OEC 400s Flashcards
ORS 40.150
Rule 401. Definition of “relevant evidence.”
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. [1981 c.892 §21]
ORS 40.155
Rule 402. Relevant evidence generally admissible
All relevant evidence is admissible, except as otherwise provided by the Oregon Evidence Code, by the Constitutions of the United States and Oregon, or by Oregon statutory and decisional law. Evidence which is not relevant is not admissible. [1981 c.892 §22]
ORS 40.160
Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion or undue delay
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence. [1981 c.892 §23]
ORS 40.170
Rule 404. Character evidence
* evidence of other crimes, wrongs or acts
(1) Evidence of a person’s character or trait of character is admissible when it is an essential element of a charge, claim or defense.
(2) Evidence of a person’s character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:
(a) Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;
(b) Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same or evidence of a character trait of peacefulness of the victim offered by the prosecution to rebut evidence that the victim was the first aggressor;
(c) Evidence of the character of a witness, as provided in ORS 40.345 (Rule 607. Who may impeach) to 40.355 (Rule 609. Impeachment by evidence of conviction of crime); or
(d) Evidence of the character of a party for violent behavior offered in a civil assault and battery case when self-defense is pleaded and there is evidence to support such defense.
(3) Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
(4) In criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by:
(a) ORS 40.180 (Rule 406. Habit), 40.185 (Rule 407. Subsequent remedial measures), 40.190 (Rule 408. Compromise and offers to compromise), 40.195 (Rule 409. Payment of medical and similar expenses), 40.200 (Rule 410. Withdrawn plea or statement not admissible), 40.205 (Rule 411. Liability insurance), 40.210 (Rule 412. Sex offense cases) and, to the extent required by the United States Constitution or the Oregon Constitution, ORS 40.160 (Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion or undue delay);
(b) The rules of evidence relating to privilege and hearsay;
(c) The Oregon Constitution; and
(d) The United States Constitution. [1981 c.892 §24; 1997 c.313 §29]
ORS 40.175
Rule 405. Methods of proving character
(1) In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
(2) Intentionally left blank —Ed.
(a) In cases in which character or a trait of character of a person is admissible under ORS 40.170 (Rule 404. Character evidence) (1), proof may also be made of specific instances of the conduct of the person.
(b) When evidence is admissible under ORS 40.170 (Rule 404. Character evidence) (3) or (4), proof may be made of specific instances of the conduct of the person. [1981 c.892 §25; 1997 c.313 §34]
ORS 40.180
Rule 406. Habit
* routine practice
(1) Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
(2) As used in this section, “habit” means a person’s regular practice of meeting a particular kind of situation with a specific, distinctive type of conduct. [1981 c.892 §21]
ORS 40.172
Rule 404-1. Pattern, practice or history of abuse
* expert testimony
(1) In any proceeding, any party may introduce evidence establishing a pattern, practice or history of abuse of a person and may introduce expert testimony to assist the fact finder in understanding the significance of such evidence if the evidence:
(a) Is relevant to any material issue in the proceeding; and
(b) Is not inadmissible under any other provision of law including, but not limited to, rules regarding relevance, privilege, hearsay, competency and authentication.
(2) This section may not be construed to limit any evidence that would otherwise be admissible under the Oregon Evidence Code or any other provision of law.
(3) As used in this section, “abuse” has the meaning given that term in ORS 107.705 (Definitions for ORS 107.700 to 107.735). [1997 c.397 §2]
Note: 40.172 (Rule 404-1. Pattern, practice or history of abuse) was added to and made a part of 40.010 (Rule 100. Short title) to 40.585 (Rule 1008. Functions of court and jury) by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.
ORS 40.185
Rule 407. Subsequent remedial measures
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This section does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. [1981 c.892 §27]
ORS 40.190
Rule 408. Compromise and offers to compromise
(1) Intentionally left blank —Ed.
(a) Evidence of furnishing or offering or promising to furnish, or accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.
(b) Evidence of conduct or statements made in compromise negotiations is likewise not admissible.
(2) Intentionally left blank —Ed.
(a) Subsection (1) of this section does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.
