Oregon Statutes

Chapter 40 - Evidence Code

• 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 Oregon Evidence Code.
  (1) The Oregon Evidence Code applies to all courts in this state except for: (a) A hearing or mediation before a magistrate of the Oregon...
• 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...
• 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...
• 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...
• 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...
• 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,...
• 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...
• 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...
• 40.075   Rule 201(e). Opportunity to be heard.
  A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of...
• 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...
• 40.090   Rule 202. Law that is judicially noticed.
  Law judicially noticed is defined as: (1) The decisional, constitutional and public statutory law of Oregon, the United States, any federally recognized American Indian tribal...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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 person’s...
• 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...
• 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 United States and Oregon, or by...
• 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...
• 40.170   Rule 404. Character evidence; evidence of other crimes, wrongs or acts.
  (1) Evidence of a person’s character or trait of character is admissible when it is an essential element of a charge, claim or defense. (2)...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 40.210   Rule 412. Sex offense cases; relevance of victim’s 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...
• 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,...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 40.265   Rule 508a. Stenographer-employer privilege.
  A stenographer shall not, without the consent of the stenographer’s employer, be examined as to any communication or dictation made by the employer to the...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 40.475   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...
• 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...
• 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...
• 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...
• 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,...
• 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...
• 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;...
• 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...
• 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...
• 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...
• 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...
• 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 party’s written...
• 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...