Chapter 41 — Evidence
Generally
2011 EDITION
EVIDENCE GENERALLY
EVIDENCE AND WITNESSES
41.010 Judicial
evidence; proof
41.110 Satisfactory
evidence
41.270 Proof
of usage
41.415 Photograph
of victim in prosecution for criminal homicide
41.500 “Secondary
evidence” defined for ORS 41.500 to 41.580
41.510 Indispensable
evidence
41.520 Evidence
to prove a will
41.530 Evidence
of representations as to third persons
41.560 Grant
or assignment of trust
41.570 Contracts
and communications made by telegraph
41.580 Statute
of frauds
41.660 Admissibility
of objects cognizable by the senses
41.675 Inadmissibility
of certain data provided to peer review body of health care providers and
health care groups
41.685 Inadmissibility
of certain data relating to emergency medical services system
41.740 Parol evidence rule
41.815 Evidence
of compliance with or attempt to comply with ORCP 32 I; when admissible
41.905 Admissibility
of certain traffic offense procedures in subsequent civil action
41.910 Certain
intercepted communications inadmissible
41.930 Admissibility
of copies of original records
41.945 Application
of ORS 41.930 and ORCP 55 H
41.010 Judicial evidence; proof.
Judicial evidence is the means, sanctioned by law, of ascertaining in a
judicial proceeding the truth respecting a question of fact. Proof is the
effect of evidence, the establishment of the fact by evidence.
41.020
[Repealed by 1981 c.892 §98]
41.030
[Repealed by 1981 c.892 §98]
41.040
[Repealed by 1981 c.892 §98]
41.050 [Repealed
by 1981 c.892 §98]
41.060
[Repealed by 1981 c.892 §98]
41.070
[Repealed by 1981 c.892 §98]
41.080
[Repealed by 1981 c.892 §98]
41.090
[Repealed by 1981 c.892 §98]
41.100
[Repealed by 1981 c.892 §98]
41.110 Satisfactory evidence.
Satisfactory evidence is that which ordinarily produces moral certainty or
conviction in an unprejudiced mind. It alone will justify a verdict. Evidence
less than this is insufficient evidence.
41.120
[Repealed by 1981 c.892 §98]
41.130
[Repealed by 1981 c.892 §98]
41.140
[Repealed by 1981 c.892 §98]
41.150
[Repealed by 1981 c.892 §98]
41.210
[Repealed by 1981 c.892 §98]
41.220
[Repealed by 1981 c.892 §98]
41.230
[Repealed by 1981 c.892 §98]
41.240
[Repealed by 1981 c.892 §98]
41.250
[Repealed by 1981 c.892 §98]
41.260
[Repealed by 1981 c.892 §98]
41.270 Proof of usage.
(1) Usage shall be proved by the testimony of at least two witnesses.
(2)
Evidence may be given of usage to explain the true character of an act,
contract or instrument when such true character is not otherwise plain, but
usage is never admissible except as a means of interpretation. [Amended by 1981
c.892 §86]
41.280
[Repealed by 1981 c.892 §98]
41.310
[Repealed by 1981 c.892 §98]
41.315 [1987
c.774 §§1,2; repealed by 1995 c.688 §6]
41.320
[Repealed by 1981 c.892 §98]
41.330
[Repealed by 1981 c.892 §98]
41.340
[Repealed by 1981 c.892 §98]
41.350
[Amended by 1971 c.127 §1; repealed by 1981 c.892 §98]
41.360
[Amended by 1957 c.679 §1; 1961 c.726 §399; repealed by 1981 c.892 §98]
41.410
[Repealed by 1981 c.892 §98]
41.415 Photograph of victim in prosecution
for criminal homicide. In a prosecution for any
criminal homicide, a photograph of the victim while alive shall be admissible
evidence when offered by the district attorney to show the general appearance
and condition of the victim while alive. [1987 c.2 §8]
41.420
[Repealed by 1981 c.892 §98]
41.430
[Repealed by 1981 c.892 §98]
41.440
[Repealed by 1981 c.892 §98]
41.450
[Repealed by 1981 c.892 §98]
41.460
[Repealed by 1981 c.892 §98]
41.470
[Repealed by 1981 c.892 §98]
41.480
[Repealed by 1981 c.892 §98]
41.500 “Secondary evidence” defined for
ORS 41.500 to 41.580. As used in ORS 41.500 to 41.580,
“secondary evidence” means a copy, or oral evidence, of an original writing or
object. [1981 c.892 §81]
41.510 Indispensable evidence.
Certain evidence is necessary to the validity of particular acts or the proof
of particular facts.
