OEC 800s Flashcards
ORS 40.450
Rule 801. Definitions for ORS 40.450 to 40.475
As used in ORS 40.450 (Rule 801. Definitions for ORS 40.450 to 40.475) to 40.475 (Rule 806. Attacking and supporting credibility of declarant), unless the context requires otherwise:
(1) A “statement” is:
(a) An oral or written assertion; or
(b) Nonverbal conduct of a person, if intended as an assertion.
(2) A “declarant” is a person who makes a statement.
(3) “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(4) A statement is not hearsay if:
(a) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement:
(A) Is inconsistent with the testimony of the witness and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition;
(B) Is consistent with the testimony of the witness and is offered to rebut an inconsistent statement or an express or implied charge against the witness of recent fabrication or improper influence or motive;
(C) Is one of identification of a person made after perceiving the person; or
(D) Purports to interpret an otherwise admissible statement made by another person from one language into another.
(b) The statement is offered against a party and is:
(A) That party’s own statement, in either an individual or a representative capacity;
(B) A statement of which the party has manifested the party’s adoption or belief in its truth;
(C) A statement by a person authorized by the party to make a statement concerning the subject;
(D) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship; or
(E) A statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
(c) The statement is made in a deposition taken in the same proceeding pursuant to ORCP 39 I. [1981 c.892 §62; 1987 c.275 §3; 2019 c.306 §1]
ORS 40.455
Rule 802. Hearsay rule
Hearsay is not admissible except as provided in ORS 40.450 (Rule 801. Definitions for ORS 40.450 to 40.475) to 40.475 (Rule 806. Attacking and supporting credibility of declarant) or as otherwise provided by law. [1981 c.892 §63]
ORS 40.460
Rule 803. Hearsay exceptions
The following are not excluded by ORS 40.455 (Rule 802. Hearsay rule), even though the declarant is available as a witness:
(1) (Reserved.)
(2) A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
(3) A statement of the declarant’s then existing state of mind, emotion, sensation or physical condition, such as intent, plan, motive, design, mental feeling, pain or bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant’s will.
(4) Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
(5) A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the memory of the witness and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
(6) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method of circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this subsection includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
(7) Evidence that a matter is not included in the memoranda, reports, records, or data compilations, and in any form, kept in accordance with the provisions of subsection (6) of this section, to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
(8) Records, reports, statements or data compilations, in any form, of public offices or agencies, including federally recognized American Indian tribal governments, setting forth:
(a) The activities of the office or agency;
(b) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, in criminal cases, matters observed by police officers and other law enforcement personnel;
(c) In civil actions and proceedings and against the government in criminal cases, factual findings, resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness; or
(d) In civil actions and criminal proceedings, a sheriff’s return of service.
(9) Records or data compilations, in any form, of births, fetal deaths, deaths or marriages, if the report thereof was made to a public office, including a federally recognized American Indian tribal government, pursuant to requirements of law.
(10) To prove the absence of a record, report, statement or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement or data compilation, in any form, was regularly made and preserved by a public office or agency, including a federally recognized American Indian tribal government, evidence in the form of a certification in accordance with ORS 40.510 (Rule 902. Self-authentication), or testimony, that diligent search failed to disclose the record, report, statement or data compilation, or entry.
(11) Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.
(12) A statement of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a member of the clergy, a public official, an official of a federally recognized American Indian tribal government or any other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.
(13) Statements of facts concerning personal or family history contained in family bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.
(14) The record of a document purporting to establish or affect an interest in property, as proof of content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office, including a federally recognized American Indian tribal government, and an applicable statute authorizes the recording of documents of that kind in that office.
(15) A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
(16) Statements in a document in existence 20 years or more the authenticity of which is established.
(17) Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
(18) (Reserved.)
(18a) Intentionally left blank —Ed.
(a) A complaint of sexual misconduct, complaint of abuse as defined in ORS 107.705 (Definitions for ORS 107.700 to 107.735) or 419B.005 (Definitions), complaint of abuse of an elderly person, as those terms are defined in ORS 124.050 (Definitions for ORS 124.050 to 124.095), or a complaint relating to a violation of ORS 163.205 (Criminal mistreatment in the first degree) or 164.015 (“Theft” described) in which a person 65 years of age or older is the victim, made by the witness after the commission of the alleged misconduct or abuse at issue. Except as provided in paragraph (b) of this subsection, such evidence must be confined to the fact that the complaint was made.
