Chapter
41
1999
EDITION
Evidence
Generally
41.010 Judicial evidence; proof
41.110 Satisfactory evidence
41.270 Proof of usage
41.415 Photograph of victim in prosecution for
criminal homicide
41.500 “Secondary evidence” defined for ORS
41.500 to 41.580
41.510 Indispensable evidence
41.520 Evidence to prove a will
41.530 Evidence of representations as to third
persons
41.560 Grant or assignment of trust
41.570 Contracts and communications made by
telegraph
41.580 Statute of frauds
41.660 Admissibility of objects cognizable by
the senses
41.675 Inadmissibility of certain data provided
to peer review body of health care providers and health care groups
41.685 Inadmissibility of certain data relating
to emergency medical services system
41.740 Parol evidence rule
41.815 Evidence of compliance with or attempt to
comply with ORCP 32 I; when admissible
41.905 Admissibility of certain traffic offense
procedures in subsequent civil action
41.910 Certain intercepted communications
inadmissible; exception; motion to suppress
41.930 Admissibility of copies of original
records
41.945 Application of ORS 41.930 and ORCP 55 H
CROSS-REFERENCES
41.560
Trusts
concerning interest in real property; creation, transfer or declaration, 93.020
41.580
Creation,
transfer or declaration of estate in real property, 93.020
Grubstaking
contracts, need for writing, 517.110
Motor
vehicle retail installment contracts, need for writing, 83.520
Sales
of lands acquired by county by foreclosure of delinquent tax lien, 275.190,
275.210
41.675
Data
on dentists, 679.300
Hospital
records, access, 179.495, 179.505
Records
of developmentally disabled or mentally ill individuals, 192.517
41.910
Interception
of communications, definitions, 133.721
41.010
Judicial evidence; proof. Judicial evidence is the means,
sanctioned by law, of ascertaining in a judicial proceeding the truth
respecting a question of fact. Proof is the effect of evidence, the
establishment of the fact by evidence.
41.020
[Repealed by 1981 c.892 s.98]
41.030
[Repealed by 1981 c.892 s.98]
41.040
[Repealed by 1981 c.892 s.98]
41.050
[Repealed by 1981 c.892 s.98]
41.060
[Repealed by 1981 c.892 s.98]
41.070
[Repealed by 1981 c.892 s.98]
41.080
[Repealed by 1981 c.892 s.98]
41.090
[Repealed by 1981 c.892 s.98]
41.100
[Repealed by 1981 c.892 s.98]
41.110
Satisfactory evidence. Satisfactory evidence is that
which ordinarily produces moral certainty or conviction in an unprejudiced
mind. It alone will justify a verdict. Evidence less than this is insufficient
evidence.
41.120
[Repealed by 1981 c.892 s.98]
41.130
[Repealed by 1981 c.892 s.98]
41.140
[Repealed by 1981 c.892 s.98]
41.150
[Repealed by 1981 c.892 s.98]
41.210
[Repealed by 1981 c.892 s.98]
41.220
[Repealed by 1981 c.892 s.98]
41.230
[Repealed by 1981 c.892 s.98]
41.240
[Repealed by 1981 c.892 s.98]
41.250
[Repealed by 1981 c.892 s.98]
41.260
[Repealed by 1981 c.892 s.98]
41.270
Proof of usage. (1) Usage shall be proved by the
testimony of at least two witnesses.
(2) Evidence may be given of usage to
explain the true character of an act, contract or instrument when such true
character is not otherwise plain, but usage is never admissible except as a
means of interpretation. [Amended by 1981 c.892 s.86]
41.280
[Repealed by 1981 c.892 s.98]
41.310
[Repealed by 1981 c.892 s.98]
41.315
[1987 c.774 ss.1,2; repealed by 1995 c.688 s.6]
41.320
[Repealed by 1981 c.892 s.98]
41.330
[Repealed by 1981 c.892 s.98]
41.340
[Repealed by 1981 c.892 s.98]
41.350
[Amended by 1971 c.127 s.1; repealed by 1981 c.892 s.98]
41.360
[Amended by 1957 c.679 s.1; 1961 c.726 s.399; repealed by 1981 c.892 s.98]
41.410
[Repealed by 1981 c.892 s.98]
41.415
Photograph of victim in prosecution for criminal homicide.