(b) Subsection (1) of this section also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. [1981 c.892 §28]
ORS 40.195
Rule 409. Payment of medical and similar expenses
Evidence of furnishing or offering or promising to pay medical, hospital or similar expenses occasioned by an injury is not admissible to prove liability for the injury. Evidence of payment for damages arising from injury or destruction of property is not admissible to prove liability for the injury or destruction. [1981 c.892 §29]
ORS 40.200
Rule 410. Withdrawn plea or statement not admissible
(1) A plea of guilty or no contest which is not accepted or has been withdrawn shall not be received against the defendant in any criminal proceeding.
(2) No statement or admission made by a defendant or a defendant’s attorney during any proceeding relating to a plea of guilty or no contest which is not accepted or has been withdrawn shall be received against the defendant in any criminal proceeding. [1981 c.892 §29a]
ORS 40.205
Rule 411. Liability insurance
(1) Except where lack of liability insurance is an element of an offense, evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.
(2) Subsection (1) of this section does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proving agency, ownership or control, or bias, prejudice or motive of a witness. [1981 c.892 §30]
ORS 40.210
Rule 412. Sex offense cases
* relevance of victim’s past behavior or manner of dress
(1) Notwithstanding any other provision of law, in a prosecution for a crime described in ORS 163.266 (Trafficking in persons) (1)(b) or (c), 163.355 (Rape in the third degree) to 163.427 (Sexual abuse in the first degree), 163.670 (Using child in display of sexually explicit conduct) or 167.017 (Compelling prostitution), in a prosecution for an attempt to commit one of those crimes or in a proceeding conducted under ORS 163.760 (Definitions for ORS 163.760 to 163.777) to 163.777 (Fees or undertaking may not be required), the following evidence is not admissible:
(a) Reputation or opinion evidence of the past sexual behavior of an alleged victim or a corroborating witness; or
(b) Reputation or opinion evidence presented for the purpose of showing that the manner of dress of an alleged victim incited the crime or, in a proceeding under ORS 163.760 (Definitions for ORS 163.760 to 163.777) to 163.777 (Fees or undertaking may not be required), incited the sexual abuse, or indicated consent to the sexual acts that are alleged.
(2) Notwithstanding any other provision of law, in a prosecution for a crime or an attempt to commit a crime listed in subsection (1) of this section or in a proceeding conducted under ORS 163.760 (Definitions for ORS 163.760 to 163.777) to 163.777 (Fees or undertaking may not be required), evidence of an alleged victim’s past sexual behavior other than reputation or opinion evidence is also not admissible, unless the evidence other than reputation or opinion evidence:
(a) Is admitted in accordance with subsection (4) of this section; and
(b) Is evidence that:
(A) Relates to the motive or bias of the alleged victim;
(B) Is necessary to rebut or explain scientific or medical evidence offered by the state; or
(C) Is otherwise constitutionally required to be admitted.
(3) Notwithstanding any other provision of law, in a prosecution for a crime or an attempt to commit a crime listed in subsection (1) of this section or in a proceeding conducted under ORS 163.760 (Definitions for ORS 163.760 to 163.777) to 163.777 (Fees or undertaking may not be required), evidence, other than reputation or opinion evidence, of the manner of dress of the alleged victim or a corroborating witness, presented by a person accused of committing the crime or, in a proceeding conducted under ORS 163.760 (Definitions for ORS 163.760 to 163.777) to 163.777 (Fees or undertaking may not be required), by the respondent, is also not admissible, unless the evidence:
(a) Is admitted in accordance with subsection (4) of this section; and
(b) Is evidence that:
(A) Relates to the motive or bias of the alleged victim;
(B) Is necessary to rebut or explain scientific, medical or testimonial evidence offered by the state;
(C) Is necessary to establish the identity of the alleged victim; or
(D) Is otherwise constitutionally required to be admitted.
(4) Intentionally left blank —Ed.
