Chapter 040

 

      Chapter 40

EVIDENCE CODE

 

      Annotations are listed under the heading “Under former similar statute” if they predate the adoption of the Evidence Code, which went into effect January 1, 1982.

 

Chapter 40

(Generally)

 

NOTES OF DECISIONS

 

      General rule is that polygraph evidence is inadmissible in proceeding governed by Oregon Evidence Code. State v. Brown, 297 Or 404, 687 P2d 751 (1984)

 

      Party could introduce results of polygraph test taken by spouse for purpose of showing that response of party upon learning polygraph results was reasonable. Fromdahl and Fromdahl, 314 Or 496, 840 P2d 683 (1992)

 

      Where state law completely precludes reliable, materially exculpatory evidence, exclusion of that evidence violates Due Process Clauses of United States Constitution. State v. Cazares-Mendez, 233 Or App 310, 227 P3d 172 (2010), aff’d State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491, 256 P3d 104 (2011)

 

      Oregon Evidence Code articulates minimum standards of reliability that apply to many types of evidence for admissibility, including eyewitness identification evidence, and parties must employ code to address admissibility of eyewitness testimony. State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012)

 

LAW REVIEW CITATIONS: 59 OLR 43 (1980); 19 WLR 343 (1983)

 

      40.015

(Rule 101)

 

NOTES OF DECISIONS

 

      Hearsay rules of OEC do not apply to pretrial hearing on motion to suppress evidence in criminal case. State v. Wright, 315 Or 124, 843 P2d 436 (1992)

 

      Applicability of Oregon Evidence Code “as required by ORS 137.090” in proceedings to revoke probation does not make evidence code applicable in adjudicatory phase of revocation proceedings. State v. Hammond, 218 Or App 574, 180 P3d 137 (2008)

 

LAW REVIEW CITATIONS: 62 OLR 514 (1983)

 

      40.025

(Rule 103)

 

NOTES OF DECISIONS

 

      Offer of proof of what would happen in trial was sufficient to permit trial court to rule intelligently on propriety of offered evidence; there was no need for further procedure to preserve assignment of error. State v. Foster, 296 Or 174, 674 P2d 587 (1983)

 

      Treatise was improperly admitted as substantive evidence in medical malpractice case but admission did not prejudice substantial right of defendant because testimony was cumulative of other testimony. Travis v. Unruh, 66 Or App 562, 674 P2d 1192 (1984), Sup Ct review denied

 

      Evidential error is not presumed prejudicial, and party alleging error must show error affected substantial rights. John Henry Company v. MacDonald, 92 Or App 659, 759 P2d 1126 (1988), Sup Ct review denied

 

      Error is harmless only if it is unlikely that it affected verdict and court can say on record verdict would have been same without error. State v. Dillard, 100 Or App 645, 787 P2d 1307 (1990)

 

      Even assuming that testimony in question was inadmissible hearsay, where result of trial would not have been different if trial court had excluded it, no substantial right of plaintiff was affected by admitting testimony and any error does not require reversal. Hager v. American Honda Motor Co., Inc., 101 Or App 640, 792 P2d 459 (1990)

 

      Defendant was not required to make offer of proof to preserve error where offer would give additional information on legal question before court, parties had fully argued merits of issue, offer would not have altered court’s analysis and where evidence sought to be admitted was declared inadmissible as matter of law. State v. Olmstead, 310 Or 455, 800 P2d 277 (1990)

 

      Substantial right of criminal defendant is not affected if there is substantial and convincing evidence of guilt and little likelihood that error affected result. State v. Abercrombie, 108 Or App 447, 816 P2d 656 (1991)

 

      Appellant need not always establish that evidentiary error would produce different result since test is whether erroneously admitted evidence has some likelihood of affecting result. Hass v. Port of Portland, 112 Or App 308, 829 P2d 1008 (1992), Sup Ct review denied

 