(b) A statement made by a person concerning an act of abuse as defined in ORS 107.705 (Definitions for ORS 107.700 to 107.735) or 419B.005 (Definitions), a statement made by a person concerning an act of abuse of an elderly person, as those terms are defined in ORS 124.050 (Definitions for ORS 124.050 to 124.095), or a statement made by a person concerning a violation of ORS 163.205 (Criminal mistreatment in the first degree) or 164.015 (“Theft” described) in which a person 65 years of age or older is the victim, is not excluded by ORS 40.455 (Rule 802. Hearsay rule) if the declarant either testifies at the proceeding and is subject to cross-examination, or is unavailable as a witness but was chronologically or mentally under 12 years of age when the statement was made or was 65 years of age or older when the statement was made. However, if a declarant is unavailable, the statement may be admitted in evidence only if the proponent establishes that the time, content and circumstances of the statement provide indicia of reliability, and in a criminal trial that there is corroborative evidence of the act of abuse and of the alleged perpetrator’s opportunity to participate in the conduct and that the statement possesses indicia of reliability as is constitutionally required to be admitted. No statement may be admitted under this paragraph unless the proponent of the statement makes known to the adverse party the proponent’s intention to offer the statement and the particulars of the statement no later than 15 days before trial, except for good cause shown. For purposes of this paragraph, in addition to those situations described in ORS 40.465 (Rule 804. Hearsay exceptions when the declarant is unavailable) (1), the declarant shall be considered “unavailable” if the declarant has a substantial lack of memory of the subject matter of the statement, is presently incompetent to testify, is unable to communicate about the abuse or sexual conduct because of fear or other similar reason or is substantially likely, as established by expert testimony, to suffer lasting severe emotional trauma from testifying. Unless otherwise agreed by the parties, the court shall examine the declarant in chambers and on the record or outside the presence of the jury and on the record. The examination shall be conducted immediately prior to the commencement of the trial in the presence of the attorney and the legal guardian or other suitable person as designated by the court. If the declarant is found to be unavailable, the court shall then determine the admissibility of the evidence. The determinations shall be appealable under ORS 138.045 (Appeal by state) (1)(d). The purpose of the examination shall be to aid the court in making its findings regarding the availability of the declarant as a witness and the reliability of the statement of the declarant. In determining whether a statement possesses indicia of reliability under this paragraph, the court may consider, but is not limited to, the following factors:
(A) The personal knowledge of the declarant of the event;
(B) The age and maturity of the declarant or extent of disability if the declarant is a person with a developmental disability;
(C) Certainty that the statement was made, including the credibility of the person testifying about the statement and any motive the person may have to falsify or distort the statement;
(D) Any apparent motive the declarant may have to falsify or distort the event, including bias, corruption or coercion;
(E) The timing of the statement of the declarant;
(F) Whether more than one person heard the statement;
(G) Whether the declarant was suffering pain or distress when making the statement;
(H) Whether the declarant’s young age or disability makes it unlikely that the declarant fabricated a statement that represents a graphic, detailed account beyond the knowledge and experience of the declarant;
(I) Whether the statement has internal consistency or coherence and uses terminology appropriate to the declarant’s age or to the extent of the declarant’s disability if the declarant is a person with a developmental disability;
(J) Whether the statement is spontaneous or directly responsive to questions; and
(K) Whether the statement was elicited by leading questions.
(c) This subsection applies to all civil, criminal and juvenile proceedings.
(d) This subsection applies to a child declarant, a declarant who is an elderly person as defined in ORS 124.050 (Definitions for ORS 124.050 to 124.095) or an adult declarant with a developmental disability. For the purposes of this subsection, “developmental disability” means any disability attributable to mental retardation, autism, cerebral palsy, epilepsy or other disabling neurological condition that requires training or support similar to that required by persons with mental retardation, if either of the following apply:
(A) The disability originates before the person attains 22 years of age, or if the disability is attributable to mental retardation the condition is manifested before the person attains 18 years of age, the disability can be expected to continue indefinitely, and the disability constitutes a substantial handicap to the ability of the person to function in society.
(B) The disability results in a significant subaverage general intellectual functioning with concurrent deficits in adaptive behavior that are manifested during the developmental period.