(a) If the person accused of a crime or an attempt to commit a crime listed in subsection (1) of this section, or the respondent in a proceeding conducted under ORS 163.760 (Definitions for ORS 163.760 to 163.777) to 163.777 (Fees or undertaking may not be required), intends to offer evidence under subsection (2) or (3) of this section, the accused or the respondent shall make a written motion to offer the evidence not later than 15 days before the date on which the trial in which the evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which the evidence relates has newly arisen in the case. Any motion made under this paragraph shall be served on all other parties and, in a criminal proceeding, on the alleged victim through the office of the prosecutor.
(b) The motion described in paragraph (a) of this subsection shall be accompanied by a written offer of proof. If the court determines that the offer of proof contains evidence described in subsection (2) or (3) of this section, the court shall order a hearing in camera to determine if the evidence is admissible. At the hearing the parties may call witnesses, including the alleged victim, and offer relevant evidence. Notwithstanding ORS 40.030 (Rule 104. Preliminary questions) (2), if the relevancy of the evidence that the accused or the respondent seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the hearing in camera or at a subsequent hearing in camera scheduled for the same purpose, shall accept evidence on the issue of whether the condition of fact is fulfilled and shall determine the issue.
(c) If the court determines on the basis of the hearing described in paragraph (b) of this subsection that the evidence the accused or the respondent seeks to offer is relevant and that the probative value of the evidence outweighs the danger of unfair prejudice, the evidence shall be admissible in the trial to the extent an order made by the court specifies evidence that may be offered and areas with respect to which a witness may be examined or cross-examined.
(d) An order admitting evidence under this subsection in a criminal prosecution may be appealed by the state before trial.
(5) For purposes of this section:
(a) “Alleged victim” includes the petitioner in a proceeding conducted under ORS 163.760 (Definitions for ORS 163.760 to 163.777) to 163.777 (Fees or undertaking may not be required).
(b) “In camera” means out of the presence of the public and the jury.
(c) “Past sexual behavior” means sexual behavior other than:
(A) The sexual behavior with respect to which the crime or attempt to commit the crime listed in subsection (1) of this section is alleged; or
(B) In a proceeding conducted under ORS 163.760 (Definitions for ORS 163.760 to 163.777) to 163.777 (Fees or undertaking may not be required), the alleged sexual abuse.
(d) “Trial” includes a hearing conducted under ORS 163.760 (Definitions for ORS 163.760 to 163.777) to 163.777 (Fees or undertaking may not be required). [1981 c.892 §31; 1993 c.301 §1; 1993 c.776 §1; 1997 c.249 §20; 1999 c.949 §3; 2013 c.687 §21; 2013 c.720 §5; 2019 c.13 §20]
ORS 40.211
Rule 412-1. Evidence not admissible in civil proceeding involving sexual misconduct
(1) Unless the alleged victim has placed the evidence in controversy and the court determines that the probative value of the evidence substantially outweighs the danger of harm to any victim and of unfair prejudice to any party, the following evidence is not admissible in a civil proceeding involving alleged sexual misconduct:
(a) Evidence offered to prove that an alleged victim engaged in other sexual behavior; or
(b) Evidence offered to prove an alleged victim’s sexual predisposition.
(2) If a party intends to offer evidence under subsection (1) of this section, the party must:
(a) Make a written motion at least 15 days before the date on which the proceeding in which the evidence is to be offered is scheduled to begin unless the court, for good cause, sets a different time;
(b) In the motion, specifically describe the evidence and state the purpose for which it is to be offered;
(c) Serve the motion on all parties; and
(d) Notify the alleged victim or the alleged victim’s representative.
(3) Before admitting evidence under this section, the court must conduct an in camera hearing and give the alleged victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials and the record of the hearing are confidential. A party making a motion under this section shall state in the caption that the motion is confidential.
(4) As used in this section, “in camera” means out of the presence of the public and the jury. [2017 c.321 §2]
ORS 40.215
Rule 413. Measures and assessments intended to minimize impact of or plan for natural disaster
Evidence of measures taken or vulnerability assessments conducted before a natural disaster occurs that were intended to minimize the impact of or plan for the natural disaster is not admissible to prove negligence or culpable conduct in connection with damage, harm, injury or death resulting from the natural disaster. [2015 c.541 §2]