      Where pretrial ruling is made on evidentiary issue, failure to pursue discretionary relitigation of issue at trial does not render claim of error on pretrial ruling unpreserved. State v. Cole, 323 Or 30, 912 P2d 907 (1996)

 

      Where record was adequately developed at trial to support affirmance under alternative theory, erroneous concession at trial that alternative theory was inapplicable does not prevent affirmance. State ex rel Juvenile Dept. v. Pfaff, 164 Or App 470, 994 P2d 147 (1999), Sup Ct review denied

 

      40.030

(Rule 104)

 

NOTES OF DECISIONS

 

      Where no witness testified about seeing defendant wearing jacket in co-defendant’s vehicle when victim was killed and facts were made known to expert witness through prosecutor’s hypothetical question, evidence was sufficient to support finding to that effect. State v. Nefstad, 309 Or 523, 789 P2d 1326 (1990)

 

      Where defendant was convicted of child sexual abuse, admission of foster mother’s testimony that child had cried out in her sleep, “Daddy, get off me. Daddy, stop, leave me alone,” constituted reversible error, because state failed, pursuant to this provision, to establish nexus between child’s utterance and alleged incidents. State v. Presley, 108 Or App 149, 814 P2d 550 (1991)

 

      Judge should use preponderance standard of proof in deciding preliminary questions of fact under this section. State v. Carlson, 311 Or 201, 808 P2d 1002 (1991); State v. Kim, 111 Or App 1, 824 P2d 1161 (1992), Sup Ct review denied; Rugemer v. Rhea, 153 Or App 400, 957 P2d 184 (1998)

 

      When party seeks to introduce hearsay statement by another person, determination as to whether party against whom statement is offered intended to adopt, agree with or approve of contents of statement of another is preliminary question of fact for trial judge under this section. State v. Carlson, 311 Or 201, 808 P2d 1002 (1991)

 

LAW REVIEW CITATIONS: 29 WLR 927 (1993)

 

      40.035

(Rule 105)

 

LAW REVIEW CITATIONS: 68 OLR 239 (1989)

 

      40.040

(Rule 106)

 

      See also annotations under ORS 41.880 in permanent edition.

 

LAW REVIEW CITATIONS: 46 WLR 539 (2010)

 

COMPLETED CITATIONS (for ORS 41.880 in permanent edition): State v. Williams, 6 Or App 189, 487 P2d 100 (1971), Sup Ct review denied

 

      40.060 to 40.085

(Rule 201)

 

NOTES OF DECISIONS

 

      That traveling by car to and from a tavern is commonplace and car accidents resulting from drinking are frequent are not indisputable facts that qualify for judicial notice under OEC 201. Chartrand v. Coos Bay Tavern, 298 Or 689, 696 P2d 513 (1985)

 

      Where court takes judicial notice of facts in determining what law is or should be, code limitations on judicial notice of facts do not apply. State v. O’Key, 321 Or 285, 899 P2d 663 (1995)

 

      40.060

(Rule 201(a))

 

NOTES OF DECISIONS

 

      Judicial notice of factual proposition to determine admissibility of evidence is not notice of adjudicative facts. State v. Branch, 243 Or App 309, 259 P3d 103 (2011), Sup Ct review denied

 

      40.065

(Rule 201(b))

 

      See also annotations under ORS 41.410 in permanent edition.

 

NOTES OF DECISIONS

      Private documents that party to proceeding submits into prehearing court or administrative record are not source “whose accuracy cannot reasonably be questioned.” Arlington Education Association v. Arlington School District No. 3, 177 Or App 658, 34 P3d 1197 (2001), Sup Ct review denied

 

COMPLETED CITATIONS (for ORS 41.410 in permanent edition): Beistel v. Pub. Employes Relations Bd., 6 Or App 115, 486 P2d 1305 (1971)

 

      40.090

(Rule 202)

 

      See also annotations under ORS 41.410, 41.420, 41.430, 41.440, 41.450, 41.460 and 41.470 in permanent edition.