In a prosecution for any criminal homicide, a photograph of the victim while
alive shall be admissible evidence when offered by the district attorney to
show the general appearance and condition of the victim while alive. [1987 c.2
s.8]
41.420
[Repealed by 1981 c.892 s.98]
41.430
[Repealed by 1981 c.892 s.98]
41.440
[Repealed by 1981 c.892 s.98]
41.450
[Repealed by 1981 c.892 s.98]
41.460
[Repealed by 1981 c.892 s.98]
41.470
[Repealed by 1981 c.892 s.98]
41.480
[Repealed by 1981 c.892 s.98]
41.500
“Secondary evidence” defined for ORS 41.500 to 41.580.
As used in ORS 41.500 to 41.580, “secondary evidence” means a copy, or oral
evidence, of an original writing or object. [1981 c.892 s.81]
41.510
Indispensable evidence. Certain evidence is necessary to
the validity of particular acts or the proof of particular facts.
41.520
Evidence to prove a will. Evidence of a will shall be the
written instrument itself, or secondary evidence of the contents of the will,
in the cases prescribed by law. [Amended by 1969 c.591 s.271]
41.530
Evidence of representations as to third persons.
No evidence is admissible to charge a person upon a representation as to the
credit, skill or character of a third person, unless the representation, or
some memorandum thereof, be in writing, and either subscribed by or in the
handwriting of the party to be charged.
41.540
[Repealed by 1977 c.479 s.1]
41.550
[Repealed by 1961 c.726 s.427]
41.560
Grant or assignment of trust. Every grant
or assignment of any existing trust in lands, tenements, hereditaments, goods
or things in action is void, unless it is in writing and subscribed by the
party making it or by the lawfully authorized agent of the party.
41.570
Contracts and communications made by telegraph.
Contracts made by telegraph shall be held to be in writing; and all
communications sent by telegraph, and signed by the sender, or by the authority
of the sender, shall be held to be in writing.
41.580
Statute of frauds. (1) In the following cases the
agreement is void unless it, or some note or memorandum thereof, expressing the
consideration, is in writing and subscribed by the party to be charged, or by
the lawfully authorized agent of the party; evidence, therefore, of the
agreement shall not be received other than the writing, or secondary evidence
of its contents in the cases prescribed by law:
(a) An agreement that by its terms is not
to be performed within a year from the making.
(b) An agreement to answer for the debt,
default or miscarriage of another.
(c) An agreement by an executor or
administrator to pay the debts of the testator or intestate out of the estate
of the executor or administrator.
(d) An agreement made upon consideration
of marriage, other than a mutual promise to marry.
(e) An agreement for the leasing for a
longer period than one year, or for the sale of real property, or of any
interest therein.
(f) An agreement concerning real property
made by an agent of the party sought to be charged unless the authority of the
agent is in writing.
(g) An agreement authorizing or employing
an agent or broker to sell or purchase real estate for a compensation or
commission; but if the note or memorandum of the agreement is in writing and
subscribed by the party to be charged, or by the lawfully authorized agent of
the party, and contains a description of the property sufficient for
identification, and authorizes or employs the agent or broker to sell the
property, and expresses with reasonable certainty the amount of the commission
or compensation to be paid, the agreement shall not be void for failure to
state a consideration.
(h) An agreement, promise or commitment to
lend money, to otherwise extend credit, to forbear with respect to the
repayment of any debt payable in money, to modify or amend the terms under
which the person has lent money or otherwise extended credit, to release any
guarantor or cosigner or to make any other financial accommodation pertaining
to an existing debt or other extension of credit. This paragraph does not
apply:
(A) If no party to the agreement, promise
or commitment is a financial institution as defined in ORS 706.008, a consumer
finance company licensed under ORS chapter 725 or a mortgage banker as defined
in ORS 59.840;
(B) To a loan of money or extension of
credit to a natural person which is primarily for personal, family or household
purposes and not for business or agricultural purposes or which is secured
solely by residential property consisting of one to four dwelling units, one of
which is the primary residence of the debtor; or
(C) To any transaction involving the use
of a credit card, charge card or similar device.
(2)(a) Except as provided in this section,
all defenses and exceptions to subsection (1)(a) to (g) of this section created
by any provision of the Oregon Revised Statutes or recognized by the courts of
this state shall also apply to subsection (1)(h) of this section.
(b) An agreement, promise or commitment
which does not satisfy the requirements of subsection (1)(h) of this section,
but which is valid in other respects, is enforceable if the party against whom
enforcement is sought admits in the party's pleading, testimony or otherwise in
court that the agreement, promise or commitment was made. The agreement is not
enforceable under this paragraph beyond the dollar amount admitted.
