Chapter 40
EVIDENCE
CODE
Annotations are listed under the heading “Under
former similar statute” if they predate the adoption of the Evidence Code,
which went into effect January 1, 1982.
Chapter 40
(Generally)
NOTES OF
DECISIONS
General rule is that polygraph evidence is
inadmissible in proceeding governed by Oregon Evidence Code. State v. Brown,
297 Or 404, 687 P2d 751 (1984)
Party could introduce results of polygraph
test taken by spouse for purpose of showing that response of party upon learning
polygraph results was reasonable. Fromdahl and Fromdahl, 314 Or 496, 840 P2d
683 (1992)
LAW REVIEW
CITATIONS: 59 OLR 43 (1980); 19 WLR 343 (1983)
40.015
(Rule 101)
NOTES OF
DECISIONS
Hearsay rules of OEC do not apply to
pretrial hearing on motion to suppress evidence in criminal case. State v.
Wright, 315 Or 124, 843 P2d 436 (1992)
Applicability of Oregon Evidence Code “as
required by ORS 137.090” in proceedings to revoke probation does not make
evidence code applicable in adjudicatory phase of revocation proceedings. State
v.
LAW REVIEW
CITATIONS: 62 OLR 514 (1983)
40.025
(Rule 103)
NOTES OF
DECISIONS
Offer of proof of what would happen in
trial was sufficient to permit trial court to rule intelligently on propriety
of offered evidence; there was no need for further procedure to preserve
assignment of error. State v. Foster, 296 Or 174, 674 P2d 587 (1983)
Treatise was improperly admitted as
substantive evidence in medical malpractice case but admission did not
prejudice substantial right of defendant because testimony was cumulative of
other testimony. Travis v. Unruh, 66 Or App 562, 674 P2d 1192 (1984),
Evidential error is not presumed prejudicial, and party alleging error must show error
affected substantial rights. John Henry Company v. MacDonald, 92 Or App 659,
759 P2d 1126 (1988),
Error is harmless only if it is unlikely
that it affected verdict and court can say on record verdict would have been
same without error. State v. Dillard, 100 Or App 645,
787 P2d 1307 (1990)
Even assuming that testimony in question
was inadmissible hearsay, where result of trial would not have been different
if trial court had excluded it, no substantial right of plaintiff was affected
by admitting testimony and any error does not require reversal. Hager v.
American Honda Motor Co., Inc., 101 Or App 640, 792
P2d 459 (1990)
Defendant was not required to make offer
of proof to preserve error where offer would give additional information on
legal question before court, parties had fully argued merits of issue, offer
would not have altered court’s analysis and where evidence sought to be
admitted was declared inadmissible as matter of law. State v. Olmstead, 310 Or
455, 800 P2d 277 (1990)
Substantial right of criminal defendant is
not affected if there is substantial and convincing evidence of guilt and
little likelihood that error affected result. State v. Abercrombie, 108 Or App 447, 816 P2d 656 (1991)
Appellant need not always establish that
evidentiary error would produce different result since test is whether
erroneously admitted evidence has some likelihood of affecting result. Hass v.
Where pretrial ruling is made on
evidentiary issue, failure to pursue discretionary relitigation of issue at
trial does not render claim of error on pretrial ruling unpreserved. State v.
Cole, 323 Or 30, 912 P2d 907 (1996)
Where record was adequately developed at
trial to support affirmance under alternative theory, erroneous concession at
trial that alternative theory was inapplicable does not prevent affirmance.
State ex rel Juvenile Dept. v. Pfaff, 164 Or App 470, 994 P2d 147 (1999),
40.030
(Rule 104)
NOTES OF
DECISIONS
Where no witness testified about seeing
defendant wearing jacket in co-defendant’s vehicle when victim was killed and
facts were made known to expert witness through prosecutor’s hypothetical
question, evidence was sufficient to support finding to that effect. State v.
Nefstad, 309 Or 523, 789 P2d 1326 (1990)
Where defendant was convicted of child
sexual abuse, admission of foster mother’s testimony that child had cried out
in her sleep, “Daddy, get off me. Daddy, stop, leave me alone,” constituted
reversible error, because state failed, pursuant to this provision, to
establish nexus between child’s utterance and alleged incidents. State v.
Presley, 108 Or App 149, 814 P2d 550 (1991)
Judge should use preponderance standard of
proof in deciding preliminary questions of fact under this section. State v.
Carlson, 311 Or 201, 808 P2d 1002 (1991); State v. Kim, 111 Or App 1, 824 P2d
1161 (1992),
When party seeks to introduce hearsay
statement by another person, determination as to whether party against whom
statement is offered intended to adopt, agree with or approve of contents of
statement of another is preliminary question of fact for trial judge under this
section. State v. Carlson, 311 Or 201, 808 P2d 1002 (1991)
LAW REVIEW
CITATIONS: 29 WLR 927 (1993)
40.035
(Rule 105)
LAW REVIEW
CITATIONS: 68 OLR 239 (1989)
40.040
(Rule 106)
See also annotations under ORS
41.880 in permanent edition.
COMPLETED
CITATIONS (for ORS 41.880 in permanent edition): State v. Williams, 6 Or App
189, 487 P2d 100 (1971),
40.060 to 40.085
(Rule 201)
NOTES OF
DECISIONS
That traveling by car to and from a tavern
is commonplace and car accidents resulting from drinking are frequent are not
indisputable facts that qualify for judicial notice under OEC 201. Chartrand v.
Where court takes judicial notice of facts
in determining what law is or should be, code
limitations on judicial notice of facts do not apply. State v. O’Key, 321 Or
285, 899 P2d 663 (1995)
40.065
(Rule
201(b))
See also annotations under ORS
41.410 in permanent edition.
NOTES OF
DECISIONS
Private documents that party to proceeding
submits into prehearing court or administrative record are not source “whose
accuracy cannot reasonably be questioned.” Arlington Education Association v.
Arlington School District No. 3, 177 Or App 658, 34 P3d 1197 (2001),
COMPLETED
CITATIONS (for ORS 41.410 in permanent edition): Beistel v. Pub. Employes
Relations Bd., 6 Or App 115, 486 P2d 1305 (1971)
40.090
(Rule 202)
See also annotations under ORS
41.410, 41.420, 41.430, 41.440, 41.450, 41.460 and 41.470 in permanent edition.
NOTES OF
DECISIONS
Governmental safety regulations adopted
under Oregon Safe Employment Act, unlike safety standards or usages of private
trades or nongovernmental entities, are law to be judicially noticed. Shahtout
v. Emco Garbage Co., 298 Or 598, 695 P2d 897 (1985)
Court could not take judicial notice of
legislative history of local land-use ordinance. Byrnes v. City of
40.105
(Rule 305)
See also annotations under ORS
41.210 and 41.240 in permanent edition.
NOTES OF
DECISIONS
In suit against broker for breach of
fiduciary duty by misrepresentation or failure to disclose material facts, jury
instruction that defendant broker had burden of proving full performance of its
duty of full disclosure was incorrect under this section. Lindland v. United
Business Investments, 298 Or 318, 693 P2d 20 (1984)
LAW REVIEW
CITATIONS: 19 WLR 379 (1983)
40.115
(Rule 307)
See also annotations under ORS
41.210 and 41.240 in permanent edition.
LAW REVIEW
CITATIONS: 19 WLR 377 (1983)
40.120
(Rule 308)
LAW REVIEW
CITATIONS: 19 WLR 361 (1983); 62 OLR 485 (1983); 26 WLR 1039 (1990)
40.125
(Rule 309)
NOTES OF
DECISIONS
An instruction that could give the jury
impression that, in absence of evidence from defendant an element of the charge
is to be presumed from proof of different facts, violates this rule because it
does not make clear to the jury that finding the presumed fact is merely an
inference that it is permitted to draw. State v. Nossaman, 63 Or App 789, 666 P2d 1351 (1983)
Jury instruction requiring inference in
prosecution for negotiating bad check that if defendant did not make good on
check within ten days after receiving notice of refusal that he had knowledge
at time check was drawn that it would be dishonored was improper instruction
permitting jury to make presumption as to element of crime and was reversible
error. State v. Short, 88 Or App 567, 746 P2d 742
(1987)
Trial court may not instruct jury that it
may infer firearm was loaded from fact that defendant pointed firearm at
another. State v.
40.135
(Rule 311)
See also annotations under ORS
41.360 in permanent edition.
NOTES OF
DECISIONS
Under former
similar statute (ORS 41.360)
In general
In civil case when basic facts giving rise
to disputable presumption are established, presumption binds trier of fact if
there is no opposing evidence, but if there is, trier must weigh evidence,
giving presumption value of evidence, and determine upon which side evidence
preponderates. Wright v. SAIF, 289 Or 323, 613 P2d 755 (1980)
Consequences intended
Presumption that consequences of act were
intended is inappropriate where intent is element of criminal act. State v.
Bartolon, 8 Or App 538, 495 P2d 772 (1972)
When criminal prosecution is initiated,
state is entitled to rely on presumptions that defendant is sane and intended
ordinary consequences of acts. State v. Keys, 25 Or
App 15, 548 P2d 205 (1976)
Ownership of property
Criminal defendant may rely on ownership
presumption to establish expectation of privacy necessary to challenge search.
State v. Statham, 55 Or App 646, 639 P2d 684 (1982)
Performance of official duty
Statutory presumption that tax assessor
has faithfully performed assessor’s procedural duty does not extend to
valuation assessor places on property. J.R. Widmer, Inc. v. Dept. of Rev., 261
Or 371, 494 P2d 854 (1972)
Condition precedent to presumption that
official duty has been regularly performed is that circumstances of particular
case add some element of probability. Nyman v. City of
Identity of name
Court may declare nonidentity as matter of
law only if proof of nonidentity is so conclusive that reasonable minds could
not dispute matter. Lynd v. Rockwell Mfg., 276 Or 341, 554 P2d 1000 (1976)
Literal identity of names is necessary to
trigger presumption of identity of persons so as to present prima facie case,
and mere similarity of names, without additional corroborating evidence, will
not support finding of identity of persons. State v. Garrett, 281 Or 281, 574
P2d 639 (1978)
Contract of marriage
Burden is on party challenging the
marriage to disprove, by most cogent and satisfactory evidence, validity of
marriage.
Presumption will not be overcome by
failure to produce valid marriage certificate.
Continuing existence
Presumption that “thing once proved to
exist continues as long as is usual with things of that nature” applies only to
factual condition established in prior adjudication, and defendant, who had
been previously committed as “mentally ill,” was not entitled to instruction on
presumption phrased in terms of insanity. State v. Weller, 285 Or 457, 591 P2d
732 (1979)
Where event is of easily terminable
nature, presumption cannot support finding beyond reasonable doubt that event
has continued. State v. Harris, 288 Or 703, 609 P2d 798 (1980)
Under
Evidence Code
Presumption that person not heard from in
seven years is dead does not prohibit presuming death of person missing for
shorter period of time. State v. Lerch, 63 Or App 707, 666 P2d 840 (1983), aff’d
296 Or 377, 677 P2d 678 (1984)
Where mother and husband were not married
at time child was born, born-in-wedlock presumptions cannot apply. Dept. of
Human Resources v. Mock, 83 Or App 1, 730 P2d 553 (1986),
Presumption that writing is truly dated
does not raise presumption that writing was mailed on same day as written. SAIF
v. Tull, 113 Or App 449, 832 P2d 1271 (1992)
COMPLETED
CITATIONS (for ORS 41.360 in permanent edition): Williamson v. State Acc. Ins.
Fund, 6 Or App 95, 487 P2d 110 (1971)
ATTY. GEN.
OPINIONS
Under
former similar statute (ORS 41.360)
Statutory presumption that permit is
issued in accordance with prescribed standards as rebuttable, (1971) Vol 35, p
844
LAW REVIEW
CITATIONS
Under
Evidence Code
19 WLR 374 (1983); 62 OLR 493 (1983)
40.150
(Rule 401)
See also annotations under ORS
41.220 in permanent edition.
NOTES OF
DECISIONS
There are seven factors to be considered
as guidelines to determine relevance or probative value of proffered scientific
evidence under this rule. State v. Brown, 297 Or 404, 687 P2d 751 (1984)
In prosecution under child neglect
statute, ORS 163.545, evidence of whereabouts of mother and that she was
drinking beer and fact that there was house fire and that children died in fire
was relevant and properly admitted. State v. Goff, 297 Or 635, 686 P2d 1023
(1984)
Testimony that defendant had chased
another person with hammer 20 years ago was not probative of defendant’s intent
at time of shooting. State v. Parks, 71 Or App 630,
693 P2d 657 (1984)
Five-step analysis in weighing probative
and prejudicial value of evidence is: 1) need for evidence; 2) certainty that
other crime was committed by defendant; 3) strength or weakness of evidence; 4)
inflammatory effect on jury; and 5) time-consuming and distracting nature of
proof of other crime. State v. Johns, 301 Or 535, 725 P2d 312 (1986); State v.
Kim, 111 Or App 1, 824 P2d 1161 (1992),
In determining relevance of prior crime
evidence to issue of intent or absence of mistake, court should consider: 1)
whether intent is part of current charged act; 2) whether prior bad act
required intent; 3) whether victim was identical or of same class; 4)
similarity of acts; 5) similarity of physical elements; and 6) whether evidence
meeting first five criteria is unduly prejudicial or inflammatory. State v.
Johns, 301 Or 535, 725 P2d 312 (1986)
Where inference could be drawn that
defendant’s ability to drive was impaired by alcohol, trial court did not abuse
its discretion by admitting evidence of officer’s observations and
blood-alcohol test in prosecution of defendant for reckless driving. State v.
Vorseth, 100 Or App 359, 786 P2d 217 (1990)
Where defendant’s motive was not relevant
to issue of whether he acted “with intent” to conspire to commit crime of
burglary or “knowingly” in committing crime of burglary and theft under this
section, proffered evidence was not admissible as evidence of defendant’s state
of mind. State v. Troen, 100 Or App 442, 786 P2d 751 (1990),
Evidence of how parties acted after
purported rescission is probative of whether they intended to rescind. Pfeifer
v. DME Liquidating, Inc., 101 Or App 106, 789 P2d 266
(1990)
Evidence that defendant had alleged
association with gang members and that gang members used stolen cars in illegal
activities was irrelevant to prove defendant’s knowledge that car was stolen.
State v. Stone, 104 Or App 534, 802 P2d 668 (1990)
If choice-of-evils defense is unavailable
under substantive law, evidence in support of defense is irrelevant. State v.
Clowes, 310 Or 686, 801 P2d 789 (1990)
Trial court did not abuse its discretion
in admitting evidence that defendant had told victim, his wife, that defendant
had killed girlfriend, where that evidence could make it less likely victim
would have consented to defendant’s entry into apartment where defendant
allegedly attempted to rape her. State v. Carrillo, 108 Or App 442, 816 P2d 654
(1991),
Where evidence was insufficient to support
determination that uncharged acts were sufficiently similar among themselves or
to charged offenses to support rational inference of distinctiveness probative
of identity to crimes charged, evidence of three prior bad acts was not
relevant to prove person who committed them also committed charged offenses.
State v. Westby, 117 Or App 14, 843 P2d 973 (1992), as modified by 124
Or App 265, 862 P2d 1318 (1993),
Sidewalk dedication ordinance is relevant
to issue of just compensation in condemnation case. Dept. of Trans. v.