 

NOTES OF DECISIONS

 

      Governmental safety regulations adopted under Oregon Safe Employment Act, unlike safety standards or usages of private trades or nongovernmental entities, are law to be judicially noticed. Shahtout v. Emco Garbage Co., 298 Or 598, 695 P2d 897 (1985)

 

      Court could not take judicial notice of legislative history of local land-use ordinance. Byrnes v. City of Hillsboro, 104 Or App 95, 798 P2d 1119 (1990)

 

      40.105

(Rule 305)

 

      See also annotations under ORS 41.210 and 41.240 in permanent edition.

 

NOTES OF DECISIONS

 

      In suit against broker for breach of fiduciary duty by misrepresentation or failure to disclose material facts, jury instruction that defendant broker had burden of proving full performance of its duty of full disclosure was incorrect under this section. Lindland v. United Business Investments, 298 Or 318, 693 P2d 20 (1984)

 

LAW REVIEW CITATIONS: 19 WLR 379 (1983)

 

      40.115

(Rule 307)

 

      See also annotations under ORS 41.210 and 41.240 in permanent edition.

 

LAW REVIEW CITATIONS: 19 WLR 377 (1983)

 

      40.120

(Rule 308)

 

LAW REVIEW CITATIONS: 19 WLR 361 (1983); 62 OLR 485 (1983); 26 WLR 1039 (1990)

 

      40.125

(Rule 309)

 

NOTES OF DECISIONS

 

      An instruction that could give the jury impression that, in absence of evidence from defendant an element of the charge is to be presumed from proof of different facts, violates this rule because it does not make clear to the jury that finding the presumed fact is merely an inference that it is permitted to draw. State v. Nossaman, 63 Or App 789, 666 P2d 1351 (1983)

 

      Jury instruction requiring inference in prosecution for negotiating bad check that if defendant did not make good on check within ten days after receiving notice of refusal that he had knowledge at time check was drawn that it would be dishonored was improper instruction permitting jury to make presumption as to element of crime and was reversible error. State v. Short, 88 Or App 567, 746 P2d 742 (1987)

 

      Trial court may not instruct jury that it may infer firearm was loaded from fact that defendant pointed firearm at another. State v. Campbell, 100 Or App 153, 785 P2d 370 (1990), Sup Ct review denied

 

      40.135

(Rule 311)

 

      See also annotations under ORS 41.360 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 41.360)

 

      In general

 

      In civil case when basic facts giving rise to disputable presumption are established, presumption binds trier of fact if there is no opposing evidence, but if there is, trier must weigh evidence, giving presumption value of evidence, and determine upon which side evidence preponderates. Wright v. SAIF, 289 Or 323, 613 P2d 755 (1980)

 

      Consequences intended

 

      Presumption that consequences of act were intended is inappropriate where intent is element of criminal act. State v. Bartolon, 8 Or App 538, 495 P2d 772 (1972)

 

      When criminal prosecution is initiated, state is entitled to rely on presumptions that defendant is sane and intended ordinary consequences of acts. State v. Keys, 25 Or App 15, 548 P2d 205 (1976)

 

      Ownership of property

 

      Criminal defendant may rely on ownership presumption to establish expectation of privacy necessary to challenge search. State v. Statham, 55 Or App 646, 639 P2d 684 (1982)

 

      Performance of official duty

 

      Statutory presumption that tax assessor has faithfully performed assessor’s procedural duty does not extend to valuation assessor places on property. J.R. Widmer, Inc. v. Dept. of Rev., 261 Or 371, 494 P2d 854 (1972)

      Condition precedent to presumption that official duty has been regularly performed is that circumstances of particular case add some element of probability. Nyman v. City of Eugene, 286 Or 47, 593 P2d 515 (1979)

 

      Identity of name

 