41.520 Evidence to prove a will.
Evidence of a will shall be the written instrument itself, or secondary
evidence of the contents of the will, in the cases prescribed by law. [Amended
by 1969 c.591 §271]
41.530 Evidence of representations as to
third persons. No evidence is admissible to charge a
person upon a representation as to the credit, skill or character of a third
person, unless the representation, or some memorandum thereof, be in writing,
and either subscribed by or in the handwriting of the party to be charged.
41.540
[Repealed by 1977 c.479 §1]
41.550 [Repealed
by 1961 c.726 §427]
41.560 Grant or assignment of trust.
Every grant or assignment of any existing trust in lands, tenements, hereditaments, goods or things in action is void, unless it
is in writing and subscribed by the party making it or by the lawfully
authorized agent of the party.
41.570 Contracts and communications made
by telegraph. Contracts made by telegraph shall be
held to be in writing; and all communications sent by telegraph, and signed by
the sender, or by the authority of the sender, shall be held to be in writing.
41.580 Statute of frauds.
(1) In the following cases the agreement is void unless it, or some note or
memorandum thereof, expressing the consideration, is in writing and subscribed
by the party to be charged, or by the lawfully authorized agent of the party;
evidence, therefore, of the agreement shall not be received other than the
writing, or secondary evidence of its contents in the cases prescribed by law:
(a)
An agreement that by its terms is not to be performed within a year from the
making.
(b)
An agreement to answer for the debt, default or miscarriage of another.
(c)
An agreement by an executor or administrator to pay the debts of the testator
or intestate out of the estate of the executor or administrator.
(d)
An agreement made upon consideration of marriage, other than a mutual promise
to marry.
(e)
An agreement for the leasing for a longer period than one year, or for the sale
of real property, or of any interest therein.
(f)
An agreement concerning real property made by an agent of the party sought to
be charged unless the authority of the agent is in writing.
(g)
An agreement authorizing or employing an agent or broker to sell or purchase
real estate for a compensation or commission; but if the note or memorandum of
the agreement is in writing and subscribed by the party to be charged, or by
the lawfully authorized agent of the party, and contains a description of the
property sufficient for identification, and authorizes or employs the agent or
broker to sell the property, and expresses with reasonable certainty the amount
of the commission or compensation to be paid, the agreement shall not be void
for failure to state a consideration.
(h)
An agreement, promise or commitment to lend money, to otherwise extend credit,
to forbear with respect to the repayment of any debt payable in money, to
modify or amend the terms under which the person has lent money or otherwise
extended credit, to release any guarantor or cosigner or to make any other
financial accommodation pertaining to an existing debt or other extension of
credit. This paragraph does not apply:
(A)
If no party to the agreement, promise or commitment is a financial institution
as defined in ORS 706.008, a consumer finance company licensed under ORS
chapter 725 or a mortgage banker as defined in ORS 86A.100; or
(B)
To a loan of money or extension of credit to a natural person which is
primarily for personal, family or household purposes and not for business or
agricultural purposes or which is secured solely by residential property
consisting of one to four dwelling units, one of which is the primary residence
of the debtor.
(2)(a)
Except as provided in this subsection, defenses and exceptions created by
provisions of the Oregon Revised Statutes or recognized by the courts of this
state do not apply to subsection (1)(h) of this section.
(b)
An agreement, promise or commitment which does not satisfy the requirements of
subsection (1)(h) of this section, but which is valid in other respects, is
enforceable if the party against whom enforcement is sought admits in the party’s
pleading, testimony or otherwise in court that the agreement, promise or
commitment was made. The agreement is not enforceable under this paragraph
beyond the dollar amount admitted.