Lundberg, 312 Or 568, 825 P2d 641 (1992)
Documents and cash belonging to defendant
together with photos of defendant’s home and bank records, standing alone
proved little about who possessed marijuana in storage unit, but considered in
combination with other testimony, tended to show that defendant was drug
dealer, and therefore was relevant. State v. Nunez, 121 Or
App 578, 855 P2d 1162 (1993)
Forensic DNA testing has sufficient
scientific reliability to have probative value in matters of identification.
State v. Futch, 123 Or App 176, 860 P2d 264 (1993), aff’d 324 Or 297,
924 P2d 832 (1996)
RFLP method of DNA analysis and resulting
testimony concerning occurrence of shared trait in population was admissible.
State v. Futch, 123 Or App 176, 860 P2d 264 (1993), aff’d 324 Or 297,
924 P2d 832 (1996); State v. Herzog, 125 Or App 10, 864 P2d 1362 (1993), aff’d
324 Or 294, 924 P2d 817 (1996)
Where credibility of witness was called
into question by defendant, testimony that defendant threatened witness during
trial recess was admissible to show bias of defendant toward witness. State v.
Collier, 124 Or App 100, 861 P2d 397 (1993),
Polymerase chain reaction form of DNA
testing was sufficiently reliable to be relevant and probative. State v.
Evidence that defendant had previously
possessed different weapon of same unique type as murder weapon was admissible
to show defendant’s proclivity for possessing that type of weapon. State v.
Trinh, 126 Or App 324, 868 P2d 779 (1994),
Evidence of general tendency of drivers to
react to highway design in particular manner was relevant to determining likely
cause of particular collision. Dyer v. R.E. Christiansen Trucking, Inc., 318 Or
391, 868 P2d 1325 (1994)
Evidence addressing weaknesses in proof is
directly relevant as part of case in chief and cannot be restricted to use as
rebuttal evidence. State v.
Physician’s diagnosis that patient is
suffering from particular condition is subject to foundational requirements for
scientific evidence. State v. Sanchez-Cruz, 177 Or App 332, 33 P3d 1037 (2001),
40.155
(Rule 402)
See also annotations under ORS
42.230 in permanent edition.
NOTES OF
DECISIONS
Testimony that defendant had chased
another person with hammer 20 years ago was not probative of defendant’s intent
at time of shooting. State v. Parks, 71 Or App 630,
693 P2d 657 (1984)
Evidence from witnesses who watched
defendant’s driving for 10 to 15 minutes about 5 minutes before and two and one
half miles from fatal collision was admissible under this section in
prosecution for criminally negligent homicide. State v. Brinager, 96 Or App
160, 771 P2d 658 (1989),
Where testimony regarding matrix system
was relevant to informant’s credibility and to issue of whether informant had “deal”
with state and was acting as state’s agent, evidence was properly admitted.
State v. Smith, 310 Or 1, 791 P2d 836 (1990)
State’s introduction of evidence of victim’s
pregnancy was relevant to prove defendant’s motive. State v. Smith, 310 Or 1,
791 P2d 836 (1990)
If choice-of-evils defense is unavailable
under substantive law, evidence in support of defense is inadmissible. State v.
Clowes, 310 Or 686, 801 P2d 789 (1990)
40.160
(Rule 403)
See also annotations under ORS
45.530 in permanent edition.
NOTES OF
DECISIONS
Under
former similar statute (ORS 45.530)
Where existing evidence leaves issue in
question, court may not exclude additional evidence as being cumulative. State
v. Smith, 59 Or App 92, 650 P2d 178 (1982)
Under
Evidence Code
Factors to be considered in determining
whether probative value of relevant evidence outweighs any prejudicial impact
it may have are: 1) need for the evidence; 2) its persuasiveness; and 3) its
inflammatory effect upon jury; citing State v. Ritchie, 50 Or App 257,
622 P2d 768 (1981). State v. Huffman, 65 Or App 594,
672 P2d 1351 (1983)
Probative value of polygraph evidence is
far outweighed by reasons for exclusion. State v. Brown, 297 Or 404, 687 P2d
751 (1984)
In prosecution under child neglect
statute, ORS 163.545, evidence of whereabouts of mother and that she was
drinking beer and fact that there was house fire and that children died in fire
was relevant and properly admitted. State v. Goff, 297 Or 635, 686 P2d 1023 (1984)
Discretion of trial judge to exclude
evidence relevant to bias or interest only obtains once sufficient facts have
been established from which jury may infer bias or interest. State v. Hubbard,
297 Or 789, 688 P2d 1311 (1984); MacDonald v. Cottle, 133 Or App 35, 889 P2d
1320 (1995),
Evidence of remedial measures taken by
manufacturer to correct warning label before accident occurred is admissible.
Hackett v. Alco Standard Co., 71 Or App 24, 691 P2d 142 (1984),
Where defendant was charged with arson in
connection with burning own house, evidence of fraudulent insurance claim was
not unfairly prejudicial under this rule. State v. White, 71 Or App 299, 692
P2d 167 (1984),
Where admission of defendant’s notice and
withdrawal of lack of responsibility defense was not necessary evidence to
offset claim that defendant’s retardation prevented defendant from making
voluntary statements to police, relevance of evidence was outweighed by danger
of unfair prejudice. State v. Hickman, 71 Or App 471,
692 P2d 672 (1984)
Where defendant in case of attempted
murder asserted self-defense and attempted to present evidence concerning “battered
spouse syndrome,” trial court did not abuse its discretion in striking
testimony of women’s crisis center counselor that center had received
approximately 100 calls from defendant in two month period and concerning
substance of calls where, inter alia,
last contact with center was approximately seven months before shooting,
testimony would have been cumulative of other evidence and would have prolonged
trial. State v.
Exclusion of relevant evidence to avoid
prejudice was premature where proper remedy was motion for separate trial in
case where blood test was inadmissible on DUII charge but admissible on assault
charge. State v. Armenta, 74 Or App 219, 702 P2d 1113
(1985)
Five-step analysis in weighing probative
and prejudicial value of evidence is: 1) need for evidence; 2) certainty that
other crime was committed by defendant; 3) strength or weakness of evidence; 4)
inflammatory effect on jury; and 5) time-consuming and distracting nature of
proof of other crime. State v. Johns, 301 Or 535, 725 P2d 312 (1986); State v.
Kim, 111 Or App 1, 824 P2d 1161 (1992),
Where officer saw defendant drive during
same period of suspension but on later occasion than that which formed basis of
trial officer’s testimony, that fact was admissible to rebut defense witness’s
testimony on cross-examination that defendant did not drive during that period,
because probative value of testimony outweighed other factors under this
section. State v. Smith, 86 Or App 239, 739 P2d 577
(1987)
Probative value of evidence submitted by
state in its case in chief of defendant’s pre-arrest silence for purpose of
demonstrating consciousness of guilt was outweighed by danger it would unfairly
prejudice jury. State v. Pigg, 87 Or App 625, 743 P2d
770 (1987)
In determining whether to admit relevant
evidence of uncharged misconduct, court should: 1) assess probative value,
weight and strength evidence provides to proponent’s case; 2) determine
prejudicial effect and likelihood evidence will distract jury; 3) balance need
for evidence against prejudicial effect; and 4) determine whether evidence
should be admitted or excluded entirely or admitted only in part. State v.
Mayfield, 302 Or 631, 733 P2d 438 (1987)
This rule bars introduction of polygraph
test results in evidence even when parties have stipulated to its
admissibility. State v.
Amendment of ORS 40.355 (Rule 609),
deleting balancing of probative value against prejudicial effect makes this
rule’s balancing inapplicable as to prior conviction evidence. State v. Carr,
91 Or App 673, 756 P2d 1263 (1988), Sup Ct review denied; State v. Babb,
91 Or App 676, 756 P2d 1264 (1988), Sup Ct review denied; State v. Dick,
91 Or App 294, 754 P2d 628 (1988), Sup Ct review denied; State v. King,
307 Or 332, 768 P2d 391 (1989); State v. Archer, 150 Or App 505, 947 P2d 620
(1997)
In product liability “failure to warn”
case, defendant’s post-injury addition of container warnings and subsequent
discontinuance of product distribution was either irrelevant to care exercised
before injury or was so marginally relevant, that trial court was within
discretion in excluding evidence for purpose of showing what defendants did or
did not know. McPike v. Enciso’s Cocina Mejicana, Inc., 93 Or App 269, 762 P2d
315 (1988)
Tape recording of conversation between
officer and defendant should have been edited to delete impermissible comment
on witness’ credibility because prejudicial effect of officer’s opinion of
credibility of complaining witness outweighed probative value of defendant’s
response. State v. McQuisten, 97 Or App 517, 776 P2d
1304 (1989)
Where evidence that defendant had sexually
abused victim’s mother 20 years earlier was inflammatory and uncertain due to
staleness, admission under this section was abuse of discretion. State v.
Mason, 100 Or App 240, 785 P2d 378 (1990)
Where inference could be drawn that
defendant’s ability to drive was impaired by alcohol, trial court did not abuse
its discretion by admitting evidence of officer’s observations and
blood-alcohol test in prosecution of defendant for reckless driving. State v.
Vorseth, 100 Or App 359, 786 P2d 217 (1990)
Exclusion of evidence of prior cocaine use
by victim of alleged rape was not abuse of discretion by trial court. State v.
Smith, 101 Or App 483, 791 P2d 500 (1990)
Because defendant’s defense rested heavily
on expert’s opinion there was need for state to present evidence that expert’s
opinion was not entitled to much weight, so probative
value of evidence was not substantially outweighed by danger of unfair
prejudice. State v. Shearer, 101 Or App 543, 792 P2d 1215 (1990),
Where defendant was charged with DUII and
witness testified defendant had poor balance and was staggering, medical
records showing that defendant had undergone extensive leg surgery three years
prior was not remote and went to basis of establishing defense. State v.
Robinson, 104 Or App 613, 802 P2d 688 (1990)
Where danger that jury would have found
defendant guilty of aggravated murder and in effect, condemned him to death on
basis that he had wild look and looked sleazy when he tipped nude dancer is
infinitesimally slight, especially given trial court’s instruction, danger of
unfair prejudice did not substantially outweigh probative value of witness’
testimony identifying defendant as last person with whom victim was seen. State
v. Nefstad, 309 Or 523, 789 P2d 1326 (1990)
Where defendant can viably describe
conversation with police officer without mention of polygraph examination and
defendant was not entitled to suppression of voluntary inconsistent statements
merely because they were made during prepolygraph test interview, sanitized
statements are admissible. State v. Hart, 309 Or 646, 791 P2d 125 (1990)
Where there was extremely remote
possibility that jury would take testimony about matrix system into
consideration in determining defendant’s guilt or sentence, probative value of
testimony was not “substantially outweighed” by “danger of unfair prejudice,
confusion of the issues or misleading the jury,” and evidence was properly
admitted. State v. Smith, 310 Or 1, 791 P2d 836 (1990)
Where state’s introduction of evidence of
victim’s pregnancy was prejudicial to defendant’s case but highly probative of
defendant’s motive, trial court did not abuse its discretion in allowing
evidence and denying defendant’s motion for mistrial. State v. Smith, 310 Or 1,
791 P2d 836 (1990)
Trial court did not abuse discretion in
finding that unfair prejudice did not substantially outweigh probative value
where court admitted evidence that defendant, rape victims’ grandfather, was
having sexual intercourse with his daughter, victims’ mother. State v. Hall,
108 Or App 12, 814 P2d 172 (1991),
When defendant contended that health of spouse
depended on illegal use of marijuana, evidence of baggies and scales and
testimony of police officer that baggies and scales indicate that defendant
grew marijuana for non-personal use were relevant to prove manufacture of
controlled substance. State v. Carsner, 117 Or App 406, 844 P2d 257 (1992),
Polygraph report was admissible when
offered only to show effect of test on person’s state of mind. Fromdahl and
Fromdahl, 314 Or 496, 840 P2d 683 (1992)
Where evidence showed state of mind of
defendant, admission of victim’s prior sexual abuse allegation against
defendant was proper. State v. Bannister, 118 Or App
252, 846 P2d 1189 (1993)
Trial court did not abuse its discretion
by admitting X-rated video tapes when tapes were offered to corroborate
testimony of complaining witnesses and not to show defendant’s propensity to
commit sexual abuse. State v. Rood, 118 Or App 480, 848 P2d 128 (1993),
Forensic DNA testing is generally
admissible. State v. Futch, 123 Or App 176, 860 P2d 264 (1993), aff’d
324 Or 297, 924 P2d 832 (1996)
Use of monomorphic probe in forensic DNA
testing was reliable test method. State v. Futch, 123 Or App 176, 860 P2d 264
(1993), aff’d 324 Or 297, 924 P2d 832 (1996)
Probative value of results of polymerase
chain reaction type of DNA testing, expressed as percentage of population
having same gene characteristic as crime scene sample and defendant, was not
outweighed by possibility of prejudice. State v.
To determine admissibility of statements
made in context of polygraph examination, court must determine first whether
statement expresses defendant’s belief or recollection as to independently
relevant fact and secondly whether statement can be redacted to exclude
reference to polygraph examination without significantly altering meaning of
original statement. State v. Harberts, 315 Or 408, 848 P2d 1187 (1993)
Evidence that defendant was in violation
of parole conditions at time of incident was admissible to establish motive for
assault on police officer. State v.
Where prosecution stressed that possession
of weapon was legal and court gave proper limiting instruction, evidence that
defendant previously possessed different weapon of same unique type as murder
weapon was not unfairly prejudicial. State v. Trinh, 126 Or App 324, 868 P2d
779 (1994),
Where criminal defendant proffers
out-of-court photographic identification evidence to impeach credibility of
eyewitness, nine factors are relevant for determining admissibility under Rule
401/403 balancing test. State v. Johanesen, 319 Or 128, 873 P2d 1065 (1994)
Testimony of judge as nonexpert witness
regarding judge’s personal observation of events or judge’s communications to
attorneys during prior trial at which judge presided is not per seunfairly prejudicial. Sansone v.
Garvey, Schubert & Barer, 188 Or App 206, 71 P3d 124 (2003),
LAW REVIEW
CITATIONS
Under
Evidence Code
25 WLR 847 (1989); 68 OLR 238 (1989); 78
OLR 315 (1999)
40.170
(Rule 404)
NOTES OF
DECISIONS
Evidence of prior incidents during which
police told defendant that his neighbors could see him exposing himself in his
living room window was properly admitted to rebut defendant’s contention that
he did not know he could be seen. State v. Louis, 296 Or 57, 672 P2d 708 (1983)
“Other crimes” evidence that defendant was
present when state witness manufactured illegal drug in defendant’s home was
admissible where defendant’s testimony minimized extent of relationship with
witness, who testified defendant confided in him regarding defendant’s arson
plans. State v.