      Court may declare nonidentity as matter of law only if proof of nonidentity is so conclusive that reasonable minds could not dispute matter. Lynd v. Rockwell Mfg., 276 Or 341, 554 P2d 1000 (1976)

 

      Literal identity of names is necessary to trigger presumption of identity of persons so as to present prima facie case, and mere similarity of names, without additional corroborating evidence, will not support finding of identity of persons. State v. Garrett, 281 Or 281, 574 P2d 639 (1978)

 

      Contract of marriage

 

      Burden is on party challenging the marriage to disprove, by most cogent and satisfactory evidence, validity of marriage. Franklin v. Biggs, 14 Or App 450, 513 P2d 1216 (1973), Sup Ct review denied

 

      Presumption will not be overcome by failure to produce valid marriage certificate. Franklin v. Biggs, 14 Or App 450, 513 P2d 1216 (1973), Sup Ct review denied

 

      Continuing existence

 

      Presumption that “thing once proved to exist continues as long as is usual with things of that nature” applies only to factual condition established in prior adjudication, and defendant, who had been previously committed as “mentally ill,” was not entitled to instruction on presumption phrased in terms of insanity. State v. Weller, 285 Or 457, 591 P2d 732 (1979)

 

      Where event is of easily terminable nature, presumption cannot support finding beyond reasonable doubt that event has continued. State v. Harris, 288 Or 703, 609 P2d 798 (1980)

 

Under Evidence Code

 

      Presumption that person not heard from in seven years is dead does not prohibit presuming death of person missing for shorter period of time. State v. Lerch, 63 Or App 707, 666 P2d 840 (1983), aff’d 296 Or 377, 677 P2d 678 (1984)

 

      Where mother and husband were not married at time child was born, born-in-wedlock presumptions cannot apply. Dept. of Human Resources v. Mock, 83 Or App 1, 730 P2d 553 (1986), Sup Ct review denied

 

      Presumption that writing is truly dated does not raise presumption that writing was mailed on same day as written. SAIF v. Tull, 113 Or App 449, 832 P2d 1271 (1992)

 

COMPLETED CITATIONS (for ORS 41.360 in permanent edition): Williamson v. State Acc. Ins. Fund, 6 Or App 95, 487 P2d 110 (1971)

 

ATTY. GEN. OPINIONS

 Under former similar statute (ORS 41.360)

 

      Statutory presumption that permit is issued in accordance with prescribed standards as rebuttable, (1971) Vol 35, p 844

 

LAW REVIEW CITATIONS

 

Under Evidence Code

      19 WLR 374 (1983); 62 OLR 493 (1983)

 

      40.150

(Rule 401)

 

      See also annotations under ORS 41.220 in permanent edition.

 

NOTES OF DECISIONS

 

      There are seven factors to be considered as guidelines to determine relevance or probative value of proffered scientific evidence under this rule. State v. Brown, 297 Or 404, 687 P2d 751 (1984)

 

      In prosecution under child neglect statute, ORS 163.545, evidence of whereabouts of mother and that she was drinking beer and fact that there was house fire and that children died in fire was relevant and properly admitted. State v. Goff, 297 Or 635, 686 P2d 1023 (1984)

 

      Testimony that defendant had chased another person with hammer 20 years ago was not probative of defendant’s intent at time of shooting. State v. Parks, 71 Or App 630, 693 P2d 657 (1984)

 

      Five-step analysis in weighing probative and prejudicial value of evidence is: 1) need for evidence; 2) certainty that other crime was committed by defendant; 3) strength or weakness of evidence; 4) inflammatory effect on jury; and 5) time-consuming and distracting nature of proof of other crime. State v. Johns, 301 Or 535, 725 P2d 312 (1986); State v. Kim, 111 Or App 1, 824 P2d 1161 (1992), Sup Ct review denied

 