(c) Nothing in subsection (1)(h) of this
section precludes a party from seeking to prove the waiver of any term relating
to the time of repayment.
(3)(a) If a financial institution as
defined in ORS 706.008, a consumer finance company licensed under ORS chapter
725 or a mortgage banker as defined in ORS 59.840 lends money or extends
credit, and subsection (1)(h) of this section applies to the loan or extension
of credit, the financial institution, consumer finance company or mortgage
banker shall, not later than the time the loan or extension of credit is
initially made, include within the loan or credit document, or within a
separate document which identifies the loan or extension of credit, a statement
which is underlined or in at least 10-point bold type and which is
substantially to the following effect:
___________________________________________________________________
“Under Oregon law, most agreements,
promises and commitments made by us after October 3, 1989, concerning loans and
other credit extensions which are not for personal, family or household
purposes or secured solely by the borrower's residence must be in writing,
express consideration and be signed by us to be enforceable.”
___________________________________________________________________
(b) The financial institution, consumer
finance company or mortgage banker shall obtain the borrower's signature on the
original document described in paragraph (a) of this subsection and shall give
the borrower a copy.
(c) Not later than October 3, 1989, each
financial institution, consumer finance company or mortgage banker shall
develop and implement a program reasonably designed to inform existing and
potential commercial borrowers of the provisions of subsection (1)(h) of this
section. Each program shall at a minimum include making available to existing
and potential commercial borrowers, on a continuing basis for a period ending
not sooner than three years after October 3, 1989, a brochure or other written
material containing the statement required by paragraph (a) of this subsection.
The statement shall be underlined or be in at least 10-point bold type.
(d) Each financial institution, consumer
finance company and mortgage banker shall make available the brochure or material
described in paragraph (c) of this subsection at each branch, office or other
location from which it makes loans or other extensions of credit to which
subsection (1)(h) of this section applies. If a financial institution, consumer
finance company or mortgage banker complies with this paragraph and paragraph
(c) of this subsection, the financial institution, consumer finance company or
mortgage banker shall not be precluded from enforcing subsection (1)(h) of this
section because any particular existing or potential commercial borrower did
not receive the brochure or material. [Amended by 1989 c.967 ss.1,19; 1993
c.508 s.39; 1997 c.631 s.373]
41.590
[Repealed by 1961 c.726 s.427]
41.610
[Repealed by 1981 c.892 s.98]
41.615
[1959 c.353 ss.1,3 (subsection (2) enacted in lieu of 41.630); 1973 c.231 s.1;
repealed by 1977 c.358 s.1 (41.616 enacted in lieu of 41.615)]
41.616
[1977 c.358 s.2 (enacted in lieu of 41.615); repealed by 1979 c.284 s.199]
41.617
[1977 c.358 s.3; repealed by 1979 c.284 s.199]
41.618
[1977 c.358 s.4; repealed by 1979 c.284 s.199]
41.620
[Repealed by 1979 c.284 s.199]
41.622
[1977 c.744 s.2; repealed by 1979 c.284 s.199]
41.625
[1959 c.349 s.1; repealed by 1977 c.240 s.1; (41.626 enacted in lieu of
41.625)]
41.626
[1977 c.240 s.2 (enacted in lieu of 41.625); repealed by 1979 c.284 s.199]
41.630
[Repealed by 1959 c.353 s.2 (subsection (2) of 41.615 enacted in lieu of
41.630)]
41.631
[1977 c.240 s.4; repealed by 1979 c.284 s.199]
41.635
[1977 c.240 s.3 and 1977 c.358 s.5; repealed by 1979 c.284 s.199]
41.640
[Repealed by 1981 c.892 s.98]
41.650
[Repealed by 1981 c.892 s.98]
41.660
Admissibility of objects cognizable by the senses.
Whenever an object, cognizable by the senses, has such a relation to the fact
in dispute as to afford reasonable grounds of belief respecting it, or to make
an item in the sum of the evidence, the object may be exhibited to the jury, or
its existence, situation and character may be proved by witnesses. The
exhibition of the object to the jury shall be regulated by the sound discretion
of the court.
41.670
[Repealed by 1981 c.892 s.98]
41.675
Inadmissibility of certain data provided to peer review body of health care
providers and health care groups. (1) As used
in this section, “peer review body” includes tissue committees, governing
bodies or committees including medical staff committees of a health care
facility licensed under ORS chapter 441, medical staff committees of the
Department of Corrections and similar committees of professional societies, a
health care service contractor as defined in ORS 750.005, an emergency medical
service provider as defined in ORS 41.685 or any other medical group or
provider of medical services in connection with bona fide medical research, quality
assurance, utilization review, credentialing, education, training, supervision
or discipline of physicians or other health care providers or in connection
with the grant, denial, restriction or termination of clinical privileges at a
health care facility. “Peer review body” also includes utilization review and
peer review organizations.
