OEC 600s Flashcards
ORS 40.310
Rule 601. General rule of competency
Except as provided in ORS 40.310 (Rule 601. General rule of competency) to 40.335 (Rule 606. Competency of juror as witness), any person who, having organs of sense can perceive, and perceiving can make known the perception to others, may be a witness. [1981 c.892 §43]
ORS 40.315
Rule 602. Lack of personal knowledge
Subject to the provisions of ORS 40.415 (Rule 703. Bases of opinion testimony by experts), a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness. [1981 c.892 §44]
ORS 40.320
Rule 603. Oath or affirmation
(1) Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the conscience of the witness and impress the mind of the witness with the duty to do so.
(2) An oath may be administered as follows: The person who swears holds up one hand while the person administering the oath asks: “Under penalty of perjury, do you solemnly swear that the evidence you shall give in the issue (or matter) now pending between _____ and _____ shall be the truth, the whole truth and nothing but the truth, so help you God?” If the oath is administered to any other than a witness, the same form and manner may be used. The person swearing must answer in an affirmative manner.
(3) An affirmation may be administered as follows: The person who affirms holds up one hand while the person administering the affirmation asks: “Under penalty of perjury, do you promise that the evidence you shall give in the issue (or matter) now pending between _____ and _____ shall be the truth, the whole truth and nothing but the truth?” If the affirmation is administered to any other than a witness, the same form and manner may be used. The person affirming must answer in an affirmative manner. [1981 c.892 §45]
ORS 40.325
Rule 604. Interpreters
Except as provided in ORS 45.275 (Appointment of interpreter for non-English-speaking party, witness or victim) (7), an interpreter is subject to the provisions of the Oregon Evidence Code relating to qualification as an expert and the administration of an oath or affirmation that the interpreter will make a true and impartial interpretation of the proceedings in an understandable manner using the interpreter’s best skills and judgment in accordance with the standards and ethics of the interpreter profession. [1981 c.892 §47; 1981 s.s. c.3 §138; 1989 c.224 §7; 1991 c.750 §7; 2001 c.242 §4; 2005 c.385 §3; 2015 c.155 §5]
ORS 40.330
Rule 605. Competency of judge as witness
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point. [1981 c.892 §48]
ORS 40.335
Rule 606. Competency of juror as witness
A member of the jury may not testify as a witness before that jury in the trial of the case in which the member has been sworn to sit as a juror. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. [1981 c.892 §49]
ORS 40.345
Rule 607. Who may impeach
The credibility of a witness may be attacked by any party, including the party calling the witness. [1981 c.892 §51]
ORS 40.350
Rule 608. Evidence of character and conduct of witness
(1) The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but:
(a) The evidence may refer only to character for truthfulness or untruthfulness; and
(b) Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(2) Specific instances of the conduct of a witness, for the purpose of attacking or supporting the credibility of the witness, other than conviction of crime as provided in ORS 40.355 (Rule 609. Impeachment by evidence of conviction of crime), may not be proved by extrinsic evidence. Further, such specific instances of conduct may not, even if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness. [1981 c.892 §52]
ORS 40.355
Rule 609. Impeachment by evidence of conviction of crime
* exceptions
(1) For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record, but only if the crime:
(a) Was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted; or
(b) Involved false statement or dishonesty.
(2) Intentionally left blank —Ed.
(a) If a defendant is charged with one or more of the crimes listed in paragraph (b) of this subsection, and the defendant is a witness, evidence that the defendant has been convicted of committing one or more of the following crimes against a family or household member, as defined in ORS 135.230 (Definitions for ORS 135.230 to 135.290), may be elicited from the defendant, or established by public record, and admitted into evidence for the purpose of attacking the credibility of the defendant:
(A) Assault in the fourth degree under ORS 163.160 (Assault in the fourth degree).
(B) Menacing under ORS 163.190 (Menacing).
(C) Harassment under ORS 166.065 (Harassment).
(D) Attempted assault in the fourth degree under ORS 163.160 (Assault in the fourth degree) (1).
(E) Attempted assault in the fourth degree under ORS 163.160 (Assault in the fourth degree) (3).
(F) Strangulation under ORS 163.187 (Strangulation).
(G) The statutory counterpart in another jurisdiction to a crime listed in this paragraph.
(b) Evidence may be admitted into evidence for the purpose of attacking the credibility of a defendant under the provisions of this subsection only if the defendant is charged with committing one or more of the following crimes against a family or household member, as defined in ORS 135.230 (Definitions for ORS 135.230 to 135.290):
(A) Aggravated murder under ORS 163.095 (“Aggravated murder” defined).
(B) Murder in the first degree under ORS 163.107 (Murder in the first degree).
(C) Murder in the second degree under ORS 163.115 (Murder in the second degree).
(D) Manslaughter in the first degree under ORS 163.118 (Manslaughter in the first degree).