(c)
Nothing in subsection (1)(h) of this section precludes a party from seeking to
prove the modification of any term relating to the time of repayment.
(3)(a)
If a financial institution as defined in ORS 706.008, a consumer finance
company licensed under ORS chapter 725 or a mortgage banker as defined in ORS
86A.100 lends money or extends credit, and subsection (1)(h) of this section
applies to the loan or extension of credit, the financial institution, consumer
finance company or mortgage banker shall, not later than the time the loan or
extension of credit is initially made, include within the loan or credit
document, or within a separate document which identifies the loan or extension
of credit, a statement which is underlined or in at least 10-point bold type
and which is substantially to the following effect:
______________________________________________________________________________
Under
Oregon law, most agreements, promises and commitments made by us concerning
loans and other credit extensions which are not for personal, family or
household purposes or secured solely by the borrower’s residence must be in
writing, express consideration and be signed by us to be enforceable.
______________________________________________________________________________
(b)
The financial institution, consumer finance company or mortgage banker shall
obtain the borrower’s signature on the original document described in paragraph
(a) of this subsection and shall give the borrower a copy. [Amended by 1989
c.967 §§1,19; 1993 c.508 §39; 1997 c.631 §373; 2003 c.386 §1]
41.590
[Repealed by 1961 c.726 §427]
41.610
[Repealed by 1981 c.892 §98]
41.615 [1959
c.353 §§1,3 (subsection (2) enacted in lieu of 41.630); 1973 c.231 §1; repealed
by 1977 c.358 §1 (41.616 enacted in lieu of 41.615)]
41.616 [1977
c.358 §2 (enacted in lieu of 41.615); repealed by 1979 c.284 §199]
41.617 [1977
c.358 §3; repealed by 1979 c.284 §199]
41.618 [1977
c.358 §4; repealed by 1979 c.284 §199]
41.620
[Repealed by 1979 c.284 §199]
41.622 [1977
c.744 §2; repealed by 1979 c.284 §199]
41.625 [1959
c.349 §1; repealed by 1977 c.240 §1; (41.626 enacted in lieu of 41.625)]
41.626 [1977
c.240 §2 (enacted in lieu of 41.625); repealed by 1979 c.284 §199]
41.630
[Repealed by 1959 c.353 §2 (subsection (2) of 41.615 enacted in lieu of
41.630)]
41.631 [1977
c.240 §4; repealed by 1979 c.284 §199]
41.635 [1977
c.240 §3 and 1977 c.358 §5; repealed by 1979 c.284 §199]
41.640
[Repealed by 1981 c.892 §98]
41.650
[Repealed by 1981 c.892 §98]
41.660 Admissibility of objects cognizable
by the senses. Whenever an object, cognizable by the
senses, has such a relation to the fact in dispute as to afford reasonable
grounds of belief respecting it, or to make an item in the sum of the evidence,
the object may be exhibited to the jury, or its existence, situation and
character may be proved by witnesses. The exhibition of the object to the jury
shall be regulated by the sound discretion of the court.
41.670
[Repealed by 1981 c.892 §98]
41.675 Inadmissibility of certain data
provided to peer review body of health care providers and health care groups.
(1) As used in this section, “peer review body” includes tissue committees,
governing bodies or committees including medical staff committees of a health
care facility licensed under ORS chapter 441, medical staff committees of the
Department of Corrections and similar committees of professional societies, a
health care service contractor as defined in ORS 750.005, an emergency medical
service provider as defined in ORS 41.685 or any other medical group or
provider of medical services in connection with bona fide medical research,
quality assurance, utilization review, credentialing, education, training,
supervision or discipline of physicians or other health care providers or in
connection with the grant, denial, restriction or termination of clinical
privileges at a health care facility. “Peer review body” also includes
utilization review and peer review organizations.
(2)
As used in subsection (3) of this section, “data” means all oral communications
or written reports to a peer review body, and all notes or records created by
or at the direction of a peer review body, including the communications,
reports, notes or records created in the course of an investigation undertaken
at the direction of a peer review body.