Suppression of evidence tying jacket worn
by perpetrator of crime to defendant as perpetrator of other offenses because
state did not need evidence and could
get jacket in evidence in another manner without risk of prejudice inherent in “other
crimes” evidence was erroneous. State v. Browder, 69 Or App 564, 687 P2d 168
(1984),
Under circumstances of case, admission of
evidence of defendant’s prior sex acts was proper. State v. Fears, 69 Or App
606, 688 P2d 88 (1984),
Where defendant’s possession of key to
another stolen vehicle was introduced as basis of inference that defendant knew
vehicle in which he was riding was taken and being used unlawfully, evidence of
defendant’s possession of key was properly admitted. State v. Phelps, 73 Or App 68, 698 P2d 43 (1985)
Defendant, charged with first degree
assault, who testified concerning earlier altercations with victim to show
victim’s aggressiveness did not, by testimony of a specific instance of peaceful
conduct, put his character for peacefulness in issue. State v. Peacock, 75 Or App 217, 706 P2d 982 (1985)
It was reversible error to permit witness
to testify as to alleged prior act of sodomy by defendant where testimony was
relevant only to defendant’s propensity to commit current alleged act of
sodomy. State v. Bovee, 75 Or App 544, 706 P2d 1005
(1985)
Evidence of defendant’s prior conviction
for rape was relevant in trial on charge of attempted kidnapping to show
defendant’s criminal intent. State v. Morgan, 80 Or App 747, 724 P2d 334
(1986),
In evaluating prior crime evidence on
issue of intent or absence of mistake, court should determine: whether
presently charged act requires proof of intent, whether prior act required
intent, whether victim in prior act was same victim or in same class as victim
in present case, whether prior act was same as or similar to acts in present
crime, and whether probative value of evidence outweighs Rule 403 concerns.
State v. Harris, 81 Or App 574, 726 P2d 943 (1986),
Court has discretion to admit prior crime
evidence under any theory of logical relevance other than solely to prove both
character of person and that person acted in conformity therewith. State v.
Johns, 301 Or 535, 725 P2d 312 (1986); State v. Bolt, 108 Or App 746, 817 P2d
1322 (1991); State v. Herzog, 125 Or App 10, 864 P2d 1362 (1993), aff’d
324 Or 294, 924 P2d 817 (1996)
“Character” refers to disposition or
propensity to commit certain crimes, wrongs or acts. State v. Johns, 301 Or
535, 725 P2d 312 (1986)
Where state offered hearsay statement
which implied defendant assaulted someone other than named victim during same
incident, trial court did not err in admitting statement because it was not
offered solely to prove defendant’s character or that he acted in conformity
with that character but as means of identifying defendant as participant in
crime. State v.
Where officer saw defendant drive during
same period of suspension but on later occasion than that which formed basis of
trial officer’s testimony, that fact was admissible to rebut defense witness’s
testimony or cross-examination that defendant did not drive during that period,
because testimony was not offered to establish that defendant drove car, but to
impeach credibility of defense witness. State v. Smith, 86 Or
App 239, 739 P2d 577 (1987)
Defendant may introduce evidence
concerning character trait only if it is trait pertinent to offense charged.
State v. Bailey, 87 Or App 664, 743 P2d 1123 (1987)
Where plaintiff in defamation action
sought damages for harm to his business reputation, plaintiff did not put his
business character in issue within meaning of this section and evidence of
specific instances of plaintiff’s business misconduct was not admissible.
Shirley v. Freunscht, 303 Or 234, 735 P2d 600 (1987)
“Other crimes evidence” offered to prove
identity must show such similarity, in manner or means, as to constitute
distinctive “signature” of perpetrator, but “signature” crime need not be
composed solely of unique or novel elements. State v. Bernson, 93 Or App 115, 760 P2d 1362 (1988)
Evidence of defendant’s
encounters with child victim which occurred after alleged rape admissible as
relevant to show why child had not reported original sexual assault.
State v. Zybach, 308 Or 96, 775 P2d 318 (1989)
Evidence of prior violence by plaintiff’s
husband directed against persons other than plaintiff was not relevant to show
that she feared him and testified in accordance with his version of events.
James v. General Motors of Canada, Ltd., 101 Or App 138, 790 P2d 8 (1990),
Admission of testimony that defendant had
been “out of line” with friend of witness on prior occasion did not prejudice
defendant because it was not reasonable possibility that jury inferred from
testimony that girlfriend of witness had been raped by defendant. State v.
Smith, 101 Or App 483, 791 P2d 500 (1990)
Where state moved to allow testimony by
victim about sexual contacts with defendant on several occasions, evidence was
admissible to demonstrate sexual predisposition of defendant for this
particular victim, but not to demonstrate that defendant had character trait or
propensity to engage in sexual misconduct generally. State v. McKay, 309 Or
305, 787 P2d 479 (1990)
Where neither prosecutor’s question nor
description by witness of defendant in response suggested anything concerning
defendant’s propensity to engage in certain kinds of behavior, his disposition,
or his general personality traits, testimony was not character evidence or
uncharged misconduct evidence. State v. Nefstad, 309 Or 523, 789 P2d 1326
(1990)
To degree that future dangerousness
depends on character, defendant’s character has been placed “in issue” and
evidence of pertinent specific instances of conduct is admissible. State v.
Montez, 309 Or 564, 789 P2d 1352 (1990)
In trespass case, evidence of dispute
between defendant and another neighbor and evidence of similar damage to that
neighbor’s land was admissible to show defendant’s motive, opportunity, intent,
preparation, plan or absence of mistake or accident. Gibson v. Tzantarmas, 108 Or App 270, 815 P2d 221 (1991)
Lawsuits irrelevant to present case served
to suggest that defendant is litigious or person of bad character, thus
prejudicing defendant’s right to have jury determine liability and damages only
by relevant facts. Gibson v. Tzantarmas, 108 Or App
270, 815 P2d 221 (1991)
Trial court properly admitted evidence in
aggravated murder case of prior crime by defendant where numerous points of
similarity existed between the two crimes, few
dissimilarities existed, and distinctiveness or unusual characteristics
of modus earmarked the two crimes as handiwork of defendant. State v. Pinnell,
311 Or 98, 806 P2d 110 (1991)
Evidence regarding sawed-off shotgun used
in prior robbery to which defendant confessed was relevant in defendant’s trial
for murder committed during course of robbery where shotgun’s appearance was so
distinctive that its use instantly earmarked both robberies as handiwork of
same person. State v. Walton, 311 Or 223, 809 P2d 81 (1991)
In defendant’s trial for attempted rape
and attempted kidnapping, evidence of prior bad acts involving picking up girls
in same area was sufficiently similar to allow jury to infer defendant intended
to attempt kidnap and rape and was probative to show motive or plan. State v.
Painter, 113 Or App 337, 833 P2d 303 (1992),
Where evidence was insufficient to support
determination that uncharged acts were sufficiently similar among themselves or
to charged offenses to support rational inference of distinctiveness probative
of identity to crimes charged, evidence of three prior bad acts was not
relevant to prove person who committed them also committed charged offenses.
State v. Westby, 117 Or App 14, 843 P2d 973 (1992), as modified by 124
Or App 265, 862 P2d 1318 (1993),
Evidence of other crimes is admissible if
independently relevant for noncharacter purpose, if sufficient proof shows
uncharged misconduct was committed by defendant and if probative value of
uncharged misconduct is not substantially outweighed by OEC 403 considerations.
State v. Johnson, 313 Or 189, 832 P2d 443 (1992); State v.
Evidence in rape case that defendant had
engaged in sexual intercourse with adult victim since victim was child was
admissible to show why actions of victim did not constitute consent. State v.
Bartley, 121 Or App 301, 854 P2d 996 (1993),
Exclusion of character evidence applies to
prior bad acts of third parties, not just defendant or victim. State v.
Bockorny, 125 Or App 479, 866 P2d 1230 (1993); 126 Or App 504, 869 P2d 349
(1994),
Evidence of defendant’s
prior acts of physical abuse toward child admissible in kidnapping trial to
show intent and motive. State v. Barkley, 315 Or 420, 846 P2d 390 (1993)
Expert testimony comparing character
traits of defendant with typical criminal character traits was scientific
evidence subject to requirement of establishing probative value. State v.
Lawson, 127 Or App 392, 872 P2d 986 (1994),
Prior bad acts by victim were admissible
to show defendant had reasonable belief supporting claim of self-defense. State
v. Lunow, 131 Or App 429, 885 P2d 731 (1994)
Evidence of series of identical acts
before and after murder was admissible under “doctrine of chances” where
concealment of identity of person committing acts was alleged motive for
murder. State v. Wieland, 131 Or App 582, 887 P2d 368 (1994),
In considering whether similar prior act
is criminal signature, court must weigh both similarities and dissimilarities
between acts. State v. Rinkin, 141 Or App 355, 917 P2d
1035 (1996)
Where offer of proof contains both
admissible and inadmissible material, court may reject entire offer. State v.
Thomas, 149 Or App 557, 945 P2d 1056 (1997)
Where defendant was convicted of first
crime, time lapse and geographic distance between that crime and later crimes
are not significant factors in showing signature behavior. State v. Barnum, 157
Or App 68, 970 P2d 1214 (1998), aff’d 333 Or
297, 39 P3d 178 (2002)
Specific instances of misconduct are
admissible to show state of mind of actor. State v. Stevens, 328 Or 116, 970
P2d 215 (1998)
Provision making relevant evidence
admissible except as provided by constitution or certain evidentiary rules does
not change traditional standards for determining relevance of evidence showing
propensity to commit crime. State v. Dunn, 160 Or App 422, 981 P2d 809 (1999),
Exception for signature-crime evidence
pertains only to establishing who committed undisputed crime, not whether crime
actually occurred. State v. Baughman, 164 Or App 715,
995 P2d 551 (2000)
Where malice was material element of
crime, defendant’s testimony regarding nonmalicious motive for behavior did not
constitute character evidence. State v. Dan, 172 Or
App 645, 20 P3d 829 (2001)
Defendant’s propensity to act in sexually
proper manner in all varying situations of life is trait of character. State v.
Enakiev, 175 Or App 589, 29 P3d 1160 (2001)
Where evidence is admissible under some
but not all of grounds specified within rule, and defendant does not cite
specific grounds within rule allowing admission of evidence, ruling of
inadmissibility is not error. State v. Ryel, 182 Or App 423, 51 P3d 8 (2002),
Where defendant is alleged to have acted
recklessly, fact that prior similar act by defendant had adverse consequences
is relevant for inferring that defendant had heightened subjective awareness of
risk. State v. Hardman, 196 Or App 522, 102 P3d 722
(2004)
1997 amendment limiting trial court
authority to exclude relevant evidence may not be applied if trial is for crime
committed prior to effective date of amendment. State v. Shaw, 338 Or 586, 113
P3d 898 (2005)
Essential question is not whether evidence
of prior bad acts fits within expressly mentioned category of exceptions, but
whether and how evidence is logically relevant to noncharacter issue in case.
State v. Johnson, 340 Or 319, 131 P3d 173 (2006)
LAW REVIEW
CITATIONS: 25 WLR 829 (1989); 29 WLR 927 (1993); 78 OLR 315 (1999)
40.175
(Rule 405)
NOTES OF
DECISIONS
Defendant, charged with first degree
assault, who testified concerning earlier altercations with victim to show
victim’s aggressiveness did not, by testimony of specific instance of peaceful
conduct, put his character for peacefulness in issue. State v. Peacock, 75 Or App 217, 706 P2d 982 (1985)
Question “Is there any particular kind of
lie which (the victim) has a reputation for telling?” is functional equivalent
of asking witness to relate specific instances of conduct as proof of character
trait of victim for untruthfulness and is improper under this rule. State v.
On cross-examination, reference to
specific instance of conduct must be based on reliable evidence but need not be
based on admissible evidence. In re Tichenor, 340 Or 108, 129 P3d 690 (2006)
LAW REVIEW
CITATIONS: 78 OLR 315 (1999)
40.180
(Rule 406)
NOTES OF DECISIONS
Admissibility of habit evidence is within
discretion of trial court. Charmley v. Lewis, 77 Or App 112, 711 P2d 984
(1985), aff’d302 Or 324, 729 P2d 567 (1986)
Plaintiff’s regular practice of crossing
particular intersection within unmarked crosswalk was admissible evidence of
habit, as it was evidence of frequent and invariable or consistent response
that was specific and distinctive. Charmley v. Lewis, 302 Or 324, 729 P2d 567
(1986)
Behavior can only achieve status of habit
under this rule if situation giving rise to it reasonably could be responded to
in variety of ways, each having unique characteristics by which it can be
readily distinguished. Charmley v. Lewis, 302 Or 324, 729 P2d 567 (1986)
“Distinctive” requires that behavior at
least be semi-automatic and recurring response, beyond mere obedience to law,
by actor confronted with particular situation to which variety of definable
responses would be more or less equally reasonable. Charmley v. Lewis, 302 Or
324, 729 P2d 567 (1986)
40.185
(Rule 407)
NOTES OF
DECISIONS
Evidence of remedial measures taken by
manufacturer to correct warning label before accident occurred is admissible.
Hackett v. Alco Standard Co., 71 Or App 24, 691 P2d 142 (1984),
This rule does not exclude evidence of
change of language of warning sign after accident as change would not have made
accident less likely to occur and no evidence indicated change was caused by
accident. Van Gordon v. PGE, 298 Or 497, 693 P2d 1285 (1985)
This section applies to strict liability
cases as well as negligence cases. Krause v. American Aerolights, 307 Or 52,
762 P2d 1011 (1988)
Investigation and report concerning cause
of event are not excludable as remedial measures because they are not capable
of having been taken prior to event. Ensign v.
LAW REVIEW
CITATIONS: 68 OLR 235 (1989)
40.190
(Rule 408)
See also annotations under ORS
41.810 in permanent edition.
NOTES OF
DECISIONS
Informing jury that plaintiff had settled
with another potential defendant prior to suit so jury would not speculate on
absence was not offering evidence of settlement “for another purpose” and so
was improper. Holger v. Irish, 316 Or 402, 851 P2d 1122 (1993)
Workers’ Compensation Board correctly
considered offer to settle spouse’s derivative claim in determining
reasonableness of proposed settlement of claimant’s underlying claim. Weems v.
American International Adjustment Co., 123 Or App 83, 858 P2d 914 (1993), aff’d
319 Or 140, 874 P2d 72 (1994)
Admission of prior pleadings did not cause
evidence of settlement with second defendant to become independently relevant
to claim. Pounds v.
In determining whether to award attorney
fees, court may consider offer of compromise as evidence of objective
reasonableness of parties and attorneys. Bidwell and Bidwell, 173 Or App 288, 21 P3d 161 (2001)
Party may offer evidence of completed
settlement agreement to establish that agreement limited scope or amount of
current claim. Cyberco Holdings, Inc. v. Con-Way Transportation Services, Inc.,
212 Or App 576, 159 P3d 359 (2007),
40.200
(Rule 410)
LAW REVIEW
CITATIONS: 74 OLR 1365 (1995)
40.205
(Rule 411)
NOTES OF
DECISIONS
Evidence of insurer participation in
insurance pooling agreement is not excludable evidence that insurer was insured
against liability. Goddard v. Farmers Insurance Co., 202 Or App 79, 120 P3d
1260 (2005), modified 203 Or App 744, 126 P3d 682 (2006), aff’d
344 Or 232, 179 P3d 645 (2008)
40.210
(Rule 412)
NOTES OF
DECISIONS
Under
former similar statute (ORS 163.475)
The prohibition on the introduction of
evidence of the complainant’s prior sexual conduct was held unconstitutional as
a denial of the right of confrontation when the prior conduct was relevant in
showing a motive for a false accusation of rape. State v. Jalo, 27 Or App 845, 557 P2d 1359 (1976)
In trial of defendant charged with rape,
sodomy and sexual abuse, this section did not prevent state from introducing
evidence of prior sexual acts between defendant and two victims, both of whom
were under age of twelve at time incidents allegedly occurred. State v.