(19) Reputation among members of a person’s family by blood, adoption or marriage, or among a person’s associates, or in the community, concerning a person’s birth, adoption, marriage, divorce, death, legitimacy, relationship by blood or adoption or marriage, ancestry, or other similar fact of a person’s personal or family history.
(20) Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located.
(21) Reputation of a person’s character among associates of the person or in the community.
(22) Evidence of a final judgment, entered after a trial or upon a plea of guilty, but not upon a plea of no contest, adjudging a person guilty of a crime other than a traffic offense, to prove any fact essential to sustain the judgment, but not including, when offered by the government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.
(23) Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.
(24) Notwithstanding the limits contained in subsection (18a) of this section, in any proceeding in which a child under 12 years of age at the time of trial, or a person with a developmental disability as described in subsection (18a)(d) of this section, may be called as a witness to testify concerning an act of abuse, as defined in ORS 419B.005 (Definitions), or sexual conduct performed with or on the child or person with a developmental disability by another, the testimony of the child or person with a developmental disability taken by contemporaneous examination and cross-examination in another place under the supervision of the trial judge and communicated to the courtroom by closed-circuit television or other audiovisual means. Testimony will be allowed as provided in this subsection only if the court finds that there is a substantial likelihood, established by expert testimony, that the child or person with a developmental disability will suffer severe emotional or psychological harm if required to testify in open court. If the court makes such a finding, the court, on motion of a party, the child, the person with a developmental disability or the court in a civil proceeding, or on motion of the district attorney, the child or the person with a developmental disability in a criminal or juvenile proceeding, may order that the testimony of the child or the person with a developmental disability be taken as described in this subsection. Only the judge, the attorneys for the parties, the parties, individuals necessary to operate the equipment and any individual the court finds would contribute to the welfare and well-being of the child or person with a developmental disability may be present during the testimony of the child or person with a developmental disability.
(25) Intentionally left blank —Ed.
(a) Any document containing data prepared or recorded by the Oregon State Police pursuant to ORS 813.160 (Methods of conducting chemical analyses) (1)(b)(C) or (E), or pursuant to ORS 475.235 (Burden of proof) (4), if the document is produced by data retrieval from the Law Enforcement Data System or other computer system maintained and operated by the Oregon State Police, and the person retrieving the data attests that the information was retrieved directly from the system and that the document accurately reflects the data retrieved.
(b) Any document containing data prepared or recorded by the Oregon State Police that is produced by data retrieval from the Law Enforcement Data System or other computer system maintained and operated by the Oregon State Police and that is electronically transmitted through public or private computer networks under an electronic signature adopted by the Oregon State Police if the person receiving the data attests that the document accurately reflects the data received.
(c) Notwithstanding any statute or rule to the contrary, in any criminal case in which documents are introduced under the provisions of this subsection, the defendant may subpoena the analyst, as defined in ORS 475.235 (Burden of proof) (6), or other person that generated or keeps the original document for the purpose of testifying at the preliminary hearing and trial of the issue. Except as provided in ORS 44.550 (Definitions for ORS 44.550 to 44.566) to 44.566 (Provisions not applicable if public body a party), no charge shall be made to the defendant for the appearance of the analyst or other person.
(26) Intentionally left blank —Ed.
(a) A statement that purports to narrate, describe, report or explain an incident of domestic violence, as defined in ORS 135.230 (Definitions for ORS 135.230 to 135.290), made by a victim of the domestic violence within 24 hours after the incident occurred, if the statement:
(A) Was recorded, either electronically or in writing, or was made to a peace officer as defined in ORS 161.015 (General definitions), corrections officer, youth correction officer, parole and probation officer, emergency medical services provider or firefighter; and
(B) Has sufficient indicia of reliability.
(b) In determining whether a statement has sufficient indicia of reliability under paragraph (a) of this subsection, the court shall consider all circumstances surrounding the statement. The court may consider, but is not limited to, the following factors in determining whether a statement has sufficient indicia of reliability:
(A) The personal knowledge of the declarant.
(B) Whether the statement is corroborated by evidence other than statements that are subject to admission only pursuant to this subsection.
(C) The timing of the statement.
(D) Whether the statement was elicited by leading questions.
(E) Subsequent statements made by the declarant. Recantation by a declarant is not sufficient reason for denying admission of a statement under this subsection in the absence of other factors indicating unreliability.