(3)
All data shall be privileged and shall not be admissible in evidence in any
judicial, administrative, arbitration or mediation proceeding. This section
shall not affect the admissibility in evidence of records dealing with a
patient’s care and treatment, other than data or information obtained through
service on, or as an agent for, a peer review body.
(4)
A person serving on or communicating information to any peer review body or person
conducting an investigation described in subsection (1) of this section shall
not be examined as to any communication to or from, or the findings of, that
peer review body or person.
(5)
A person serving on or communicating information to any peer review body or
person conducting an investigation described in subsection (1) of this section
shall not be subject to an action for civil damages for affirmative actions
taken or statements made in good faith.
(6)
Subsection (3) of this section shall not apply to proceedings in which a health
care practitioner contests the denial, restriction or termination of clinical
privileges by a health care facility or the denial, restriction or termination
of membership in a professional society or any other health care group.
However, any data disclosed in those proceedings shall not be admissible in any
other judicial, administrative, arbitration or mediation proceeding. [1963
c.181 §1; 1971 c.412 §1; 1975 c.796 §11; 1977 c.448 §9; 1981 c.806 §1; 1991
c.225 §1; 1995 c.485 §1; 1997 c.791 §6; 1997 c.792 §§29,29a]
41.680
[Repealed by 1981 c.892 §98]
41.685 Inadmissibility of certain data
relating to emergency medical services system.
(1) All data shall be privileged and are not public records as defined in ORS
192.410 and shall not be admissible in evidence in any judicial proceeding
except as provided under ORS 676.175. However, nothing in this section affects
the admissibility in evidence of a party’s medical records dealing with a party’s
medical care.
(2)
On request, an emergency medical service provider shall submit data not subject
to ORS 676.175 to any committee or governing body of the county, counties or
state as provided for by state or county administrative rule.
(3)
A person serving on or communicating information to any governing body or
committee shall not be examined as to any communication to that body or
committee or the findings thereof.
(4)
A person serving on or communicating information to any governing body or
committee shall not be subject to an action for civil damages for affirmative
actions taken or statements made in good faith.
(5)
As used in this section:
(a)
“Committee or governing body” means any committee or governing body that has
authority to undertake an evaluation of an emergency medical services system as
part of a quality assurance program and includes any committee of an emergency
medical service provider undertaking a quality assurance program.
(b)
“Data” means all oral communications or written reports, notes or records provided
to, or prepared by or for, a committee or governing body that are part of an
evaluation of an emergency medical services system and includes any information
submitted by any health care provider relating to training, supervision,
performance evaluation or professional competency.
(c)
“Emergency medical service provider” means any public, private or volunteer
entity providing prehospital functions and services
that are required to prepare for and respond to medical emergencies including
rescue, ambulance, treatment, communication and evaluation.
(d)
“Emergency medical services system” means those prehospital
functions and services that are required to prepare for and respond to medical
emergencies, including rescue, ambulance, treatment, communication and
evaluation. [1989 c.1079 §1; 1997 c.791 §7; 1997 c.792 §30]
41.690
[Repealed by 1981 c.892 §98]
41.700
[Repealed by 1981 c.892 §98]
41.710
[Repealed by 1981 c.892 §98]
41.720
[Repealed by 1981 c.892 §98]
41.730
[Repealed by 1981 c.892 §98]
41.740 Parol
evidence rule. When the terms of an agreement have
been reduced to writing by the parties, it is to be considered as containing
all those terms, and therefore there can be, between the parties and their
representatives or successors in interest, no evidence of the terms of the
agreement, other than the contents of the writing, except where a mistake or
imperfection of the writing is put in issue by the pleadings or where the
validity of the agreement is the fact in dispute. However this section does not
exclude other evidence of the circumstances under which the agreement was made,
or to which it relates, as defined in ORS 42.220, or to explain an ambiguity,
intrinsic or extrinsic, or to establish illegality or fraud. The term “agreement”
includes deeds and wills as well as contracts between parties.
41.810
[Repealed by 1981 c.892 §98]
41.815 Evidence of compliance with or
attempt to comply with ORCP 32 I; when admissible.