Eggleston, 31 Or App 9, 569 P2d 1088 (1977),
Evidence of particular sexual conduct by
victim is admissible where relevant for purpose of eroding victim credibility.
State v. Lantz, 44 Or App 695, 607 P2d 197 (1980),
Provision of this section which authorizes
in camera hearing to determine
admissibility of evidence of victim’s prior sexual conduct does not violate
right to public trial guaranteed by Article I, Sections 10 and 11 of the Oregon
Constitution. State v. Blake, 53 Or App 906, 633 P2d
831 (1981)
Under
Evidence Code
Trial court’s denial of defendant’s
request to cross-examine complaining witness because defendant had not complied
with notice requirements of this rule was erroneous interpretation of rule and
reversible error. State v. Reiter, 65 Or App 304, 672
P2d 56 (1983)
Where evidence of alleged prior sexual
relations between defendant and complainant are relevant to defendant’s claim
of jealously and anger as motive falsely to charge rape, evidence is admissible
under this rule. State v. Morgan, 66 Or App 675, 675
P2d 513 (1984)
Evidence that victim’s relationship with
another man involved “bondage and discipline” has no relevance to complainant’s
alleged motive to falsify and is not admissible. State v. Bass, 69 Or App 166,
683 P2d 1040 (1984),
Evidence of previous false accusations of
sexual abuse by alleged victim is not evidence of past sexual behavior within
meaning of Rape Shield Law and is not inadmissible. State v. LeClair, 83 Or App
121, 730 P2d 609 (1986),
Trial court erred in addressing
admissibility of items of evidence because particular items did not concern “past
sexual behavior” of victim. State v. Wright, 97 Or App 401, 776 P2d 1294
(1989),
Evidence of prior sexual abuse of victim
is “past sexual behavior” but was not admissible because it is relevant neither
to motive for victim to accuse this particular defendant nor to rebut any
scientific or medical evidence that state offered. State v. Wright, 97 Or App
401, 776 P2d 1294 (1989),
Evidence of victim’s hostility toward
defendant and accusation of sexual abuse against another man by victim’s friend
is not admissible because it is not “sexual behavior.” State v. Wattenbarger,
97 Or App 414, 776 P2d 1292 (1989),
Evidence of victim’s abuse by other people
after act with which defendant was charged but before trial is “past sexual
behavior” but is not admissible because it does not establish bias or motive
for victim to falsely accuse defendant. State v. Wattenbarger, 97 Or App 414,
776 P2d 1292 (1989),
Evidence that does not concern victim’s
past sexual behavior is not properly admitted or excluded in pretrial hearing.
State v. Weeks, 99 Or App 287, 782 P2d 430 (1989),
Hearing to determine admissibility of
evidence of victim’s past sexual behavior is required to be held in judge’s
chamber but public is not categorically excluded from hearing. State ex rel
Davey v. Frankel, 312 Or 286, 823 P2d 394 (1991)
Notice requirement for presentation of
sexual behavior evidence applies to both direct examination and
cross-examination. State v. Lajoie, 316 Or 63, 849 P2d 479 (1993)
Admission of evidence to show motive does
not require showing that victim has ill will toward defendant. State v. Beden,
162 Or App 178, 986 P2d 94 (1999)
State interest served by rape-shield law
can outweigh defendant’s interest served by constitutional right to compulsory
process. State v. Beeler, 166 Or App 275, 999 P2d 497 (2000),
LAW REVIEW
CITATIONS
Under
former similar statute (ORS 163.475)
55 OLR 493-518 (1976)
Under
Evidence Code
28 WLR 127 (1991); 71 OLR 497 (1992)
40.225
(Rule 503)
See also annotations under ORS
44.040 in permanent edition.
NOTES OF
DECISIONS
Under
former similar statute (ORS 44.040)
Testimony of defendant’s former attorney
that he had informed defendant of date of trial did not violate attorney-client
privilege. State v. Bilton, 36 Or App 513, 585 P2d 50
(1978)
Privilege does not apply to prevent
disclosure of creation or existence of attorney-client relationship or fact
that client consulted with attorney about matter. State v. Bilton, 36 Or App 513, 585 P2d 50 (1978)
Under
Evidence Code
Notification of defendant by former
counsel of date set for appearance for arraignment is admissible over objection
of defendant that it is protected by attorney-client privilege. State v. Ogle,
297 Or 84, 682 P2d 267 (1984)
“Representative of a client,” as defined
in this rule, refers only to representatives of clients that are corporations
or similar business entities. State v. Jancsek, 302 Or 270, 730 P2d 14 (1986); Little v. Dept. of Justice, 130 Or App 668, 883 P2d 272
(1994),
Where defendant’s lawyer had in his
possession letter written by defendant to third person, trial court’s order to
produce letter did not violate defendant’s lawyer-client privilege because
letter was not between persons described in this rule. State v. Jancsek, 302 Or
270, 730 P2d 14 (1986)
Under this rule, disclosure of dates on
which attorney conferred with client did not fall within attorney-client
privilege because it did not call for disclosure of content of any
communication. State v. Keenan/Waller, 91 Or App 481, 756 P2d 51 (1988), aff’d
307 Or 515, 771 P2d 244 (1989)
In excess liability action, trial court
properly applied attorney client privilege to documents relating to assignment
agreement between insured and his assignees, depositions and file materials
related to underlying medical malpractice case and material in files of insured’s
attorney relating to excess liability action. Stumpf v. Continental Casualty
Co., 102 Or App 302, 794 P2d 1228 (1990)
Release of otherwise privileged
communication between attorney and client pursuant to request for production
under ORCP 43 constitutes waiver of privilege as there is no requirement that
client expressly consent to waive privilege. Goldsborough v. Eagle Crest
Partners, Ltd., 105 Or App 499, 805 P2d 723 (1991), aff’d314 Or 336, 838
P2d 1069 (1992)
Threshold basis for conducting in camera review of allegedly privileged
attorney-client communications does not have to be based on evidence
independent of contested communications. State v. Charlesworth/Parks, 151 Or
App 100, 951 P2d 153 (1997),
Legal advice to representative of client
is “from” client’s lawyer if originating with lawyer, even though it may be
communicated to recipient by other individuals covered by privilege. State ex
rel OHSU v. Haas, 325 Or 492, 942 P2d 261 (1997)
“Representative of the client” includes
employee of any rank, whether or not regular contact with lawyer is part of
job. State ex rel OHSU v. Haas, 325 Or 492, 942 P2d 261 (1997)
Before trial court may engage in in camera review at request of party
opposing privilege on basis of crime-fraud exception, party must present
evidence to support reasonable belief that review may yield evidence that
establishes exception’s applicability. Frease v. Glazer, 330 Or 364, 4 P3d 56
(2000)
Party opposing in camera review of privileged material may seek mandamus
immediately to prevent review or following review may seek mandamus based upon:
1) insufficient evidence to support reasonable belief that review would reveal
applicability of crime-fraud exception; or 2) court determination that
exception applies to materials reviewed. Frease v. Glazer, 330 Or 364, 4 P3d 56
(2000)
Opinion of nontestifying expert based upon
observation independent of confidential communications or confidential
information does not become inadmissible due solely to expert being employed by
party. State v. Riddle, 330 Or 471, 8 P3d 980 (2000)
Nonexistence of privilege extends to all
actions, suits and proceedings alleging breach of duty by lawyer, including
petitions for post-conviction relief. Petersen v. Palmateer, 172 Or App 537, 19
P3d 364 (2001),
LAW REVIEW
CITATIONS
Under
Evidence Code
19 WLR 633 (1983); 24 WLR 160 (1988)
40.230
(Rule 504)
See also annotations under ORS
44.040 in permanent edition.
NOTES OF
DECISIONS
Where defendant telephoned Dammasch State
Hospital and told receptionist that he wanted to speak to a doctor because he “just
killed a man” communication was not confidential and, therefore, was not
privileged; subsequent statements to psychiatrist were not communications made
for purpose of diagnosis or treatment where psychiatrist’s purpose was to keep
defendant on telephone until police arrived rather than to establish
psychotherapist-patient relationship and, therefore, those statements were not
privileged. State v. Miller, 67 Or App 637, 680 P2d
676 (1984)
Defendant hospital’s duty of
confidentiality did not extend beyond patient to patient’s family where facts
disclosed did not concern family and did not arise out of any family
involvement in patient’s treatment. Doe v. Portland Health Centers, Inc., 99 Or App 423, 782 P2d 446 (1989)
Where legislature intended to exclude
person who is specifically consulted for drug and alcohol dependency from
definition of psychotherapist, mother could not claim psychotherapist-patient
privilege as to evidence about her drug and alcohol treatment in termination of
parental rights case. State ex rel Juv. Dept. v. Ashley, 312 Or 169, 818 P2d
1270 (1991); 112 Or App 153, 826 P2d 130 (1992)
Abrogation of privilege by ORS 419B.040
with regard to child abuse cases applies to psychotherapist communication with
patient accused of abuse. State ex rel Juvenile Dept. v. Spencer, 198 Or App
599, 108 P3d 1189 (2005)
LAW REVIEW
CITATIONS: 22 WLR 607 (1986)
40.235
(Rule
504-1)
See also annotations under ORS
44.040 in permanent edition.
NOTES OF
DECISIONS
Under
former similar statute (ORS 44.040)
When a party fails to object to the
privileged testimony of one physician, she waives her physician-patient
privilege as to all other testimony and evidence on the same subject. Triplett
v. Bd. of Social Protection, 19 Or App 408, 528 P2d
563 (1974)
Where patient calls his physician as a
witness to prove a matter which the physician would only have learned in the
course of his employment, this constitutes a waiver as to related privileged
communications. State ex rel Juv. Dept. v. Brown, 19 Or App 427, 528 P2d 569
(1974),
In an action for wrongful death, defendant
may not ask for depositions of decedent’s physician if the physician has
submitted a written report of medical findings. Woosley v. Dunning, 268 Or 233,
520 P2d 340 (1974)
Once the patient has intentionally offered
or taken testimony of one doctor, either on trial or by deposition, the
privilege is terminated for all purposes relating to the injury or illness
which was the subject of that doctor’s testimony, including hospital records.
State ex rel Calley v. Olsen, 271 Or 369, 532 P2d 230 (1975)
The privilege is waived when a patient or
his personal representative takes the deposition of a treating doctor. State ex
rel Calley v. Olsen, 271 Or 369, 532 P2d 230 (1975)
The beneficiary of decedent’s life
insurance policy had authority to waive the privilege for purposes of an action
to enforce payment under the policy. State ex rel Calley v. Olsen, 271 Or 369,
532 P2d 230 (1975)
Privilege applies to psychiatric records
of parent in juvenile court proceeding to terminate parental rights. State ex
rel Juvenile Dept.,
Under
Evidence Code
Plaintiff’s voluntary act of deposing
defendant-treating physician whom he was suing in malpractice action
constituted waiver of plaintiff’s physician-patient privilege with respect to
other treating physicians concerning same condition. State ex rel Grimm v.
Ashmanskas, 298 Or 206, 690 P2d 1063 (1984)
Where person consults psychotherapist for
professional assistance and reasonably believes psychotherapist is willing to
establish professional relationship, fact that psychotherapist has ulterior
purpose for interview will not prevent person from claiming privilege. State v.
Miller, 300 Or 203, 709 P2d 225 (1985), cert. denied, 475
Secretary-receptionist responsible for
screening telephone calls to psychiatrist on duty at state hospital is included
in this privilege. State v. Miller, 300 Or 203, 709 P2d 225 (1985), cert.
denied, 475
Physician-patient privilege does not apply
in workers’ compensation contested case claim hearing. Booth v. Tektronix, 312
Or 463, 823 P2d 402 (1991)
Where psychotherapy treatment requires
defendant to prepare numerous written assignments, psychotherapist-patient
privilege applies to assignments. State v.
Defendant waived psychotherapist-patient
privilege when defendant voluntarily disclosed significant part of
psychotherapist-patient communications by submitting documents in earlier
trial. State v.
40.240
(Rule
504-2)
See also annotations under ORS
44.040 in permanent edition.
NOTES OF
DECISIONS
Under
former similar statute (ORS 44.040)
Where public health nurse became
acquainted with appellant through multi-faceted social service program and was
not engaged in furnishing nursing care to appellant, nurse’s testimony in
termination of parental rights action as to her observations and opinions
acquired during interviews and home visits with appellant was not covered by
privilege of this section. State ex rel Juvenile Dept. v. Banker, 47 Or App
1125, 615 P2d 1168 (1980),
Correction: The permanent edition
citation for Nielson v. Bryson
should be 257 Or 179, 477 P2d 714 (1970).
LAW REVIEW
CITATIONS
Under
former similar statute (ORS 44.040)
11 WLJ 329 (1975); 55 OLR 459-473 (1976)
40.255
(Rule 505)
See also annotations under ORS
44.040 in permanent edition.
NOTES OF
DECISIONS
Under
former similar statute (ORS 44.040)
A bigamous or otherwise void marriage does
not support a claim of marital privilege. State v. Kelsey, 28 Or App 255, 558 P2d 1299 (1977)
The marital privilege is available in probation
revocation proceedings. State v. Schier, 47 Or App
1075, 615 P2d 1147 (1980)
A party does not waive marital privilege
when privileged subject is opened for first time on cross-examination. State v.
Schier, 47 Or App 1075, 615 P2d 1147 (1980)
Under
Evidence Code
Invocation of spousal privilege in front
of jury is inherently prejudicial; privilege was violated where spouse
repeatedly asserted it in front of jury and was ordered to testify anyway.
State v. Quintero, 110 Or App 247, 823 P2d 981 (1991),
For purposes of exception to spousal
privilege, whether “offense” or “attempted offense” is against person or
property of spouse depends on specific conduct that resulted in defendant being
charged, not crime with which defendant is charged. State v. Jansen, 198 Or App 260, 108 P3d 92 (2005)
40.260
(Rule 506)
NOTES OF
DECISIONS
Trial court committed harmful error in
admitting defendant’s confession to Mormon minister in trial for first degree
rape, because communication was protected under clergy-penitent privilege.
State v. Cox, 87 Or App 443, 742 P2d 694 (1987)
LAW REVIEW
CITATIONS: 76 OLR 173 (1997); 85 OLR 481 (2006)
40.265
(Rule
508a)
See annotations under ORS 44.030 in
permanent edition.
40.270
(Rule 509)
See annotations under ORS 44.040 in
permanent edition.
40.275
(Rule 510)
NOTES OF
DECISIONS
Trial court properly denied defendant’s
motion to disclose identity of alleged confidential informant under this
provision, because person whose identity defendant sought was not unknown
informant but was eye witness whose identity state had no duty to disclose
because it did not intend to call person as witness. State v. Pena, 108 Or App
171, 813 P2d 1134 (1991),
Informant’s name may be disclosed, even
for in camera disclosure, only if trial court is not satisfied that information
was received from informer reasonably believed to be reliable or credible.
State v. Young, 108 Or App 196, 816 P2d 612 (1991),
Trial court may disclose identity of
informant only if informant provides evidence useful to defendant’s defense.
State v. Wood, 114 Or App 601, 836 P2d 176 (1992),
40.280
(Rule 511)
See also annotations under ORS
44.030 in permanent edition.
