. (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]
40.295
Rule 514. Effect on existing privileges. 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
WITNESSES
40.310
Rule 601. General rule of competency. 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 a witness. [1981 c.892 §43]
40.315
Rule 602. Lack of personal knowledge. 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]
40.320
Rule 603. Oath or affirmation.
(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]
40.325
Rule 604. Interpreters.
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 interpreters 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]
40.330
Rule 605. Competency of judge as witness. 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]
40.335
Rule 606. Competency of juror as witness. 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]
40.340 [1981 c.892 §50; repealed by 1987 c.352 §1]
40.345
Rule 607. Who may impeach.
The credibility of a witness may be attacked by any party, including the party
calling the witness. [1981 c.892 §51]
40.350
Rule 608. Evidence of character and conduct of witness. (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]
40.355
Rule 609. Impeachment by evidence of conviction of crime; exceptions. (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 courts 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.
40.360
Rule 609-1. Impeachment for bias or interest. (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]
40.365
Rule 610. Religious beliefs or opinions. 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]
40.370
Rule 611. Mode and order of interrogation and presentation. (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]
40.375
Rule 612. Writing used to refresh memory. 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]
40.380
Rule 613. Prior statements of witnesses. (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]
40.385
Rule 615. Exclusion of witnesses. 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 partys 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
40.405
Rule 701. Opinion testimony by lay witnesses. 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]
40.410
Rule 702. Testimony by experts.
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]
40.415
Rule 703. 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]
40.420
Rule 704. 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]
40.425
Rule 705. 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]
40.430
Rule 706. Impeachment of expert witness by learned treatise. Upon cross-examination, an expert witness
may be questioned concerning statements contained in a published treatise,
periodical or pamphlet on a subject of history, medicine or other science or
art if the treatise, periodical or pamphlet is established as a reliable
authority. A treatise, periodical or pamphlet may be established as a reliable
authority by the testimony or admission of the witness, by other expert
testimony or by judicial notice. Statements contained in a treatise, periodical
or pamphlet established as a reliable authority may be used for purposes of
impeachment but may not be introduced as substantive evidence. [1999 c.85 §2]
HEARSAY
40.450
Rule 801. Definitions for ORS 40.450 to 40.475. 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 partys own statement, in either
an individual or a representative capacity;
(B) A statement of which the party has
manifested the partys 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 partys 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]
40.455
Rule 802. Hearsay rule.
Hearsay is not admissible except as provided in ORS 40.450 to 40.475 or as
otherwise provided by law. [1981 c.892 §63]
40.460
Rule 803. 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 declarants 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 declarants 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 or 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, including federally
recognized American Indian tribal governments, 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, 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, including a federally recognized American Indian
tribal government, 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,
including a federally recognized American Indian tribal government, 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, a public official, an
official of a federally recognized American Indian tribal government or any
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, including a federally recognized American Indian tribal government, 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 perpetrators 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 proponents
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 a developmental
disability;
(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 declarants 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 declarants
age or to the extent of the declarants disability if the declarant is a person
with a developmental disability;
(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 a developmental disability. For the purposes of this
subsection, developmental disability 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 persons
family by blood, adoption or marriage, or among a persons associates, or in
the community, concerning a persons birth, adoption, marriage, divorce, death,
legitimacy, relationship by blood or adoption or marriage, ancestry, or other
similar fact of a persons 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 persons 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 a developmental
disability 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 a developmental
disability by another, the testimony of the child or person with a
developmental disability 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 a developmental disability 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 a developmental disability or the court in a civil proceeding, or
on motion of the district attorney, the child or the person with a
developmental disability in a criminal or juvenile proceeding, may order that
the testimony of the child or the person with a developmental disability 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 a developmental disability may be present during the
testimony of the child or person with a developmental disability.
(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; 2007 c.63 §2; 2007 c.70 §12]
Note: The amendments to 40.460 by section 3,
chapter 636,
40.460. 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 declarants 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 declarants 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 or 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, including federally
recognized American Indian tribal governments, 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, 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, including a federally recognized American Indian tribal
government, 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, including a federally recognized American Indian tribal government,
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, a public official, an
official of a federally recognized American Indian tribal government or any
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, including a federally recognized American Indian tribal government, 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 perpetrators 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 proponents
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 a developmental
disability;
(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 declarants 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 declarants
age or to the extent of the declarants disability if the declarant is a person
with a developmental disability;
(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 a developmental disability. For the purposes of this
subsection, developmental disability 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 persons
family by blood, adoption or marriage, or among a persons associates, or in
the community, concerning a persons birth, adoption, marriage, divorce, death,
legitimacy, relationship by blood or adoption or marriage, ancestry, or other
similar fact of a persons 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 persons 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 a developmental
disability 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 a developmental
disability by another, the testimony of the child or person with a
developmental disability 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 a developmental disability 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 a developmental disability or the court in a civil proceeding, or
on motion of the district attorney, the child or the person with a
developmental disability in a criminal or juvenile proceeding, may order that the
testimony of the child or the person with a developmental disability 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 a developmental disability may be present during the testimony of
the child or person with a developmental disability.
(25)(a) Any document containing data
prepared or recorded by the Oregon State Police pursuant to ORS 813.160
(1)(b)(C) or (E) 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 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
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.
40.465
Rule 804. Hearsay exceptions when the declarant is unavailable. (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 declarants statement has been unable to procure the declarants
attendance (or in the case of an exception under subsection (3)(b), (c) or (d)
of this section, the declarants attendance or testimony) by process or other
reasonable means.
(2) A declarant is not unavailable as a
witness if the declarants exemption, refusal, claim of lack of memory,
inability, or absence is due to the procurement or wrongdoing of the proponent
of the declarants 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 declarants 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 declarants 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
declarants 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
others 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 persons 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]
40.470
Rule 805. Hearsay within hearsay. 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]
40.475
Rule 806. Attacking and supporting credibility of declarant. When a hearsay statement, or a statement
defined in ORS 40.450 (4)(b)(C), (D) or (E), has been admitted in evidence, the
credibility of the declarant may be attacked, and if attacked may be supported,
by any evidence which would be admissible for those purposes if the declarant
had testified as a witness. Evidence of a statement or conduct by the declarant
at any time, inconsistent with the hearsay statement of the declarant, is not
subject to any requirement under ORS 40.380 relating to impeachment by evidence
of inconsistent statements. If the party against whom a hearsay statement has
been admitted calls the declarant as a witness, the party is entitled to
examine the declarant on the statement as if under cross-examination. [1981
c.892 §67]
AUTHENTICATION
AND IDENTIFICATION
40.505
Rule 901. Requirement of authentication or identification. (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]
40.510
Rule 902. Self-authentication.
(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
(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]
Note: The amendments to 40.510 by section 4,
chapter 636,
40.510. (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
(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) 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.
40.515
Rule 903. Subscribing witness testimony unnecessary. 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 PHOTOGRAPHS
40.550
Rule 1001. Definitions 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]
40.555
Rule 1002. Requirement of original. 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]
40.560
Rule 1003. 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]
40.562
Rule 1003-1. Admissibility of reproduction. (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]
40.565
Rule 1004. Admissibility of other evidence of contents. 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]
40.570
Rule 1005. Public records.
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]
40.575
Rule 1006. 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]
40.580
Rule 1007. 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 partys written admission, without accounting for the
nonproduction of the original. [1981 c.892 §77]
40.585
Rule 1008. Functions of court and jury. 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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