(2) As used in subsection (3) of this
section, “data” means all oral communications or written reports to a peer
review body, and all notes or records created by or at the direction of a peer
review body, including the communications, reports, notes or records created in
the course of an investigation undertaken at the direction of a peer review
body.
(3) All data shall be privileged and shall
not be admissible in evidence in any judicial, administrative, arbitration or
mediation proceeding. This section shall not affect the admissibility in
evidence of records dealing with a patient's care and treatment, other than
data or information obtained through service on, or as an agent for, a peer
review body.
(4) A person serving on or communicating
information to any peer review body or person conducting an investigation
described in subsection (1) of this section shall not be examined as to any
communication to or from, or the findings of, that peer review body or person.
(5) A person serving on or communicating
information to any peer review body or person conducting an investigation
described in subsection (1) of this section shall not be subject to an action
for civil damages for affirmative actions taken or statements made in good
faith.
(6) Subsection (3) of this section shall
not apply to proceedings in which a health care practitioner contests the
denial, restriction or termination of clinical privileges by a health care
facility or the denial, restriction or termination of membership in a
professional society or any other health care group. However, any data
disclosed in those proceedings shall not be admissible in any other judicial,
administrative, arbitration or mediation proceeding. [1963 c.181 s.1; 1971
c.412 s.1; 1975 c.796 s.11; 1977 c.448 s.9; 1981 c.806 s.1; 1991 c.225 s.1;
1995 c.485 s.1; 1997 c.791 s.6; 1997 c.792 ss.29,29a]
41.680
[Repealed by 1981 c.892 s.98]
41.685
Inadmissibility of certain data relating to emergency medical services system.
(1) All data shall be privileged and are not public records as defined in ORS
192.410 and shall not be admissible in evidence in any judicial proceeding
except as provided under ORS 676.175. However, nothing in this section affects
the admissibility in evidence of a party's medical records dealing with a
party's medical care.
(2) On request, an emergency medical
service provider shall submit data not subject to ORS 676.175 to any committee
or governing body of the county, counties or state as provided for by state or
county administrative rule.
(3) A person serving on or communicating
information to any governing body or committee shall not be examined as to any
communication to that body or committee or the findings thereof.
(4) A person serving on or communicating
information to any governing body or committee shall not be subject to an
action for civil damages for affirmative actions taken or statements made in
good faith.
(5) As used in this section:
(a) “Committee or governing body” means
any committee or governing body that has authority to undertake an evaluation
of an emergency medical services system as part of a quality assurance program
and includes any committee of an emergency medical service provider undertaking
a quality assurance program.
(b) “Data” means all oral communications
or written reports, notes or records provided to, or prepared by or for, a
committee or governing body that are part of an evaluation of an emergency
medical services system and includes any information submitted by any health
care provider relating to training, supervision, performance evaluation or
professional competency.
(c) “Emergency medical service provider”
means any public, private or volunteer entity providing prehospital functions
and services that are required to prepare for and respond to medical
emergencies including rescue, ambulance, treatment, communication and
evaluation.
(d) “Emergency medical services system”
means those prehospital functions and services that are required to prepare for
and respond to medical emergencies, including rescue, ambulance, treatment,
communication and evaluation. [1989 c.1079 s.1; 1997 c.791 s.7; 1997 c.792
s.30]
41.690
[Repealed by 1981 c.892 s.98]
41.700
[Repealed by 1981 c.892 s.98]
41.710
[Repealed by 1981 c.892 s.98]
41.720
[Repealed by 1981 c.892 s.98]
41.730
[Repealed by 1981 c.892 s.98]
41.740
Parol evidence rule. When the terms of an agreement
have been reduced to writing by the parties, it is to be considered as
containing all those terms, and therefore there can be, between the parties and
their representatives or successors in interest, no evidence of the terms of
the agreement, other than the contents of the writing, except where a mistake
or imperfection of the writing is put in issue by the pleadings or where the
validity of the agreement is the fact in dispute. However this section does not
exclude other evidence of the circumstances under which the agreement was made,
or to which it relates, as defined in ORS 42.220, or to explain an ambiguity,
intrinsic or extrinsic, or to establish illegality or fraud. The term
“agreement” includes deeds and wills as well as contracts between parties.