NOTES OF
DECISIONS
Under this rule defendant waived
psychotherapist-patient privilege when he called his former mother-in-law to
testify about an incident of alcohol-induced amnesia and, therefore, it was not
error for psychiatrist who had examined defendant at counsel’s request to
testify about defendant’s alcohol dependency and to state conclusion that
defendant nevertheless could have acted with conscious objective to commit the
acts at the time in question. State v. Corgain, 63 Or App 26, 663 P2d 773
(1983),
Father waived privilege of confidentiality
in psychological report by furnishing it to his expert in preparation for trial
and calling expert to testify about father’s mental condition. Boon and Boon,
100 Or App 354, 786 P2d 215 (1990)
In excess liability action, trial court
properly applied attorney client privilege to documents relating to assignment
agreement between insured and his assignees, depositions and file materials
related to underlying medical malpractice case and material in files of insured’s
attorney relating to excess liability action. Stumpf v. Continental Casualty
Co., 102 Or App 302, 794 P2d 1228 (1990)
Factors court may consider in determining
whether waiver has occurred include whether disclosure was inadvertent, whether
any attempt was promptly made to remedy error and whether preservation of
privilege will be unfair to proponent. GPL Treatment, Ltd. v. Louisiana-Pacific
Corp., 133 Or App 633, 894 P2d 470 (1995), aff’don other grounds, 323 Or
116, 914 P2d 682 (1996)
To prevent waiver of privilege during
perpetuation deposition, party must object to disputed testimony both at time
deposition is taken and at time offered at trial. State ex rel OHSU v. Haas,
325 Or 492, 942 P2d 261 (1997)
40.290
(Rule 513)
NOTES OF
DECISIONS
This Rule prohibits finder of fact in
civil action from drawing inference from assertion of claim of Fifth Amendment
privilege not to testify. John Deere Co. v. Epstein, 307 Or 348, 769 P2d 766
(1989)
40.310 to 40.335
NOTES OF
DECISIONS
Where
40.310
(Rule 601)
See also annotations under ORS
44.020 in permanent edition.
NOTES OF
DECISIONS
Under
former similar statute (ORS 44.020)
Testing of witness competency by
cross-examiner is properly limited to questions about past or present medical
treatment that relate specifically to witness ability to perceive, remember and
relate matters about which witness testified. State v. Longoria, 17 Or App 1,
520 P2d 912 (1974),
Under
Evidence Code
Because this rule, like statutory
predecessors, addresses only competency of witness, it does not make
inapplicable case law rule that, if child is otherwise competent, it is error
to refuse to permit child to testify. Nichols and Fleischman, 67 Or App 256, 677 P2d 731 (1984)
Where
Determination that four-year old victim
was competent to testify was matter committed to sound discretion of trial
court and discretion was not abused. State v. Bauman, 98 Or
App 316, 779 P2d 185 (1989)
40.315
(Rule 602)
See also annotations under ORS
44.060 in permanent edition.
NOTES OF
DECISIONS
Evidence that state may have used coercive
or unduly suggestive methods in questioning witness does not provide grounds
for court to hold pretrial hearing on reliability of witness’ statements and
testimony. State v. Bumgarner, 219 Or App 617, 184 P3d
1143 (2008)
40.320
(Rule 603)
See also annotations under ORS
44.330 in permanent edition.
NOTES OF
DECISIONS
Under
former similar statute (ORS 44.330)
Signing affidavit in presence of notary or
official authorized to administer oath is sufficient to constitute oath.
LAW REVIEW
CITATIONS
Under
Evidence Code
28 WLR 127 (1991)
40.330
(Rule 605)
See also annotations under ORS
44.050 in permanent edition.
NOTES OF
DECISIONS
Judge who presided at dissolution
proceeding between son and daughter-in-law of testator and who observed
demeanor of testator when she testified at trial was not precluded from later
testifying in will contest challenging mental capacity of testator. Larson v.
Naslund, 73 Or App 699, 700 P2d 276 (1985)
40.335
(Rule 606)
See annotations under ORS 44.050 in
permanent edition.
40.345
(Rule 607)
NOTES OF
DECISIONS
Where witness surprised prosecution by
testifying contrary to prior confession, and state, under this Rule, introduced
confession in order to impeach witness’ credibility, trial court did not err in
admitting confession where testimony was crucial to state’s case. State v.
Prohibition against calling witness for
primary purpose of eliciting impeachment testimony does not apply where
recanted statement constituting impeachment testimony is admissible on other
grounds. State v. Swett, 158 Or App 28, 972 P2d 909 (1999),
40.350
(Rule 608)
See also annotations under ORS
45.590, 45.600 and 45.620 in permanent edition.
NOTES OF
DECISIONS
Under
former similar statute (ORS 45.590)
General use of questions as to drug use
should not be allowed to impeach a witness, but may be used to discover if the
witness was under the influence of drugs at the time to which she is
testifying. State v. Goodin, 8 Or App 15, 492 P2d 287 (1971),
Party may not use prior inconsistent
statement to impeach own witness unless witness gives testimony prejudicial to
party. State v. Ward, 16 Or App 162, 517 P2d 1069
(1974)
This section does not prohibit a party
from impeaching a witness it has produced by showing bias or interest. State v.
Estlick, 269 Or 75, 523 P2d 1029 (1974)
Where party attempts to use prior
inconsistent statement to impeach own witness on collateral matter, and witness
denies making statement, party must accept answer of witness. State v. Jones,
279 Or 55, 566 P2d 867 (1977)
Defendant may not call state’s witness as
an adverse witness solely for the purpose of impeachment. State v. Hill, 32 Or App 299, 573 P2d 1273 (1978)
Party is allowed to introduce evidence
discreditable to witness where evidence is not introduced for purpose of
discrediting witness testimony. State v. Gilbert, 282 Or 309, 577 P2d 939
(1978)
Surprise is not prerequisite to
impeachment of own witness, but is factor in determining whether party has
suffered prejudice allowing impeachment. State v. Mills, 39 Or
App 85, 591 P2d 396 (1979)
Under
former similar statute (ORS 45.600)
An individual may be cross-examined about
specific acts of crime for the purpose of showing his bias without violating
this section. State v. Goodin, 8 Or App 15, 492 P2d 287 (1971),
Evidence obtained from an invalid search
which is inadmissible as direct evidence can not be used to impeach the
credibility of the defendant. State v. Spunaugle, 11 Or
App 583, 504 P2d 756 (1972)
Right to impeach adverse witness arises
from fact that witness has testified, regardless of length or content of
testimony. State v. Lawson, 53 Or App 232, 631 P2d 816
(1981)
Under
former similar statute (ORS 45.620)
State may buttress credibility of
accomplice-witness during case in chief since accomplice is impeached as matter
of law under [former] ORS 17.250 and [former] ORS 136.550. State v. Estlick, 14
Or App 288, 511 P2d 1250 (1973), aff’d 269 Or 75, 523 P2d 1029 (1974)
Testimony that merely contradicts
testimony of another witness is not attack on credibility of that witness.
State v. Allen, 276 Or 527, 555 P2d 443 (1976)
Under
Evidence Code
Evidence of specific instances of conduct
by defendant was admissible for purpose of contradicting direct testimony of
defendant on specific matter. State v. Schober, 67 Or
App 385, 678 P2d 746 (1984)
Expert testimony, made before victim
testified, that sex abuse victim was able to perceive and relate accurately a
sexual contact was not opinion as to whether victim would testify truthfully
and was admissible evidence relating to witness’ credibility. State v. Padilla,
74 Or App 676, 704 P2d 524 (1985)
Trial court did not err in forbidding
defendant to cross-examine victim about other alleged false accusations of
sexual abuse because this rule forbids any inquiry or cross-examination into
specific instances of conduct for impeachment purposes and specific instances
of conduct include false statements. State v. LeClair, 83 Or App 121, 730 P2d
609 (1986),
Assuming defendant’s wife was opining that
victim, as witness, was presently lying, such
testimony was not equivalent of testifying as to opinion of character of victim
for truthfulness. State v. Carr, 302 Or 20, 725 P2d 1287 (1986)
Psychotherapist may not render opinion on
credibility of witness. State v. Milbradt, 305 Or 621, 756 P2d 628 (1988);
State v. Remme, 173 Or App 546, 23 P3d 374 (2001)
Where this section forbids inquiry or
cross-examination into specific incidents of conduct in order to impeach, trial
court did not err when it excluded evidence that victim made allegedly false
accusations of sexual misconduct against another man. State v. Hendricks, 101
Or App 469, 791 P2d 139 (1990),
Police officer’s assessment of reliability
of information supplied by informant is inadmissible comment on informant’s
credibility. State v. Wyatt, 102 Or App 413, 794 P2d
1243 (1990); State v.
Statute limits admissibility of evidence
of other crimes, wrongs or acts to attack credibility of witness, but such
evidence may be introduced for other purposes. State v. Bolt, 108 Or App 746, 817 P2d 1322 (1991)
In personal injury action, defendant’s
statement to workers’ compensation official investigating accident that he did
not know plaintiff was not admissible to show that defendant putatively had
tendency to be untruthful. Mulvahill v. Huddleston, 110 Or
App 405, 822 P2d 754 (1991)
Trial court properly excluded psychiatrist’s
testimony that defendant told truth about not remembering stabbing. State v.
Wille, 115 Or App 47, 839 P2d 712 (1992), aff’d 317 Or 487, 858 P2d 128
(1993)
When witness had little recent personal
contact with victim or with people associated with victim, trial court did not
abuse its discretion by excluding opinion of witness. State v. Caffee, 116 Or
App 23, 840 P2d 720 (1992),
While one trial witness may not testify
about credibility of another trial witness, rule does not preclude admission of
relevant out-of-court statement phrased in form of opinion as to credibility of
another witness. State v. Odoms, 313 Or 76, 829 P2d 690 (1992)
Testimony or exhibit may not, explicitly
and directly, contain opinion as to trial witness’s credibility. State v.
Charboneau, 323 Or 38, 913 P2d 308 (1996); State v.
Once witness’s character for truthfulness
is attacked, ability to present evidence supporting truthfulness becomes
entitlement. State v. Reynolds, 324 Or 550, 931 P2d 94 (1997)
Where state attacks credibility of
defendant on rebuttal in reasonably unforeseen manner and credibility is
central to defense, denial of opportunity for surrebuttal is error. State v.
Wilkins, 175 Or App 569, 29 P3d 1144 (2001),
Confrontation Clause of Oregon
Constitution does not give defendant right to attack or support credibility of
complaining witness through extrinsic evidence. State v. Driver, 192 Or App
395, 86 P3d 53 (2004),
COMPLETED
CITATIONS (for ORS 45.590 in permanent edition): State v. Howard, 6 Or App 230,
486 P2d 1301 (1971),
40.355
(Rule 609)
See also annotations under ORS
45.600 in permanent edition.
NOTES OF
DECISIONS
Under
former similar statute (ORS 45.600)
Introduction of documents other than the
judgment order to show conviction of a crime was error because the extraneous
documents contained evidence of particular wrongful acts. State v. Akles, 9 Or App 501, 497 P2d 1207 (1972)
The prosecutor may ask a defense witness
the names of the crimes of which he has been convicted and the time and place
of conviction. State v. Longoria, 17 Or App 1, 520 P2d 912 (1974),
A juvenile witness may not be impeached by
evidence that he admitted acts which would be a crime if committed by an adult.
State v. Burr, 18 Or App 494, 525 P2d 1067 (1974)
Pendency of an appeal from a criminal
conviction does not bar use of the conviction for impeachment. State v. Forsyth,
20 Or App 624, 533 P2d 176 (1975),
The legislature intended by enacting this
section to depart from the common law by removing the disqualification of a
witness for a crime and by providing that a witness may be impeached by proof
of conviction of a crime. Smith v. Durant, 271 Or 643, 534 P2d 955 (1975)
“Crime” means any crime and includes both
felonies and misdemeanors. Smity v. Durant, 271 Or 643, 534 P2d 955 (1975)
Evidence of violations of municipal
ordinances the violation of which is punishable by incarceration is admissible
for impeachment purposes. State v. Bunse, 27 Or App
299, 555 P2d 1269 (1976)
The court has no discretion to deny
impeachment of a witness by proof of prior conviction, as distinguished from
prior arrest. State v. Bunse, 27 Or App 299, 555 P2d
1269 (1976)
Evidence of prior conviction was
admissible notwithstanding that pretrial negotiations statute (ORS 135.435)
making statements part of plea discussion inadmissible was applicable under
circumstances. State v. Aldridge, 33 Or App 37, 575
P2d 675 (1978)
Trial court did not err in permitting
prosecution to question defendant about prior conviction for crime which has
since been removed from Criminal Code and which occurred twelve years before
this trial. State v. Mack, 37 Or App 487, 587 P2d 516 (1978),
Under
Evidence Code
Under this section, admission of evidence
of prior burglary convictions was not error even though crimes were similar to
that charged and defendant’s testimony was important to fair determination of
issues presented. State v. Carden, 58 Or App 655, 650 P2d 97 (1982),
Trial court erred in failing to declare
mistrial where: 1) during defendant’s trial on charges of sexual abuse and
criminal trespass, prosecutor asked defendant whether he had been convicted of “strong
arm rape” in 1972; 2) trial court and prosecutor knew before trial prosecutor
did not have certified copy of any conviction; and 3) defendant had, in fact,
been convicted of contributing to sexual delinquency of a minor, a misdemeanor
not involving false statement and, therefore, not admissible to impeach. State
v. Jenkins, 63 Or App 858, 666 P2d 869 (1983)
Where Class C felony conviction is given
misdemeanor treatment by sentencing judge, it is still admissible under
paragraph (1)(a) of this rule for impeachment purposes
because it was punishable as felony. State v. Smith, 67 Or App 311, 677 P2d
715, aff’d 298 Or 173, 691 P2d 89 (1984)
Theft by taking is not a conviction involving
false statement within meaning of portion of this section allowing evidence of
prior conviction if crime involved false statement; to be admissible offense
must include element of consciously misleading true owner or failing to reveal
true ownership. State v. Reitz, 75 Or App 82, 705 P2d 762 (1985),
Trial court’s reliance on then newly
amended version of this rule did not subject defendant to ex post facto application of law in violation of his constitutional
rights, because amendments did not make defendant’s act greater crime or impose
greater punishment or permit conviction on lesser or different evidence. State
v. Carr, 91 Or App 673, 756 P2d 1263 (1988),
Amendment of this rule, deleting balancing
of probative value against prejudicial effect, makes ORS 40.160 (Rule 403)
balancing inapplicable as to prior conviction evidence. State v. Carr, 91 Or
App 673, 756 P2d 1263 (1988); State v. Babb, 91 Or App 676, 756 P2d 1264
(1988), Sup Ct review denied; State v. Dick, 91 Or App 294, 754 P2d 628
(1988), Sup Ct review denied; State v. King, 307 Or 332, 768 P2d 391
(1989); State v. Archer, 150 Or App 505, 947 P2d 620 (1997)
Theft in second degree is crime involving
dishonesty. State v. Gallant, 307 Or 152, 764 P2d 920 (1988)
Where defendant filed motion for mistrial,
did not request limiting instruction and none was given, reference to prior
victim and her age by prosecutor was not sufficiently prejudicial to require
mistrial. State v. Schwab, 95 Or App 593, 771 P2d 277
(1989)
This rule is applicable in civil cases.