(E) Manslaughter in the second degree under ORS 163.125 (Manslaughter in the second degree).
(F) Assault in the first degree under ORS 163.185 (Assault in the first degree).
(G) Assault in the second degree under ORS 163.175 (Assault in the second degree).
(H) Assault in the third degree under ORS 163.165 (Assault in the third degree).
(I) Assault in the fourth degree under ORS 163.160 (Assault in the fourth degree).
(J) Rape in the first degree under ORS 163.375 (Rape in the first degree) (1)(a).
(K) Sodomy in the first degree under ORS 163.405 (Sodomy in the first degree) (1)(a).
(L) Unlawful sexual penetration in the first degree under ORS 163.411 (Unlawful sexual penetration in the first degree) (1)(a).
(M) Sexual abuse in the first degree under ORS 163.427 (Sexual abuse in the first degree) (1)(a)(B).
(N) Kidnapping in the first degree under ORS 163.235 (Kidnapping in the first degree).
(O) Kidnapping in the second degree under ORS 163.225 (Kidnapping in the second degree).
(P) Burglary in the first degree under ORS 164.225 (Burglary in the first degree).
(Q) Coercion under ORS 163.275 (Coercion).
(R) Stalking under ORS 163.732 (Stalking).
(S) Violating a court’s stalking protective order under ORS 163.750 (Violating a court’s stalking protective order).
(T) Menacing under ORS 163.190 (Menacing).
(U) Harassment under ORS 166.065 (Harassment).
(V) Strangulation under ORS 163.187 (Strangulation).
(W) Attempting to commit a crime listed in this paragraph.
(3) Evidence of a conviction under this section is not admissible if:
(a) A period of more than 15 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date; or
(b) The conviction has been expunged by pardon, reversed, set aside or otherwise rendered nugatory.
(4) When the credibility of a witness is attacked by evidence that the witness has been convicted of a crime, the witness shall be allowed to explain briefly the circumstances of the crime or former conviction; once the witness explains the circumstances, the opposing side shall have the opportunity to rebut the explanation.
(5) The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.
(6) An adjudication by a juvenile court that a child is within its jurisdiction is not a conviction of a crime.
(7) A conviction of any of the statutory counterparts of offenses designated as violations as described in ORS 153.008 (Violations described) may not be used to impeach the character of a witness in any criminal or civil action or proceeding. [1981 c.892 §53; 1987 c.2 §9; subsection (6) of 1993 Edition enacted as 1993 c.379 §4; 1999 c.1051 §121; 2001 c.714 §1; 2003 c.577 §3; 2009 c.56 §1; 2019 c.635 §6]
Note: 40.355 (Rule 609. Impeachment by evidence of conviction of crime) (7) was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 40 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.
ORS 40.360
Rule 609-1. Impeachment for bias or interest
(1) The credibility of a witness may be attacked by evidence that the witness engaged in conduct or made statements showing bias or interest. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the statement shall be shown or disclosed to the opposing party.
(2) If a witness fully admits the facts claimed to show the bias or interest of the witness, additional evidence of that bias or interest shall not be admitted. If the witness denies or does not fully admit the facts claimed to show bias or interest, the party attacking the credibility of the witness may then offer evidence to prove those facts.
(3) Evidence to support or rehabilitate a witness whose credibility has been attacked by evidence of bias or interest shall be limited to evidence showing a lack of bias or interest. [1981 c.892 §54; 1999 c.100 §1]
ORS 40.365
Rule 610. Religious beliefs or opinions
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the credibility of the witness is impaired or enhanced. [1981 c.892 §54a]
ORS 40.370
Rule 611. Mode and order of interrogation and presentation
(1) The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth, avoid needless consumption of time and protect witnesses from harassment or undue embarrassment.
(2) Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
(3) Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. [1981 c.892 §54b]
ORS 40.375
Rule 612. Writing used to refresh memory
If a witness uses a writing to refresh memory for the purpose of testifying, either while testifying or before testifying if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce into evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this section, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. [1981 c.892 §55]
ORS 40.380
Rule 613. Prior statements of witnesses
(1) In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.
(2) Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in ORS 40.450 (Rule 801. Definitions for ORS 40.450 to 40.475). [1981 c.892 §55a; 1983 c.433 §2; 1983 c.740 §5]
ORS 40.385
Rule 615. Exclusion of witnesses
At the request of a party the court may order witnesses excluded until the time of final argument, and it may make the order of its own motion. This rule does not authorize exclusion of:
(1) A party who is a natural person;
(2) An officer or employee of a party which is not a natural person designated as its representative by its attorney;
(3) A person whose presence is shown by a party to be essential to the presentation of the party’s cause; or
(4) The victim in a criminal case. [1981 c.892 §56; 1987 c.2 §5; 2003 c.14 §20]