41.810
[Repealed by 1981 c.892 s.98]
41.815
Evidence of compliance with or attempt to comply with ORCP 32 I; when
admissible. Attempts to comply with the provisions
of ORCP 32 I by a person receiving a demand shall be construed to be an offer
to compromise and shall be inadmissible as evidence. Such attempts to comply
with a demand shall not be considered an admission of engaging in the act or
practice alleged to be unlawful nor of the unlawfulness of that act. Evidence
of compliance or attempts to comply with the provisions of ORCP 32 I may be
introduced by a defendant for the purpose of establishing good faith or to show
compliance with the provisions of ORCP 32 I. [Formerly 13.310; 1981 c.912 s.3]
41.820
[Repealed by 1981 c.892 s.98]
41.830
[Repealed by 1981 c.892 s.98]
41.840
[Repealed by 1981 c.892 s.98]
41.850
[Repealed by 1981 c.892 s.98]
41.860
[Repealed by 1981 c.892 s.98]
41.870
[Repealed by 1981 c.892 s.98]
41.880
[Repealed by 1981 c.892 s.98]
41.890
[Repealed by 1981 c.892 s.98]
41.900
[Repealed by 1981 c.892 s.98]
41.905
Admissibility of certain traffic offense procedures in subsequent civil action.
(1) A judgment of conviction or acquittal of a person charged with a traffic
offense is not admissible in the trial of a subsequent civil action arising out
of the same accident or occurrence to prove or negate the facts upon which such
judgment was rendered.
(2) A plea of guilty by a person to a
traffic offense may be admitted as evidence in the trial of a subsequent civil
action arising out of the same accident or occurrence as an admission of the
person entering the plea, and for no other purpose.
(3) Evidence that a person has entered a
plea of no contest in the manner described in ORS 153.061 (2)(b) to a charge of
a traffic offense shall not be admitted as evidence in the trial of a subsequent
civil action arising out of the same accident or occurrence. [1975 c.542 s.1;
1981 c.892 s.87; 1999 c.1051 s.242]
41.910
Certain intercepted communications inadmissible; exception; motion to suppress.
(1) Evidence of the contents of any wire or oral communication intercepted:
(a) In violation of ORS 165.540 shall not
be admissible in any court of this state, except as evidence of unlawful
interception.
(b) Under ORS 165.540 (2)(a) shall not be
admissible in any court of this state unless:
(A) The communication was intercepted by a
public official in charge of and at a jail, police premises, sheriff's office,
Department of Corrections institution or other penal or correctional
institution; and
(B) The participant in the communication,
against whom the evidence is being offered, had actual notice that the
communication was being monitored or recorded.
(2) Evidence made inadmissible under this
section due to noncompliance by a law enforcement officer with the conditions
of ORS 165.540 (5)(a) shall only be inadmissible under this section pursuant to
a motion to suppress under ORS 133.736. [1955 c.675 s.6; 1959 c.681 s.5; 1979
c.716 s.12; 1983 c.824 s.4; 1993 c.178 s.1]
41.915
[1973 c.263 s.1; repealed by 1979 c.284 s.199]
41.920
[1973 c.263 s.2; repealed by 1979 c.284 s.199]
41.925
[1973 c.263 s.3; repealed by 1979 c.284 s.199]
41.930
Admissibility of copies of original records. The
copy of the records described in ORCP 55 H or ORS 136.447 is admissible in
evidence to the same extent as though the original thereof were offered and a
custodian of hospital records had been present and testified to the matters
stated in the affidavit. The affidavit is admissible as evidence of the matters
stated therein. The matters stated therein are presumed to be true. The
presumption established by this section is a presumption affecting the burden
of producing evidence. [1973 c.263 s.4; 1979 c.284 s.77; 1995 c.196 s.4]
41.935
[1973 c.263 s.5; repealed by 1979 c.284 s.199]
41.940
[1973 c.263 ss.6,7; repealed by 1979 c.284 s.199]
41.945
Application of ORS 41.930 and ORCP 55 H. ORS 41.930
and ORCP 55 H apply in any proceedings in which testimony may be compelled.
[1973 c.263 s.8; 1979 c.284 s.78]
41.950
[1971 c.331 s.1; renumbered 18.500]
41.960
[1971 c.331 s.2; renumbered 18.520]
41.970
[1971 c.331 s.3; renumbered 18.530]
41.980
[1971 c.331 s.4; repealed by 1981 c.892 s.98]
__________