Boger v. Norris & Stevens, Inc., 109 Or App 90, 818 P2d 947 (1991),
Where existence of prior conviction was
established for impeachment purposes, court erred in preventing disclosure to
jury of actual offense committed. State v. Venegas, 124 Or App 253, 862 P2d 529
(1993),
To bring constitutional challenge,
defendant must demonstrate how operation of this rule prevented or diminished
constitutional protections. State v. Busby, 315 Or 292, 844 P2d 897 (1993)
Trial courts should rule on admissibility
of prior crime impeachment evidence as soon as possible after issue is raised.
State v. Busby, 315 Or 292, 844 P2d 897 (1993)
Trial court may exclude evidence of prior
convictions offered to impeach if it is needless presentation of cumulative
evidence, distinguishing State v. King, 307 Or 332, 768 P2d 391 (1989).
State v. Pratt, 316 Or 561, 853 P2d 827 (1993)
Exception for municipal or justice court
convictions was eliminated under 1986 amendment notwithstanding that ballot
measure did not indicate text deletion. State v. Linn, 131 Or App 487, 885 P2d
721 (1994),
COMPLETED
CITATIONS (for ORS 45.600 in permanent edition): State v. Howard, 6 Or App 230,
486 P2d 1301 (1971),
LAW REVIEW
CITATIONS
Under
former similar statute (ORS 45.600)
54 OLR 431-442 (1975)
Under
Evidence Code
28 WLR 127 (1991)
40.360
(Rule
609-1)
NOTES OF
DECISIONS
Where defense sought to examine police
officer concerning his knowledge of standard police department procedures
employed against officers who use unnecessary force, failure to permit this
testimony was reversible error where purpose of examination was to test officer
for bias and corruption. State v. Hubbard, 61 Or App 350, 657 P2d 707 (1983), aff’d
297 Or 789, 688 P2d 1311 (1984)
Condition in plea agreement that witness
testify truthfully was inadmissible because irrelevant to showing lack of bias
or interest. State v. Eby, 296 Or 63, 673 P2d 522 (1983)
Where evidence of bias, that does not
consist of conduct or statements of witness, is not subject to foundation
requirements of this section, court erred by not allowing plaintiff to
introduce evidence that major witness for defendants was employed by one of
them. James v. General Motors of Canada, Ltd., 101 Or App 138, 790 P2d 8
(1990),
Statute limits admissibility of evidence of
other crimes, wrongs or acts to attack credibility of witness, but such
evidence may be introduced for other purposes. State v. Bolt, 108 Or App 746, 817 P2d 1322 (1991)
When defendant had basis for asserting
that witness made deal with police, trial court erred by not allowing defendant
to ask witness in offer of proof about arrest record. State v. Rodriguez, 115 Or App 281, 840 P2d 711 (1992)
LAW REVIEW
CITATIONS: 28 WLR 127 (1991)
40.365
(Rule 610)
NOTES OF
DECISIONS
Prohibition is not limited to examination
regarding particular religious tenets. State v.
Inquiry is not permissible to re-establish
credibility where veracity of witness has been placed in issue. State v.
40.370
(Rule 611)
See also annotations under ORS
45.530, 45.550, 45.560 and 45.570 in permanent edition.
NOTES OF
DECISIONS
Under
former similar statute (ORS 45.530)
Where proffered testimony was relevant and
material to issues in case, and only one other witness had testified as to such
issue, proffered evidence was not cumulative and its exclusion was improper.
Northwestern Mutual Insurance Company v. Peterson, 280 Or 773, 572 P2d 1023
(1977)
Under
Evidence Code
Discretion of trial judge to control scope
of cross-examination does not allow exclusion of evidence offered to impeach
witness for bias or interest. State v. Hubbard, 297 Or 789, 688 P2d 1311 (1984)
Where, on direct examination, defendant’s
witness had testified that money bags appeared to contain money, on
cross-examination prosecutor could ask witness what defendant had said at that
time because question was relevant to witness’ knowledge of matter about which
he had testified on direct examination and answer was admissible for that
purpose. State v. Hart, 84 Or App 160, 733 P2d 469
(1987)
Court of Appeals could not address
propriety of limiting cross-examination in trial court, because defendant made
no offer of proof and failed to raise issue at trial. State v. Affeld, 307 Or
125, 764 P2d 220 (1988)
In absence of ruling that evidence in
dissolution action was or would be irrelevant or redundant, it was error for
trial court to summarily end trial and deny husband opportunity to complete his
cross-examination and presentation of his case in chief. Howell-Hooyman and
Hooyman, 113 Or App 548, 833 P2d 328 (1992)
COMPLETED
CITATIONS (for ORS 45.570 in permanent edition): State v. Williams, 6 Or App
189, 487 P2d 100 (1971),
40.375
(Rule 612)
See annotations under ORS 45.580 in
permanent edition.
40.380
(Rule 613)
See also annotations under ORS
45.610 and 45.630 in permanent edition.
NOTES OF
DECISIONS
Under
former similar statute (ORS 45.610)
Prior consistent statement of witness
impeached by prior inconsistent statements was admissible where peculiar
circumstances indicated relevance. State v. Knoke, 14 Or
App 187, 512 P2d 1353 (1973)
Under
former similar statute (ORS 45.630)
A foundation must be laid before a witness
can be impeached by an offer of evidence that the witness has engaged in
conduct showing bias or interest. State v. Dowell, 274 Or 547, 547 P2d 619
(1976)
Under
Evidence Code
Trial court did not err when it excluded
testimony of person who allegedly heard victim’s mother say that victim was “pathological
liar” because mother had already testified that, although she now believed
victim was telling truth, she had previously thought him to be untruthful.
State v. Shearer, 101 Or App 543, 792 P2d 1215 (1990),
COMPLETED
CITATIONS (for ORS 45.610 in permanent edition): State v. Obremski, 5 Or App
302, 483 P2d 467 (1971),
LAW REVIEW
CITATIONS
Under
Evidence Code
19 WLR 395 (1983); 28 WLR 127 (1991)
40.385
(Rule 615)
See also annotations under ORS
45.510 in permanent edition.
NOTES OF
DECISIONS
Under
former similar statute (ORS 45.510)
When one party moves to exclude witnesses
and the other party voices no objection the motion should always be granted.
State v. Bishop, 7 Or App 558, 492 P2d 509 (1971)
When the motion is opposed, the witnesses
should be excluded unless there are sufficient reasons relevant to the purpose
of the trial for not excluding witnesses. State v. Bishop, 7 Or
App 558, 492 P2d 509 (1971)
Defendant is not prejudiced by failure to
exclude witness if testimony of witness is totally unrelated to testimony of
prior witnesses. State v. Roberts, 47 Or App 323, 614
P2d 139 (1980)
Under
Evidence Code
A violation of an exclusion order is not,
of itself, sufficient to disqualify a defense witness in a criminal case and
the trial court cannot exclude the testimony based upon this ground alone.
State v. Burdge, 295 Or 1, 664 P2d 1076 (1983)
Where overlapping testimony of two
witnesses did not concern contested issues, failure to exclude witnesses was
harmless error. State v. Cetto, 66 Or App 337, 674 P2d 66 (1984),
Failure to make motion until after
testimony has started is not good cause for denying motion. State v. Cetto, 66
Or App 337, 674 P2d 66 (1984),
Refusal to strike testimony of defendant’s
experts as sanction for defendant’s revealing daily transcripts to experts in
violation of order excluding witnesses was within court’s discretion. Siegfried
v. Pacific Northwest Development Corp., 102 Or App 57,
793 P2d 330 (1990)
Allowing investigating officer to remain
in courtroom after trial court determined that state had established that
officer’s presence was essential to prosecution under this section did not
violate defendant’s right to cross-examine and to confront witness against him
under Article I, section 11 of the Oregon Constitution. State v. Alexander, 105
Or App 566, 805 P2d 743 (1991)
Plaintiff who is unable to comprehend,
meaningfully participate in proceedings, or assist lawyer in presentation of
case may be excluded from liability portion of bifurcated trial if court
determines plaintiff’s presence would be unfairly prejudicial. Bremner v.
Charles, 312 Or 274, 821 P2d 1080 (1991)
Assertion that fiance of murder victim
lived with victim did not alone qualify fiance as victim of criminal case not
subject to exclusion. State v. Stookey, 119 Or App 487, 850 P2d 1167 (1993),
City police officer who investigates and
files state criminal charge is equivalent of state officer for purpose of
exemption from exclusion. State v. Cooper, 319 Or 162, 874 P2d 822 (1994); 130
Or App 209, 880 P2d 514 (1994),
Erroneous denial of motion does not create
presumption of prejudice to defendant upon judicial review. State v. Larson,
139 Or App 294, 911 P2d 953 (1996), aff’d 325 Or 15, 933 P2d 958 (1997)
Corporation is entitled to only one
corporate representative at pretrial deposition of corporate witnesses.
Washington County Assessor v. West Beaverton Congregation of Jehovah’s
Witnesses, Inc., 18 OTR 226 (2005)
Corporation may not designate different
corporate representative for separate depositions of corporate witnesses.
Washington County Assessor v. West Beaverton Congregation of Jehovah’s
Witnesses, Inc., 18 OTR 226 (2005)
Exclusion of corporate witness from
deposition of corporate representative requires that deposing party comply with
court rules related to filing of protective order. Washington County Assessor
v. West Beaverton Congregation of Jehovah’s Witnesses, Inc., 18 OTR 226 (2005)
40.405
(Rule 701)
NOTES OF
DECISIONS
Witness’s statement that stain observed on
defendant’s kitchen floor was fecal material was admissible because rationally
based on his work experience and helpful in determination of a fact in issue,
namely, whether child was strangled in defendant’s apartment. State v. Lerch,
63 Or App 707, 666 P2d 840 (1983), aff’d 296 Or 377, 677 P2d 678 (1984)
Although opinion testimony by lay witness
must be based on personal perceptions, while expert witness may testify from
facts made known at or before the hearing, lay witness and expert witness may
testify as to the same subject matter. State v. Lerch, 296 Or 377, 677 P2d 678
(1984)
Where statement is admissible as admission
of adverse party, opinion rule is inapplicable and trial court erred in
excluding defendant’s statement.
While one trial witness may not testify
about credibility of another trial witness, rule does not preclude admission of
relevant out-of-court statement phrased in form of opinion as to credibility of
another witness. State v. Odoms, 313 Or 76, 829 P2d 690 (1992)
Witness’s inference may be rationally
drawn notwithstanding that perceptions from which inference is drawn are
susceptible to more than one plausible interpretation and would support more
than one reasonable inference. State v. Barnes, 208 Or
App 640, 145 P3d 261 (2006)
LAW REVIEW
CITATIONS: 19 WLR 421 (1983)
40.410
(Rule
702)
NOTES OF
DECISIONS
Guidelines for determining relevance or
probative value of proffered scientific evidence are: 1) general acceptance in
field; 2) expert’s qualifications and stature; 3) use made; 4) potential for
error; 5) existence of specialized literature; 6) novelty; and 7) reliance on
subjective interpretation. State v. Brown, 297 Or 404, 687 P2d 751 (1984)
Expert testimony that merely tells jury
what legal conclusion to reach is not admissible under this rule. French v.
Barrett, 84 Or App 52, 733 P2d 89 (1987)
Expert testimony concerning standards of
good faith dealing among joint venturers is admissible under this section if it
will assist jury in determining whether defendants’ actions fulfilled their
duty of “loyalty and fair dealing.” Commerce Mortgage Co. v. Industrial Park
Co., 101 Or App 345, 790 P2d 16 (1990), as modified by 102 Or App 284,
793 P2d 894 (1990),
Error in admitting testimony of police
officer, not qualified as expert, regarding speed of vehicles involved in
collision, was harmless in light of other evidence. Hays v. Huard, 108 Or App 289, 814 P2d 559 (1991)
Police officer, qualified as expert, could
testify based on reconstruction as to speed of vehicle involved in collision
although he was not eyewitness to accident. DeFries v. Post, 108 Or App 298, 815 P2d 224 (1991)
Fact that psychologist lacked license
affects weight given opinion rather than admissibility.
Medical doctor was not precluded from
testifying that child was sexually abused as medical diagnosis simply because
jury might infer from that testimony that another witness was telling the
truth. State v.
Forensic DNA testing has sufficient
scientific reliability to be helpful to trier of fact in matters of
identification. State v. Futch, 123 Or App 176, 860 P2d 264 (1993), aff’d
324 Or 297, 924 P2d 832 (1996)
Where expert did not comment directly on
credibility of defendants, testimony of expert that changing explanation for
child’s injuries was typical child abuser behavior was permissible. State v.
Butterfield, 128 Or App 1, 874 P2d 1339 (1994),
Evidence that has potential to influence
trier of fact as scientific evidence must be reviewed by court for scientific
validity and pertinence. State v. O’Key, 321 Or 285, 899 P2d 663 (1995)
Validity and pertinence of scientific
evidence must be evaluated by court in light of: 1) whether theory or technique
can be and has been tested; 2) whether theory or technique has been subject to
peer review and publication; 3) known or potential rate of error; and 4) degree
of acceptance in relevant scientific communities. State v. O’Key, 321 Or 285,
899 P2d 663 (1995)
Expert witness on medical subject need not
be person licensed to practice medicine. Cunningham v.
Lack of real estate appraiser license does
not prevent person having sufficient knowledge, skill or experience from
presenting testimony giving comparative market analysis. Yager and Yager, 155
Or App 407, 963 P2d 137 (1998),
Testimony based on personal observation or
specialized knowledge of professional and offered for purpose unrelated to
establishing conformance with scientific principle is not scientific evidence
requiring establishment of foundation. State v.
Scientific evidence forming basis for
expert opinion may consist of physician case reports employing scientific
methodology.
Physician’s diagnosis that patient is
suffering from particular condition is subject to foundational requirements for
scientific evidence. State v. Sanchez-Cruz, 177 Or App 332, 33 P3d 1037 (2001),
LAW REVIEW
CITATIONS: 71 OLR 93, 349 (1992)
40.415
(Rule
703)
NOTES OF
DECISIONS
OEC 703 does not permit state’s expert
witness on direct examination to reveal to the jury results of excludable blood
test in prosecution for driving under the influence of intoxicants. State v.
Knepper, 62 Or App 623, 61 P2d 560 (1983)
Where no witness testified about seeing
defendant wearing jacket in co-defendant’s vehicle when victim was killed and
facts were made known to expert witness through prosecutor’s hypothetical
question, evidence was sufficient to support finding to that effect. State v.
Nefstad, 309 Or 523, 789 P2d 1326 (1990)
Error in admitting testimony of police
officer, not qualified as expert, regarding speed of vehicles involved in
collision, was harmless in light of other evidence. Hays v. Huard, 108 Or App 289, 814 P2d 559 (1991)
Police officer, qualified as expert, could
testify based on reconstruction as to speed of vehicle involved in collision
although he was not eyewitness to accident. DeFries v. Post 108 Or App 298, 815 P2d 224 (1991)
In forming opinion about why event
happened, expert witness may consider testimony of participant in event that
describes what happened. Bray v. Pfeifer, 112 Or App 375, 829 P2d 730 (1992),
LAW REVIEW
CITATIONS: 19 WLR 423 (1983); 27 WLR 27 (1991)
40.420
(Rule
704)
NOTES OF DECISIONS
Although 1981 Evidence Code liberalizes
admissibility of expert opinion, it does not allow opinion as to who should
win, and witness should not have been permitted to give opinion as to whether
or not defendants were negligent. Phomvongsa v. Phounsaveth, 72 Or App 518, 696
P2d 567 (1985),
Expert testimony which merely tells jury
what legal conclusion to reach is not admissible under this rule. French v.
