OEC 100s Flashcards
ORS 40.010
Rule 100. Short Title
ORS 40.010 (Rule 100. Short title)to40.585 (Rule 1008. Functions of court and jury) and41.415 (Photograph of victim in prosecution for criminal homicide)shall be known and may be cited as the Oregon Evidence Code. [1981 c.892 §1]
ORS 40.015
Rule 101. Applicability of Oregon Evidence Code
(1) The Oregon Evidence Code applies to all courts in this state except for:
(a) A hearing or mediation before a magistrate of the Oregon Tax Court as provided by ORS 305.501 (Appeals to tax court to be heard by magistrate division);
(b) The small claims department of a circuit court as provided by ORS 46.415 (Circuit judges to sit in department); and
(c) The small claims department of a justice court as provided by ORS 55.080 (Formal pleadings unnecessary).
(2) The Oregon Evidence Code applies generally to civil actions, suits and proceedings, criminal actions and proceedings and to contempt proceedings except those in which the court may act summarily.
(3) ORS 40.225 (Rule 503. Lawyer-client privilege) to 40.295 (Rule 514. Effect on existing privileges) relating to privileges apply at all stages of all actions, suits and proceedings.
(4) ORS 40.010 (Rule 100. Short title) to 40.210 (Rule 412. Sex offense cases) and 40.310 (Rule 601. General rule of competency) to 40.585 (Rule 1008. Functions of court and jury) do not apply in the following situations:
(a) The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under ORS 40.030 (Rule 104. Preliminary questions).
(b) Proceedings before grand juries, except as required by ORS 132.320 (Consideration of evidence).
(c) Proceedings for extradition, except as required by ORS 133.743 (Definitions for ORS 133.743 to 133.857) to 133.857 (Payment of agent’s expenses).
(d) Sentencing proceedings, except proceedings under ORS 138.052 (Appeal from judgment of conviction and sentence of death) and 163.150 (Sentencing for aggravated murder), as required by ORS 137.090 (Considerations in determining aggravation or mitigation) or proceedings under ORS 136.765 (Notice to defendant) to 136.785 (Burden of proof).
(e) Proceedings to revoke probation, except as required by ORS 137.090 (Considerations in determining aggravation or mitigation).
(f) Proceedings conducted in a reentry court under section 29, chapter 649, Oregon Laws 2013.
(g) Issuance of warrants of arrest, bench warrants or search warrants.
(h) Proceedings under ORS chapter 135 relating to conditional release, security release, release on personal recognizance, or preliminary hearings, subject to ORS 135.173 (Oregon Evidence Code to apply in preliminary hearings).
(i) Proceedings to determine proper disposition of a child in accordance with ORS 419B.325 (Disposition required) (2) and 419C.400 (Conduct of hearings) (4).
(j) Proceedings under ORS 813.210 (Petition), 813.215 (Eligibility for diversion), 813.220 (Matters to be considered by court in determining to allow diversion agreement), 813.230 (Diversion agreement), 813.250 (Motion to dismiss charge on completion of diversion) and 813.255 (Termination of diversion) to determine whether a driving while under the influence of intoxicants diversion agreement should be allowed or terminated.
(k) Proceedings under ORS 147.530 (Hearing on claim, response or motion) relating to victims’ rights, except for the provisions of ORS 40.105 (Rule 305. Allocation of the burden of persuasion) and 40.115 (Rule 307. Allocation of the burden of producing evidence). [1981 c.892 §2; 1983 c.784 §1; 1985 c.16 §444; 1987 c.441 §10; 1993 c.18 §13; 1993 c.33 §289; 1995 c.531 §1; 1995 c.650 §22; 1995 c.657 §22; 1995 c.658 §35; 1999 c.1055 §11; 2005 c.345 §2; 2005 c.463 §8; 2005 c.463 §13; 2005 c.843 §25; 2007 c.16 §2; 2009 c.178 §23; 2013 c.649 §32]
Note: The amendments to 40.015 (Rule 101. Applicability of Oregon Evidence Code) by section 37, chapter 649, Oregon Laws 2013, become operative July 1, 2023. See section 38, chapter 649, Oregon Laws 2013. The text that is operative on and after July 1, 2023, is set forth for the user’s convenience.