(27) A report prepared by a forensic scientist that contains the results of a presumptive test conducted by the forensic scientist as described in ORS 475.235 (Burden of proof), if the forensic scientist attests that the report accurately reflects the results of the presumptive test.
(28) Intentionally left blank —Ed.
(a) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that:
(A) The statement is relevant;
(B) The statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts; and
(C) The general purposes of the Oregon Evidence Code and the interests of justice will best be served by admission of the statement into evidence.
(b) A statement may not be admitted under this subsection unless the proponent of it makes known to the adverse party the intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing, or as soon as practicable after it becomes apparent that such statement is probative of the issues at hand, to provide the adverse party with a fair opportunity to prepare to meet it. [1981 c.892 §64; 1989 c.300 §1; 1989 c.881 §1; 1991 c.391 §1; 1995 c.200 §1; 1995 c.476 §1; 1995 c.804 §2; 1999 c.59 §13; 1999 c.674 §1; 1999 c.945 §1; 2001 c.104 §11; 2001 c.533 §1; 2001 c.870 §5; 2003 c.538 §2; 2005 c.118 §3; 2007 c.63 §2; 2007 c.70 §12; 2007 c.636 §3; 2009 c.610 §9; 2011 c.661 §14; 2011 c.703 §21; 2017 c.529 §21]
ORS 40.465
Rule 804. Hearsay exceptions when the declarant is unavailable
(1) “Unavailability as a witness” includes situations in which the declarant:
(a) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of a statement;
(b) Persists in refusing to testify concerning the subject matter of a statement despite an order of the court to do so;
(c) Testifies to a lack of memory of the subject matter of a statement;
(d) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(e) Is absent from the hearing and the proponent of the declarant’s statement has been unable to procure the declarant’s attendance (or in the case of an exception under subsection (3)(b), (c) or (d) of this section, the declarant’s attendance or testimony) by process or other reasonable means.
(2) A declarant is not unavailable as a witness if the declarant’s exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant’s statement for the purpose of preventing the witness from attending or testifying.
(3) The following are not excluded by ORS 40.455 (Rule 802. Hearsay rule) if the declarant is unavailable as a witness:
(a) Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
(b) A statement made by a declarant while believing that death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
(c) A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
(d) Intentionally left blank —Ed.
(A) A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood or adoption or marriage, ancestry, or other similar fact of personal or family history, even though the declarant had no means of acquiring personal knowledge of the matter stated; or
(B) A statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared.
(e) A statement made at or near the time of the transaction by a person in a position to know the facts stated therein, acting in the person’s professional capacity and in the ordinary course of professional conduct.
(f) A statement offered against a party who intentionally or knowingly engaged in criminal conduct that directly caused the death of the declarant, or directly caused the declarant to become unavailable as a witness because of incapacity or incompetence.
(g) A statement offered against a party who engaged in, directed or otherwise participated in wrongful conduct that was intended to cause the declarant to be unavailable as a witness, and did cause the declarant to be unavailable.
(h) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of the Oregon Evidence Code and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this paragraph unless the proponent of it makes known to the adverse party the intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing, or as soon as practicable after it becomes apparent that the statement is probative of the issues at hand, to provide the adverse party with a fair opportunity to prepare to meet it.
(4) For purposes of subsection (3)(f) and (g) of this section, the proponent of a statement is not required to issue a material witness order, as defined in ORS 136.608 (Application procedure), or seek sanctions for contempt in order to show the unavailability of the declarant under subsection (1)(e) of this section. [1981 c.892 §65; 2005 c.458 §1; 2021 c.324 §1]
ORS 40.470
Rule 805. Hearsay within hearsay
Hearsay included within hearsay is not excluded under ORS 40.455 (Rule 802. Hearsay rule) if each part of the combined statements conforms with an exception set forth in ORS 40.460 (Rule 803. Hearsay exceptions) or 40.465 (Rule 804. Hearsay exceptions when the declarant is unavailable). [1981 c.892 §66]
ORS 40.475
Rule 806. Attacking and supporting credibility of declarant
When a hearsay statement, or a statement defined in ORS 40.450 (Rule 801. Definitions for ORS 40.450 to 40.475) (4)(b)(C), (D) or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the hearsay statement of the declarant, is not subject to any requirement under ORS 40.380 (Rule 613. Prior statements of witnesses) relating to impeachment by evidence of inconsistent statements. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination. [1981 c.892 §67]