Barrett, 84 Or App 52, 733 P2d 89 (1987)
Court did not err by permitting expert to
testify on ultimate questions of amount of damages. Becker v. Port Dock Four,
Inc., 90 Or App 384, 752 P2d 1235 (1988)
Though it was not abuse of discretion to
admit evidence of accident reconstruction, court erred in admitting expert
testimony that particular sign was substantial factor in causing accident and
was inadmissible “pure opinion” on legal consequence of disputed facts which
did not assist jury but instead told it to reach particular result on contested
causation question. DeRosa v. Kolb, 90 Or App 548, 752 P2d 1282 (1988),
LAW REVIEW
CITATIONS: 19 WLR 425 (1983)
40.425
(Rule
705)
NOTES OF
DECISIONS
Technician’s certification attesting to
accuracy of intoxilyzer machine bears those indicia of reliability traditionally
associated with public records and is admissible for that reason and thus this
Rule was relevant, if at all, only to extent that despite certificate’s
reliability defendant chose to cross-examine technician-expert. State v. Bigej,
77 Or App 18, 711 P2d 189 (1985),
Trial court erred in excluding evidence of
Intoxilyzer test when person who administered test was not available to testify
as defendant did not have right to cross-examine that person and it was
sufficient that state offered testimony of person who had observed test, was
licensed to administer test and could testify from personal knowledge whether
test administration procedures were followed. State v. McCormack, 92 Or App 84,
756 P2d 1281 (1988),
LAW REVIEW
CITATIONS: 19 WLR 425 (1983); 27 WLR 27 (1991)
40.450
(Rule
801)
See also annotations under ORS
41.900 in permanent edition.
NOTES OF
DECISIONS
Under
former similar statute (ORS 41.900)
Exclusion of co-conspirator’s statement
from use against defendant at trial applies to statements not directly
implicating defendant. State v. Capitan, 8 Or App 582, 494 P2d 443 (1972),
Declarations of co-conspirator were
properly admitted against defendant under this section as relating to
conspiracy to commit murder where: 1) statements were made while co-conspirator
was in process of concealing and later attempting to sell fruits of robbery
which co-conspirator and defendant had conspired to commit; 2) conspiracy to
rob was continuing since the stolen property had not been disposed of; and 3)
possibility of murder was foreseeable result of conspiracy to rob. State v.
Garrison, 16 Or App 588, 519 P2d 1295 (1974),
Duration of conspiracy is limited to those
acts directly related to substantive crime. State v.
Where testimony of coconspirator was
sufficient to establish existence of conspiracy of which defendant was part,
timing of evidence was within discretion of trial court. State v. Curran, 38 Or
App 351, 590 P2d 268 (1979),
In prosecution for alleged conspiracy to
wreck defendant’s boat so defendant could collect on loss from his insurance
company, note written by alleged coconspirator was admissible, not for truth of
contents of note, but as foundation for statements made by defendant in
response to learning of note. State v. Hattersley, 56 Or App 265, 641 P2d 634
(1982), aff’d 294 Or 592, 660 P2d 674 (1983)
Statements of co-conspirator are
admissible as long as they are “related to” conspiracy. State v. Pottle, 62 Or
App 545, 662 P2d 351 (1983), aff’d on other grounds, 296 Or 274, 671 P2d
1 (1984)
Under
Evidence Code
Where witness testified that he received
letter from defendant containing thinly veiled threat concerning witness
testifying at defendant’s trial, witness’s statements were admissible. State v.
Reece, 56 Or App 169, 641 P2d 1141 (1982)
Trial court’s admission of investigating
officer’s hearsay testimony concerning plaintiff’s statements at accident
scene, if error, was harmless where plaintiff later
testified to the same effect and where there was “aroma” in the evidence that
plaintiff’s version of events was recent fabrication. Livestock Transportation
v. Ashbaugh, 64 Or App 7, 666 P2d 1356 (1983),
Out-of-court statement concerning details
of rape, made before motive to testify falsely arose, is admissible as prior
consistent statement following impeachment by prior inconsistent statement.
State v. Middleton, 294 Or 427, 657 P2d 1215 (1983)
To have adopted hearsay statement of third
person, circumstances must indicate that party used statement in such a way as
to indicate approval of or agreement with it. State v. Severson, 298 Or 652,
696 P2d 521 (1985)
Testimony of Children’s Services Division
worker concerning what victim of sexual abuse told her was admissible as prior
consistent statement under this section to rebut defendant’s impeachment of
victim by allegedly inconsistent statements and implied charge of recent
fabrication. State v. Resendez, 82 Or App 259, 728 P2d 562 (1986),
In action for securities law violations,
where plaintiff presented sufficient evidence for jury to find that defendant
either controlled seller of stock within meaning of ORS 59.115 or that
defendant sold stock in violation of ORS 59.115 through his agent, court did
not err in admitting testimony of purported agent’s statements regarding
defendant’s knowledge and approval of stock sale. Wicks v. O’Connell, 89 Or App 236, 748 P2d 551 (1988)
Officer’s opinion as to credibility of
witnesses who might testify contrary to officer did not constitute charge of
recent fabrication and prior consistent statements of plaintiff were thus
erroneously admitted, but error was not prejudicial. Powers v. Officer Cheeley,
307 Or 585, 771 P2d 622 (1989)
Where statement is admissible as admission
of adverse party, opinion rule is inapplicable and trial court erred in
excluding defendant’s statement.
For statements attributed to
co-conspirator to be admitted under this section, state must show foundational
requirements by preponderance of evidence. State v. Cornell, 109 Or App 396,
820 P2d 11 (1991), aff’d 314 Or 673, 842 P2d 394 (1992)
Conspiracy continues until its objective
has been achieved or abandoned and, where defendant and co-conspirator were
arrested before they had disposed of stolen property, statements made by
co-conspirator up to time of arrests were admissible. State v. Cornell, 109 Or
App 396, 820 P2d 11 (1991), aff’d 314 Or 673, 842 P2d 394 (1992)
Determination as to whether party intended
to adopt, agree with or approve of contents of statement of another is
preliminary question of fact for trial judge under OEC 104(1). State v.
Carlson, 311 Or 201, 808 P2d 1002 (1991)
Grand jury proceedings are other
proceedings under this section and grand jury testimony is admissible as prior
inconsistent statement, even if proceedings are not transcribed. State v.
Dickerson, 112 Or App 51, 827 P2d 1354 (1992),
Party could introduce results of polygraph
test taken by spouse for purpose of showing that response of party upon learning
polygraph results was reasonable. Fromdahl and Fromdahl, 314 Or 496, 840 P2d
683 (1992)
Videotape of reporter’s statement
attributing allegedly defamatory statement to defendant was hearsay not within
any exception to rule. Hickey v. Settlemier, 318 Or 196, 864 P2d 372 (1993)
Statement by husband to wife regarding
existence of conspiracy was admissible as being in furtherance of conspiracy
since court could find statement either bolstered husband’s resolve to engage
in plan, was given to obtain wife’s assent or was attempt to draw wife into
scheme. State v. Harris, 126 Or App 516, 869 P2d 868 (1994), as modified by
127 Or App 613, 872 P2d 445 (1994),
Where state seeks to interfere with
parent-child relationship through termination or dependency proceeding,
interests of child are adverse to state. State ex rel Juvenile Dept. v. Cowens,
143 Or App 68, 922 P2d 1258 (1996),
Where one party asserts
that other party failed to previously report fact that would normally be
reported if occurring, implied charge of “recent fabrication” exists.
Keys v. Nadel, 325 Or 324, 937 P2d 521 (1997)
Where witness lacks memory of events
previously testified to, court has discretion to treat lack of memory as
inconsistency and to allow prior testimony as substantive evidence of events.
State v. Staley, 165 Or App 395, 995 P2d 1217 (2000)
Statement by agent or servant is
admissible only if scope of agency is established through proof of job title or
responsibilities. Andrews v. R.W. Hays Co., 166 Or App
494, 998 P2d 774 (2000)
Machine-generated information regarding
speed of vehicle is not statement issued by declarant. State v. Weber, 172 Or App 704, 19 P3d 378 (2001)
Whether court has jurisdiction over charge
of conspiracy is irrelevant for purposes of determining whether statement was
made by coconspirator of party. State v. Ervin, 193 Or
App 41, 88 P3d 296 (2004)
Where action states multiple claims for
relief, statement by person who is party to one claim for relief is not
admissible in claim for relief to which person is not party. Phillips v.
Rathbone, 194 Or App 90, 93 P3d 835 (2004)
Where defendant is not active participant
in conversation, mere listening presence during conversation is insufficient to
manifest intent by criminal defendant to adopt statement made during
conversation. State v.
COMPLETED
CITATIONS (for ORS 41.900 in permanent edition): State v. O’Brien, 6 Or App 34,
485 P2d 434, 486 P2d 592 (1971), aff’d262 Or 30, 496 P2d 191 (1972)
40.455
(Rule
802)
NOTES OF
DECISIONS
“Otherwise provided by law” refers to
constitutional and statutory sources of law but not to common law. State v.
Rodriguez-Castillo, 210 Or App 479, 151 P3d 931 (2007),
40.460
(Rule
803)
See also annotations under ORS
41.670, 41.680, 41.690, 41.840, 41.870 and 41.900 in permanent edition.
NOTES OF
DECISIONS
Under
former similar statutes
Records of regularly conducted activity
(ORS 41.690)
This section vests considerable discretion
in trial judge concerning admissibility. Stanfield v. Laccoarce, 284 Or 651,
588 P2d 1271 (1978)
Whether routinely prepared record is made
within regular course of business depends on whether circumstances under which
record is made furnish sufficient checks against misstatement to invest record
with some badge of truthfulness. Lepire v. Motor Vehicles Div., 47 Or App 67, 613 P2d 1084 (1980)
Excited utterance (ORS 41.870)
Declarations of rape victim identifying
her attacker that were made more than hour after attack were admissible under “spontaneous
exclamation” exception to hearsay rule. State v.
Victim’s initial communication with
police, consisting of five-minute telephone conversation, was “spontaneous
exclamation” within exception to hearsay rule. State v. Jones, 27 Or App 767,
557 P2d 264 (1976),
Under
Evidence Code
In general
This Rule permits officer who testifies in
criminal trial to read relevant parts of his report into record when he has
insufficient present recollection to testify fully and accurately. State v.
Scally, 92 Or App 149, 758 P2d 365 (1988)
Hearsay statement may not be admitted over
Confrontation Clause objection unless prosecution produces declarant or
demonstrates unavailability of declarant. State v. Wilcox, 180 Or App 557, 43
P3d 1182 (2002),
Hearsay statement does not violate
confrontation right where declarant is unavailable or is available, actually
present and ready to testify. State v. Crain, 182 Or
App 446, 50 P3d 1206 (2002)
Excited utterance
Out-of-court statements made by four-year
old child describing sexual assaults that might have occurred as much as 30
days earlier were not properly admissible as “excited utterance” exception to
hearsay rule. State v.
Statements made by four-year old victim to
her mother about alleged sexual attack were made within short period of time
with no intervening opportunity for outside influence and therefore it was not
error to admit them as excited utterances. State v. Mace, 67 Or App 753, 681
P2d 140 (1984),
Where victim of sexual misconduct is
incompetent to testify because of age, unexcited hearsay declarations of sexual
misconduct are admissible through exception to rule against hearsay. State v.
Harris, 78 Or App 490, 712 P2d 242 (1986)
Statements to 911 dispatcher and
statements made to responding police officer qualified as excited utterances.
State v. Wolfs, 119 Or App 262, 850 P2d 1139 (1993),
Statement is related to startling event if
subject of statement would likely be evoked by event. State v. Stonaker, 149 Or
App 728, 945 P2d 573 (1997),
Admission of hearsay statement consisting
of excited utterance is not exempt from state constitutional requirement that
declarant be unavailable. State v.
Hearsay statement is admissible based on
declarant unavailability only if state is unable to produce declarant as
witness. State v.
Appellate review of trial court’s findings
regarding circumstances of statement is for supporting evidence in record, but
appellate review of trial court’s legal conclusion that statement is or is not
excited utterance uses error of law standard. State v. Cunningham, 337 Or 528,
99 P3d 271 (2004)
Statements of state of mind
Statements by murder victim to friends
that indicated that victim did not like defendant were admissible to show that
victim did not voluntarily have sexual intercourse with defendant even though
statement suggested something about conduct of defendant. State v. Engweiler,
118 Or App 132, 846 P2d 1163 (1993),
Statement regarding intent of declarant to
engage in action is not evidence of likely action by another person. Holmes v.
Morgan, 135 Or App 617, 899 P2d 738 (1995),
Statement that merely reflects or that
reasonably supports inference regarding declarant’s state of mind constitutes
assertion of declarant’s state of mind. State v. Clegg, 332 Or 432, 31 P3d 408
(2001)
Statements made for purposes of medical
diagnosis or treatment
When it is shown that physician reasonably
relied on child-victim’s identification of her abuser as member of her family
in diagnosing and treating victim, physician’s testimony about victim’s
identification of her abuser is admissible. State v. Vosika, 83 Or App 298, 731 P2d 449 (1987)
Testimony of two physicians, including
victim’s identification of defendant as person who had sexually abused her, was
admissible as statement for medical diagnosis or treatment because physician
would reasonably rely on statements and record supports finding that victim
understood she was being interviewed and examined for diagnosis and treatment.
State v. Newby, 97 Or App 598, 777 P2d 994 (1989),
Where patient’s statements to physician
about defendant’s presence in her home, his abusive conduct, and her resulting
fears communicated to physician ongoing cause of patient’s situational depression
and were used to diagnose and treat patient’s illness, statements were
admissible under this section. State v. Moen, 309 Or 45, 786 P2d 111 (1990)
Statements made by child victim to
physician and to physician’s assistant about sexual abuse by defendant were
admissible as statements made for purposes of medical diagnosis or treatment,
even though reason victim was taken to physician was for possible diagnosis of
sexual abuse. State v. Logan, 105 Or App 556, 806 P2d 137 (1991); State v.
Barkley, 108 Or App 756, 817 P2d 1328 (1991), aff’d 315 Or 420, 846 P2d
390 (1993); State ex rel Juv. Dept. v. Jackson, 122 Or App 389, 858 P2d 158
(1993), Sup Ct review denied
Videotaped interview of child victim of
sexual abuse was admissible because interview was for purpose of diagnosing
child’s condition and prescribing treatment. State v. Verley, 106 Or App 751,
809 P2d 723 (1991), Sup Ct review denied; State v. Barkley, 108 Or App
756, 817 P2d 1328 (1991), aff’d 315 Or 420, 846 P2d 390 (1993); State ex
rel Juv. Dept. v. Cornett, 121 Or App 264, 855 P2d 171 (1993)
Admissibility of videotape depends on
admissibility of statements contained in it. State v. Verley, 106 Or App 751,
809 P2d 723 (1991),
Identification statement made by five-year
old child to physician during medical examination is admissible in prosecution
for sexual abuse of child. State v. Alvarez, 110 Or App 230, 822 P2d 1207
(1991),
Testimony by nurse who questioned child
about cause of child’s severe burns was admissible as statement for medical
diagnosis or treatment because child made statements for purpose of medical
diagnosis by nurse. State v. Jensen, 313 Or 587, 837 P2d 525 (1992)
Statements made by medical expert
concerning medical diagnosis or treatment of child abuse, although supporting
child’s testimony, are admissible and are not direct comment on child’s
credibility. State v.