      In determining relevance of prior crime evidence to issue of intent or absence of mistake, court should consider: 1) whether intent is part of current charged act; 2) whether prior bad act required intent; 3) whether victim was identical or of same class; 4) similarity of acts; 5) similarity of physical elements; and 6) whether evidence meeting first five criteria is unduly prejudicial or inflammatory. State v. Johns, 301 Or 535, 725 P2d 312 (1986); State v. Blanscet, 230 Or App 363, 215 P3d 924 (2009)

 

      Where inference could be drawn that defendant’s ability to drive was impaired by alcohol, trial court did not abuse its discretion by admitting evidence of officer’s observations and blood-alcohol test in prosecution of defendant for reckless driving. State v. Vorseth, 100 Or App 359, 786 P2d 217 (1990)

 

      Where defendant’s motive was not relevant to issue of whether he acted “with intent” to conspire to commit crime of burglary or “knowingly” in committing crime of burglary and theft under this section, proffered evidence was not admissible as evidence of defendant’s state of mind. State v. Troen, 100 Or App 442, 786 P2d 751 (1990), Sup Ct review denied

 

      Evidence of how parties acted after purported rescission is probative of whether they intended to rescind. Pfeifer v. DME Liquidating, Inc., 101 Or App 106, 789 P2d 266 (1990)

 

      Evidence that defendant had alleged association with gang members and that gang members used stolen cars in illegal activities was irrelevant to prove defendant’s knowledge that car was stolen. State v. Stone, 104 Or App 534, 802 P2d 668 (1990)

 

      If choice-of-evils defense is unavailable under substantive law, evidence in support of defense is irrelevant. State v. Clowes, 310 Or 686, 801 P2d 789 (1990)

 

      Trial court did not abuse its discretion in admitting evidence that defendant had told victim, his wife, that defendant had killed girlfriend, where that evidence could make it less likely victim would have consented to defendant’s entry into apartment where defendant allegedly attempted to rape her. State v. Carrillo, 108 Or App 442, 816 P2d 654 (1991), Sup Ct review denied

 

      Where evidence was insufficient to support determination that uncharged acts were sufficiently similar among themselves or to charged offenses to support rational inference of distinctiveness probative of identity to crimes charged, evidence of three prior bad acts was not relevant to prove person who committed them also committed charged offenses. State v. Westby, 117 Or App 14, 843 P2d 973 (1992), as modified by 124 Or App 265, 862 P2d 1318 (1993), Sup Ct review denied

 

      Sidewalk dedication ordinance is relevant to issue of just compensation in condemnation case. Dept. of Trans. v. Lundberg, 312 Or 568, 825 P2d 641 (1992)

 

      Documents and cash belonging to defendant together with photos of defendant’s home and bank records, standing alone proved little about who possessed marijuana in storage unit, but considered in combination with other testimony, tended to show that defendant was drug dealer, and therefore was relevant. State v. Nunez, 121 Or App 578, 855 P2d 1162 (1993)

 

      Forensic DNA testing has sufficient scientific reliability to have probative value in matters of identification. State v. Futch, 123 Or App 176, 860 P2d 264 (1993), aff’d 324 Or 297, 924 P2d 832 (1996)

 

      RFLP method of DNA analysis and resulting testimony concerning occurrence of shared trait in population was admissible. State v. Futch, 123 Or App 176, 860 P2d 264 (1993), aff’d 324 Or 297, 924 P2d 832 (1996); State v. Herzog, 125 Or App 10, 864 P2d 1362 (1993), aff’d 324 Or 294, 924 P2d 817 (1996)

 

      Where credibility of witness was called into question by defendant, testimony that defendant threatened witness during trial recess was admissible to show bias of defendant toward witness. State v. Collier, 124 Or App 100, 861 P2d 397 (1993), Sup Ct review denied

 

      Polymerase chain reaction form of DNA testing was sufficiently reliable to be relevant and probative. State v. Lyons, 124 Or App 598, 863 P2d 1303 (1993), aff’d 324 Or 256, 924 P2d 802 (1996)