Attempts to comply with the provisions of ORCP 32 I by a person receiving a
demand shall be construed to be an offer to compromise and shall be
inadmissible as evidence. Such attempts to comply with a demand shall not be
considered an admission of engaging in the act or practice alleged to be
unlawful nor of the unlawfulness of that act. Evidence of compliance or
attempts to comply with the provisions of ORCP 32 I may be introduced by a
defendant for the purpose of establishing good faith or to show compliance with
the provisions of ORCP 32 I. [Formerly 13.310; 1981 c.912 §3]
41.820
[Repealed by 1981 c.892 §98]
41.830
[Repealed by 1981 c.892 §98]
41.840
[Repealed by 1981 c.892 §98]
41.850
[Repealed by 1981 c.892 §98]
41.860
[Repealed by 1981 c.892 §98]
41.870
[Repealed by 1981 c.892 §98]
41.880
[Repealed by 1981 c.892 §98]
41.890
[Repealed by 1981 c.892 §98]
41.900
[Repealed by 1981 c.892 §98]
41.905 Admissibility of certain traffic
offense procedures in subsequent civil action.
A plea to a charge of a traffic crime, as defined in ORS 801.545, and any
judgment of conviction or acquittal of a person charged with a traffic crime,
as defined by ORS 801.545, are not admissible in the trial of a subsequent
civil action arising out of the same accident or occurrence to prove or negate
the facts upon which such judgment was rendered. [1975 c.542 §1; 1981 c.892 §87;
1999 c.1051 §242; 2007 c.784 §6; 2011 c.597 §30]
Note:
Section 31, chapter 597, Oregon Laws 2011, provides:
Sec. 31. The
amendments to ORS 41.905 and 153.108 by sections 29 and 30 of this 2011 Act
apply only to offenses committed on or after January 1, 2012. Any offense
committed before January 1, 2012, shall continue to be governed by ORS 41.905
and 153.108 as in effect immediately before January 1, 2012. [2011 c.597 §31]
41.910 Certain intercepted communications
inadmissible. Evidence of the contents of any wire or
oral communication intercepted:
(1)
In violation of ORS 165.540 shall not be admissible in any court of this state,
except as evidence of unlawful interception.
(2)
Under ORS 165.540 (2)(a) shall not be admissible in any court of this state
unless:
(a)
The communication was intercepted by a public official in charge of and at a
jail, police premises, sheriff’s office, Department of Corrections institution
or other penal or correctional institution; and
(b)
The participant in the communication, against whom the evidence is being
offered, had actual notice that the communication was being monitored or
recorded. [1955 c.675 §6; 1959 c.681 §5; 1979 c.716 §12; 1983 c.824 §4; 1993
c.178 §1; 2001 c.385 §5]
41.915 [1973
c.263 §1; repealed by 1979 c.284 §199]
41.920 [1973
c.263 §2; repealed by 1979 c.284 §199]
41.925 [1973
c.263 §3; repealed by 1979 c.284 §199]
41.930 Admissibility of copies of original
records. The copy of the records described in
ORCP 55 H or ORS 136.447 is admissible in evidence to the same extent as though
the original thereof were offered and a custodian of hospital records had been
present and testified to the matters stated in the affidavit. The affidavit is
admissible as evidence of the matters stated therein. The matters stated
therein are presumed to be true. The presumption established by this section is
a presumption affecting the burden of producing evidence. [1973 c.263 §4; 1979
c.284 §77; 1995 c.196 §4]
41.935 [1973
c.263 §5; repealed by 1979 c.284 §199]
41.940 [1973
c.263 §§6,7; repealed by 1979 c.284 §199]
41.945 Application of ORS 41.930 and ORCP
55 H. ORS 41.930 and ORCP 55 H apply in any
proceedings in which testimony may be compelled. [1973 c.263 §8; 1979 c.284 §78]
41.950 [1971
c.331 §1; renumbered 18.500]
41.960 [1971
c.331 §2; renumbered 18.520]
41.970 [1971 c.331 §3; renumbered
18.530]
41.980 [1971
c.331 §4; repealed by 1981 c.892 §98]
_______________