40.015 (Rule 101. Applicability of Oregon Evidence Code). (1) The Oregon Evidence Code applies to all courts in this state except for:
(a) A hearing or mediation before a magistrate of the Oregon Tax Court as provided by ORS 305.501 (Appeals to tax court to be heard by magistrate division);
(b) The small claims department of a circuit court as provided by ORS 46.415 (Circuit judges to sit in department); and
(c) The small claims department of a justice court as provided by ORS 55.080 (Formal pleadings unnecessary).
(2) The Oregon Evidence Code applies generally to civil actions, suits and proceedings, criminal actions and proceedings and to contempt proceedings except those in which the court may act summarily.
(3) ORS 40.225 (Rule 503. Lawyer-client privilege) to 40.295 (Rule 514. Effect on existing privileges) relating to privileges apply at all stages of all actions, suits and proceedings.
(4) ORS 40.010 (Rule 100. Short title) to 40.210 (Rule 412. Sex offense cases) and 40.310 (Rule 601. General rule of competency) to 40.585 (Rule 1008. Functions of court and jury) do not apply in the following situations:
(a) The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under ORS 40.030 (Rule 104. Preliminary questions).
(b) Proceedings before grand juries, except as required by ORS 132.320 (Consideration of evidence).
(c) Proceedings for extradition, except as required by ORS 133.743 (Definitions for ORS 133.743 to 133.857) to 133.857 (Payment of agent’s expenses).
(d) Sentencing proceedings, except proceedings under ORS 138.052 (Appeal from judgment of conviction and sentence of death) and 163.150 (Sentencing for aggravated murder), as required by ORS 137.090 (Considerations in determining aggravation or mitigation) or proceedings under ORS 136.765 (Notice to defendant) to 136.785 (Burden of proof).
(e) Proceedings to revoke probation, except as required by ORS 137.090 (Considerations in determining aggravation or mitigation).
(f) Issuance of warrants of arrest, bench warrants or search warrants.
(g) Proceedings under ORS chapter 135 relating to conditional release, security release, release on personal recognizance, or preliminary hearings, subject to ORS 135.173 (Oregon Evidence Code to apply in preliminary hearings).
(h) Proceedings to determine proper disposition of a child in accordance with ORS 419B.325 (Disposition required) (2) and 419C.400 (Conduct of hearings) (4).
(i) Proceedings under ORS 813.210 (Petition), 813.215 (Eligibility for diversion), 813.220 (Matters to be considered by court in determining to allow diversion agreement), 813.230 (Diversion agreement), 813.250 (Motion to dismiss charge on completion of diversion) and 813.255 (Termination of diversion) to determine whether a driving while under the influence of intoxicants diversion agreement should be allowed or terminated.
(j) Proceedings under ORS 147.530 (Hearing on claim, response or motion) relating to victims’ rights, except for the provisions of ORS 40.105 (Rule 305. Allocation of the burden of persuasion) and 40.115 (Rule 307. Allocation of the burden of producing evidence).
ORS 40.020
Rule 102. Purpose and construction
The Oregon Evidence Code shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined. [1981 c.892 §3]
ORS 40.025
Rule 103. Rulings on evidence
(1) Evidential error is not presumed to be prejudicial. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and:
(a) In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(b) In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
(2) The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made and the ruling thereon. It may direct the making of an offer in question and answer form.
(3) In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
(4) Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. [1981 c.892 §4]
ORS 40.030
Rule 104. Preliminary questions
(1) Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege or the admissibility of evidence shall be determined by the court, subject to the provisions of subsection (2) of this section. In making its determination the court is not bound by the rules of evidence except those with respect to privileges.
(2) When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(3) Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, if the accused so requests.
(4) The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.
(5) This section does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. [1981 c.892 §5]
ORS 40.035
Rule 105. Limited admissibility
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. [1981 c.892 §6]
ORS 40.040
Rule 106. When part of transaction proved, whole admissible
When part of an act, declaration, conversation or writing is given in evidence by one party, the whole on the same subject, where otherwise admissible, may at that time be inquired into by the other; when a letter is read, the answer may at that time be given; and when a detached act, declaration, conversation or writing is given in evidence, any other act, declaration, conversation or writing which is necessary to make it understood may at that time also be given in evidence. [1981 c.892 §6a]