Videotape of child’s interview with
personnel at hospital-based child abuse evaluation center was admissible
because child’s statements to interviewer met all three requirements of hearsay
exception for statements made for purposes of medical diagnosis or treatment.
State v.
Whether child is old enough to understand
that questions are part of medical exam is based on circumstances, not
chronological age of child. State v. Booth, 124 Or App 282, 862 P2d 518 (1993),
Where statement meets requirements of
exception, statement may originate with person other than declarant or person
being diagnosed or treated. State ex rel Juvenile Dept. v. Pfaff, 164 Or App
470, 994 P2d 147 (1999),
Public records
Certificates of breathalyzer inspections
are admissible under public records exception to hearsay rule. State v. Smith,
66 Or App 703, 675 P2d 510 (1984)
Admissibility of Intoxilyzer
certifications as public records exception to hearsay rule does not violate
constitutional right to confrontation of witnesses. State v.
Public records exception for certified
copy of document does not apply to original document newly created by data
retrieval from Law Enforcement Data System and attested to by person performing
retrieval. State v. Barber, 209 Or App 604, 149 P3d 260 (2006),
Investigative reports
“Factual findings” resulting from
investigation pursuant to law are limited to reports based upon personal
knowledge of investigator or upon verifiable fact rather than opinion. Sleigh
v. Jenny Craig Weight Loss Centres, Inc., 161 Or App 262, 984 P2d 891 (1999), modified
163 Or App 20, 988 P2d 916 (1999)
Complaint of sexual misconduct
Testimony of mother recounting statement
made by three-year-old victim to mother about sexual attacks by defendant were
admissible as exception to hearsay rule allowing complaint of sexual misconduct
by prosecuting witnesses; it is unnecessary for child victim to testify as
precondition for admission of child’s complaint of sexual misconduct. State v.
Out of court statement by unavailable
child concerning abuse of another child was not within scope of exception.
State v. Hill, 129 Or App 180, 877 P2d 1230 (1994)
For purposes of requirement that proponent
make intention to offer hearsay statement known to adverse party no later than
15 days before trial, trial begins on scheduled trial date unless postponement
has been granted. State v. Iverson, 185 Or App 9, 57 P3d 953 (2002),
Statements “concerning” abuse include
victim’s whole expression of abuse and how victim related that expression to
others. State v.
Statement made by special victim of
sexual conduct
Intention of legislature under this rule
is that defendant not be convicted on hearsay alone.
State v. Renly, 111 Or App 453, 827 P2d 1345 (1992)
Statement by unavailable declarant is not
admissible unless additional evidence corroborates statement. State v. Renly,
111 Or App 453, 827 P2d 1345 (1992)
Victim recantation of prior statements
does not render otherwise competent victim unable to communicate or testify in
court. State v. Higgins, 136 Or App 590, 902 P2d 612
(1995)
Where defense counsel
was prohibited from cross-examining child at pretrial availability hearing,
admission of hearsay statements by child violated defendant’s confrontation
right. State v. Kitzman, 323 Or 589, 920 P2d 134 (1996)
Where victim testifies and is available
for cross-examination, “child” means unmarried person under
18 years of age. State v. Lamb, 161 Or App 66, 983 P2d
1058 (1999)
As prerequisite to admitting hearsay
statement by unavailable declarant, court must: 1) determine that statement is
circumstantially reliable; 2) determine whether independent admissible or
nonadmissible corroborating evidence supports admission of statement; and 3)
make explicit findings as to evidence relied upon for corroboration. State v.
Reed, 173 Or App 185, 21 P3d 137 (2001),
Where there are
multiple hearsay statements by declarant, corroborative evidence need not bear
directly or distinctly on particular statement. State v. Reed, 173 Or App 185,
21 P3d 137 (2001),
“Good cause” for failure to give timely
notice of intent to use statement refers to circumstances that cause
prosecution to be unable to comply with notice requirement. State v. McKinzie,
186 Or App 384, 63 P3d 1214 (2003),
Inclusion of statement in discovery
provided to defendant does not satisfy requirement that prosecution provide
timely notice of intent to present statement at trial. State v. McKinzie, 186
Or App 384, 63 P3d 1214 (2003),
Where victim utters statement concerning
act of abuse to interpreter, translated statement uttered by interpreter is
hearsay requiring independent basis for admissibility. State v.
Rodriguez-Castillo, 210 Or App 479, 151 P3d 931 (2007),
Domestic violence
Other evidence presented at trial that
corroborates truth of hearsay statement cannot be used to show statement itself
has particularized guarantees of trustworthiness. State v. Wilcox, 180 Or App
557, 43 P3d 1182 (2002),
Residual exceptions
Spontaneous statements made by
four-year-old child while she was still suffering pain from sexual assault were
made under circumstances guaranteeing trustworthiness and were, therefore,
admissible under this exception to hearsay rule. State v.
Exception embodied in this section is to
be used rarely and only in situations where interest of justice requires. Star
Rentals v. Seeberg Constr., 83 Or App 44, 730 P2d 573
(1986)
Exception for document retrieved from Law
Enforcement Data System and attested to by person performing retrieval applies
only to document newly created by retrieval, not to certified copies. State v.
Barber, 209 Or App 604, 149 P3d 260 (2006),
COMPLETED
CITATIONS (for ORS 41.900 in permanent edition): State v. O’Brien, 6 Or App 34,
485 P2d 434, 486 P2d 592 (1971), aff’d262 Or 30, 496 P2d 191 (1972)
LAW REVIEW
CITATIONS
Under
Evidence Code
22 WLR 421 (1986); 26 WLR 402, 406, 423
(1990); 37 WLR 299 (2001); 82 OLR 1125 (2003)
40.465
(Rule
804)
See also annotations under ORS
41.830, 41.840, 41.850, 41.860, 41.870, 41.890 and 41.900 in permanent edition.
NOTES OF
DECISIONS
Under
former similar statutes
Statement made in professional capacity
(ORS 41.860)
Records made in professional capacity in
ordinary course of professional conduct were admissible even though they
included statements of opinion. Williams v. Laurence-David, Inc., 271 Or 712,
534 P2d 173 (1975)
Court does not have discretion regarding
admissibility of record qualifying under exception for records of professional.
Williams v. Laurence-David, Inc., 271 Or 712, 534 P2d 173 (1975)
Former testimony (ORS 41.900)
Where absent witness is
party to action, admission of former testimony requires showing of
necessity that witness cannot personally appear. Rogers v. Donovan, 268 Or 24,
518 P2d 1306 (1974)
In criminal trial, testimony given by
absent declarant as witness at another hearing is not admissible unless
prosecution has made substantial effort to procure attendance of declarant.
State v. Smyth, 286 Or 293, 593 P2d 1166 (1979)
Under
Evidence Code
Where prosecution’s key witness invoked
Fifth Amendment privilege and refused to testify in retrial, testimony at first
trial was admissible against defendant; witness was “unavailable” through no
fault of prosecutor though plea agreement between witness and prosecutor only
required witness’ testimony at first trial, not at subsequent retrials. State
v. Brooks, 64 Or App 404, 668 P2d 466 (1983),
Paragraph (3)(f),
the residual exception, is available only if evidence is not admissible under
any other exception; where eight year old child testified that she did not
remember telling psychologist or case worker about sexual contact with
respondent, testimony of psychologist and case worker narrating in detail
substance of child’s complaint to them was not admissible because of specific
hearsay exception for evidence of complaint of sexual misconduct under ORS
40.460 (Rule 803). State ex rel Children’s Services Division v. Page, 66 Or App
535, 674 P2d 1196 (1984)
Where dying victim was unable to speak,
evidence was sufficient for trial court to conclude that victim understood
questions of sheriff’s department officer and was able to communicate by
employing hand signal system used between officer and victim. State v.
Holterman, 69 Or App 509, 687 P2d 1097 (1984),
In prosecution for sexual assault of
child, victim’s statements to her mother were admissible hearsay under residual
exception, paragraph (3)(f), where declarant was
incompetent to testify and statements were made in circumstances guaranteeing
trustworthiness. State v. Bounds, 71 Or App 744, 694 P2d 566 (1984),
Where defendant was charged with assault,
victim testified that she could not remember any physical contact between
herself and defendant and police officer testified about statements victim had
made to him, statements were not admissible under residual exceptions to hearsay
rule because they lacked sufficient guarantee of trustworthiness. State v.
Apperson, 85 Or App 429, 736 P2d 1026 (1987)
Where defendant availed self of
opportunity to cross-examine witness at preliminary hearing and motives for
development of testimony at hearing were similar to that at trial and witness
was “unavailable” within meaning of this section, trial court did not err in
admitting in evidence testimony at preliminary hearing of witness who was
absent from trial. State v.
Where nothing in text of ORS 40.460 limits
rule’s application to prior testimony given in same criminal prosecution and
rule does not require mutuality of parties, transcripts from criminal
prosecutions in another state based upon different criminal conduct were
admissible. State v. Moen, 309 Or 45, 786 P2d 111 (1990)
Where defendant had opportunity at
security release hearing and motive to develop testimony similar to motive at
trial, witnesses’ testimony during security release hearing was admissible at
defendant’s trial. State v.
Wife’s out-of-court statement that she had
seen defendant driving and thought he was intoxicated was not admissible under
hearsay exception for statements against pecuniary interest. State v. Lyman,
107 Or App 390, 812 P2d 23 (1991)
Trial court did not err in admitting
uncorroborated hearsay evidence of confession since corroboration is required
only of exculpatory statements. State v. Tucker, 109 Or App 519, 820 P2d 834
(1991),
Trial court properly ruled that witness
was not available to testify where there was testimony that witness had no
long-term memory to speak of, was unable to travel because of physical and mental
health and hospital records reflected moderate impairment of gross memory
abilities. State v. Pinnell, 311 Or 98, 806 P2d 110 (1991)
Where prosecutor informed trial court that
state had prepared “transport order” from state prison for potential witness
and defendant offered no evidence witness would testify to lack of memory or
claim privilege against self-incrimination, defendant failed to show that
witness was “unavailable” for purpose of introducing witness’ statements under
this section. State v. Thoma, 313 Or 268, 834 P2d 1020 (1992)
Deposition testimony of witness
unavailable to subpoena is admissible under ORS 45.250 without showing that
offering party sought voluntary return of witness per this section. Hansen v.
Abrasive Engineering and Manufacturing, 317 Or 378, 856 P2d 625 (1993)
Refusal of witness to testify based on
Fifth Amendment right against self-incrimination did not mean that witness’s
prior out-of-court statements on same matter were statements against penal
interest. State v. Jacob, 125 Or App 643, 866 P2d 507 (1994),
Unavailability of witness must be
established by means sanctioned by law for introduction of judicial evidence.
State v. Ordonez-Villanueva, 138 Or App 236, 908 P2d 333 (1995),
In determining that statement against
penal interest by hearsay declarant had sufficient indicia of reliability to be
admissible, factors considered were: 1) whether declarant was pressured to make
statement; 2) timing of statement; 3) to whom statement
was addressed; 4) purpose of making statement; and 5) statement content. State
v.
In determining whether statement by
hearsay declarant is admissible as statement against penal interest, statement
must be prima facie inculpatory and
circumstantially reliable. State v. Jones, 171 Or App 375, 15 P3d 616 (2000),
On de
novo review, hearsay testimony to which no objection was made at trial may
be considered by reviewing court for any weight testimony may have. Petersen v.
Circumstances indicating “trustworthiness”
of statement against penal interest means both circumstances indicating
statement was actually made and circumstances indicating truth of statement.
State v. Lytsell, 187 Or App 169, 67 P3d 955 (2003)
40.475
(Rule
806)
NOTES OF
DECISIONS
State may use prior convictions to impeach
hearsay statement of nontestifying criminal defendant. State v. Dishman, 148 Or App 404, 939 P2d 1172 (1997)
Party does not waive hearsay objection by
presenting countering evidence. McCathern v. Toyota Motor Corp., 332 Or 59, 23
P3d 320 (2001)
40.505
(Rule
901)
See also annotations under ORS
42.060 and 42.070 in permanent edition.
NOTES OF
DECISIONS
Authentication is receipt of conditionally
relevant evidence, not preliminary determination of admissibility. State v.
Park, 140 Or App 507, 916 P2d 334 (1996),
LAW REVIEW
CITATIONS: 19 WLR 428 (1983)
40.510
(Rule
902)
See also annotations under ORS
43.310, 43.330, 43.340, 43.350, 43.360 and 43.370 in permanent edition.
NOTES OF
DECISIONS
Under
former similar statute (ORS 43.330)
Handwritten signature of certifying
officer was not required, and photocopy whereby original document and statement
of certification, including signature, were reproduced as single page was
sufficient. State v. Pingelton, 31 Or App 241, 570 P2d 666 (1977),
Under
former similar statute (ORS 43.370)
Entries in certified printout from Motor
Vehicles Division computer which indicated that order suspending defendant’s
driver license was still in effect when defendant was cited for driving while
suspended were properly admitted under this section. State v.
Certifying official’s summary of contents
of public record is not admissible as entry in official record. State v.
Harris, 288 Or 703, 609 P2d 798 (1980)
Under
Evidence Code
Because court could not discern whether
document contained seal, documents were inadmissible under this rule. State v.
Mueller, 96 Or App 185, 772 P2d 433 (1989)
LAW REVIEW
CITATIONS
Under
Evidence Code
19 WLR 435 (1983)
40.515
(Rule
903)
LAW REVIEW
CITATIONS: 19 WLR 439 (1983)
40.550 to 40.585
NOTES OF
DECISIONS
Where testimony by appellant and appellant’s
son clearly and convincingly establishes that appellant had been involuntarily
committed twice in past three years, original commitment order is not required
by “best evidence rule.” State v. Brungard, 101 Or App 67, 789 P2d 683 (1990), as
modified by 102 Or App 509, 789 P2d 683 (1990)
40.550
(Rule
1001)
See annotations under ORS 41.060 in
permanent edition.
40.555
(Rule
1002)
See also annotations under ORS
41.610 and 41.640 in permanent edition.
LAW REVIEW
CITATIONS: 19 WLR 440 (1983)
40.560
(Rule
1003)
See also annotations under ORS
41.640 and 41.720 in permanent edition.
NOTES OF
DECISIONS
Where only part of item is duplicated, “original”
means part of item duplicated rather than entire item. State v. Nelsen, 219 Or App 443, 183 P3d 219 (2008)
LAW REVIEW
CITATIONS: 19 WLR 440 (1983)
40.565
(Rule
1004)
See also annotations under ORS
41.640 in permanent edition.
LAW REVIEW
CITATIONS: 19 WLR 443 (1983)
40.570
(Rule
1005)
NOTES OF
DECISIONS
Under
former similar statute (ORS 43.330)
Signature certifying documents need not be
original handwritten signature. State v. Pingelton, 31 Or App 241, 570 P2d 666
(1977),
40.575
(Rule
1006)
See also annotations under ORS
41.640 in permanent edition.
LAW REVIEW
CITATIONS: 19 WLR 444 (1983)
40.580
(Rule
1007)
LAW REVIEW
CITATIONS: 19 WLR 445 (1983)
40.585
(Rule
1008)
LAW REVIEW
CITATIONS: 19 WLR 446 (1983)