Chapter 40 — Chapter 40

ORS 40.010 Rule 100. Short title. ORS 40.010 to 40.585 and 41.415 shall be known and may be cited as the Oregon Evidence Code. [1981 c.892 §1]

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ORS 40.015 Rule 101. Applicability of Oregon Evidence Code. (1) The Oregon Evidence Code applies to all courts in this state except for

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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]

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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

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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

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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]

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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]

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ORS 40.060 Rule 201(a). Scope. ORS 40.060 to 40.085 govern judicial notice of adjudicative facts. ORS 40.090 governs judicial notice of law. [1981 c.892 §7]

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ORS 40.065 Rule 201(b). Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either

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ORS 40.070 Rules 201(c) and 201(d). When mandatory or discretionary. (1) A court may take judicial notice, whether requested or not

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ORS 40.075 Rule 201(e). Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. [1981 c.892 §10]

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ORS 40.080 Rule 201(f). Time of taking notice. Judicial notice may be taken at any stage of the proceeding. [1981 c.892 §11]

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ORS 40.085 Rule 201(g). Instructing the jury. (1) In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact or law judicially noticed

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ORS 40.090 Rule 202. Law that is judicially noticed. Law judicially noticed is defined as

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ORS 40.105 Rule 305. Allocation of the burden of persuasion. A party has the burden of persuasion as to each fact the existence or nonexistence of which the law declares essential to the claim for relief or defense the party is asserting. [1981 c.892 §14]

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ORS 40.110 Rule 306. Instructions on the burden of persuasion. The court shall instruct the jury as to which party bears the applicable burden of persuasion on each issue only after all of the evidence in the case has been received. [1981 c.892 §15]

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ORS 40.115 Rule 307. Allocation of the burden of producing evidence. (1) The burden of producing evidence as to a particular issue is on the party against whom a finding on the issue would be required in the absence of further evidence

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ORS 40.120 Rule 308. Presumptions in civil proceedings. In civil actions and proceedings, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. [1981 c.892 §17]

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ORS 40.125 Rule 309. Presumptions in criminal proceedings. (1) The judge is not authorized to direct the jury to find a presumed fact against the accused

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ORS 40.130 Rule 310. Conflicting presumptions. If presumptions are conflicting, the presumption applies that is founded upon weightier considerations of policy and logic. If considerations of policy and logic are of equal weight, neither presumption applies. [1981 c.892 §19]

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ORS 40.135 Rule 311. Presumptions. (1) The following are presumptions

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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]

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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]

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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]

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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

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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

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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

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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

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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]

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ORS 40.190 Rule 408. Compromise and offers to compromise. (1)(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

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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]

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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

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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

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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 (1), 163.355 to 163.427, 163.670 or 167.017, in a prosecution for an attempt to commit one of those crimes or in a proceeding conducted under ORS 163.760 to 163.777, the following evidence is not admissible

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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

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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]

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ORS 40.225 Rule 503. Law practitioner-client privilege. (1) As used in this section, unless the context requires otherwise

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ORS 40.227 Rule 503-1. Right of client to communicate with law practitioner; inadmissibility of evidence obtained or disclosed without client’s consent. (1) As used in this section, “client,” “confidential communication,” “law practitioner” and “representative of the law practitioner” have the meanings given those terms in ORS 40.225

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ORS 40.230 Rule 504. Psychotherapist-patient privilege. (1) As used in this section, unless the context requires otherwise

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ORS 40.235 Rule 504-1. Physician-patient privilege. (1) As used in this section, unless the context requires otherwise

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ORS 40.240 Rule 504-2. Nurse-patient privilege. A licensed professional nurse shall not, without the consent of a patient who was cared for by such nurse, be examined in a civil action or proceeding, as to any information acquired in caring for the patient, which was necessary to enable the nurse to care for the patient. [1981 c.892 §33b]

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ORS 40.245 Rule 504-3. School employee-student privilege. (1) A certificated staff member of an elementary or secondary school may not be examined in any civil action or proceeding as to any conversation between the certificated staff member and a student that relates to the personal affairs of the student or family of the student, and that if disclosed would tend to damage or incriminate the student or family. Any violation of the privilege provided by this subsection may result in the suspension of certification of the professional staff member as provided in ORS 342.175, 342.177 and 342.180

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ORS 40.250 Rule 504-4. Regulated social worker-client privilege. A regulated social worker under ORS 675.510 to 675.600 may not be examined in a civil or criminal court proceeding as to any communication given the regulated social worker by a client in the course of noninvestigatory professional activity when the communication was given to enable the regulated social worker to aid the client, except when

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ORS 40.252 Rule 504-5. Communications revealing intent to commit certain crimes. (1) In addition to any other limitations on privilege that may be imposed by law, there is no privilege under ORS 40.225, 40.230, 40.250, 40.264 or 40.274 for communications if

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ORS 40.255 Rule 505. Spousal privilege. (1) As used in this section, unless the context requires otherwise

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ORS 40.260 Rule 506. Member of clergy-penitent privilege. (1) As used in this section, unless the context requires otherwise

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ORS 40.262 Rule 507. Counselor-client privilege. A professional counselor or a marriage and family therapist licensed by the Oregon Board of Licensed Professional Counselors and Therapists under ORS 675.715 shall not be examined in a civil or criminal court proceeding as to any communication given the counselor or therapist by a client in the course of a noninvestigatory professional activity when such communication was given to enable the counselor or the therapist to aid the client, except

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ORS 40.264 Rule 507-1. Certified advocate-victim privilege. (1) As used in this section

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ORS 40.265 Rule 508a. Stenographer-employer privilege. A stenographer shall not, without the consent of the stenographer’s employer, be examined as to any communication or dictation made by the employer to the stenographer in the course of professional employment. [1981 c.892 §36]

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ORS 40.270 Rule 509. Public officer privilege. A public officer shall not be examined as to public records determined to be exempt from disclosure under ORS 192.338, 192.345 and 192.355. [1981 c.892 §37]

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