 

      Evidence that defendant had previously possessed different weapon of same unique type as murder weapon was admissible to show defendant’s proclivity for possessing that type of weapon. State v. Trinh, 126 Or App 324, 868 P2d 779 (1994), Sup Ct review denied

 

      Evidence of general tendency of drivers to react to highway design in particular manner was relevant to determining likely cause of particular collision. Dyer v. R.E. Christiansen Trucking, Inc., 318 Or 391, 868 P2d 1325 (1994)

 

      Evidence addressing weaknesses in proof is directly relevant as part of case in chief and cannot be restricted to use as rebuttal evidence. State v. Galloway, 161 Or App 536, 984 P2d 934 (1999), Sup Ct review denied

 

      Physician’s diagnosis that patient is suffering from particular condition is subject to foundational requirements for scientific evidence. State v. Sanchez-Cruz, 177 Or App 332, 33 P3d 1037 (2001), Sup Ct review denied

 

      In prosecution of child sexual abuse under ORS 163.427, admission of evidence that defendant possessed two pairs of children’s underwear is relevant to show defendant had sexual interest in children. State v. Williams, 357 Or 1, 346 P3d 455 (2015)

 

      Where trial court excluded evidence of police department’s use-of-force policies, error was not harmless because evidence could have shown police officers’ motive to testify that defendant pointed air gun at them, which would protect officers from adverse employment consequences based on use of deadly force against defendant. State v. Crum, 287 Or App 541, 403 P3d 405 (2017)

 

      40.155

(Rule 402)

 

      See also annotations under ORS 42.230 in permanent edition.

 

NOTES OF DECISIONS

 

      Testimony that defendant had chased another person with hammer 20 years ago was not probative of defendant’s intent at time of shooting. State v. Parks, 71 Or App 630, 693 P2d 657 (1984)

 

      Evidence from witnesses who watched defendant’s driving for 10 to 15 minutes about 5 minutes before and two and one half miles from fatal collision was admissible under this section in prosecution for criminally negligent homicide. State v. Brinager, 96 Or App 160, 771 P2d 658 (1989), Sup Ct review denied

 

      Where testimony regarding matrix system was relevant to informant’s credibility and to issue of whether informant had “deal” with state and was acting as state’s agent, evidence was properly admitted. State v. Smith, 310 Or 1, 791 P2d 836 (1990)

 

      State’s introduction of evidence of victim’s pregnancy was relevant to prove defendant’s motive. State v. Smith, 310 Or 1, 791 P2d 836 (1990)

 

      If choice-of-evils defense is unavailable under substantive law, evidence in support of defense is inadmissible. State v. Clowes, 310 Or 686, 801 P2d 789 (1990)

 

      40.160

(Rule 403)

 

      See also annotations under ORS 45.530 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 45.530)

 

      Where existing evidence leaves issue in question, court may not exclude additional evidence as being cumulative. State v. Smith, 59 Or App 92, 650 P2d 178 (1982)

 

Under Evidence Code

 

      Factors to be considered in determining whether probative value of relevant evidence outweighs any prejudicial impact it may have are: 1) need for the evidence; 2) its persuasiveness; and 3) its inflammatory effect upon jury; citing State v. Ritchie, 50 Or App 257, 622 P2d 768 (1981). State v. Huffman, 65 Or App 594, 672 P2d 1351 (1983)

 

      Probative value of polygraph evidence is far outweighed by reasons for exclusion. State v. Brown, 297 Or 404, 687 P2d 751 (1984)

 

      In prosecution under child neglect statute, ORS 163.545, evidence of whereabouts of mother and that she was drinking beer and fact that there was house fire and that children died in fire was relevant and properly admitted. State v. Goff, 297 Or 635, 686 P2d 1023 (1984)

 

      Discretion of trial judge to exclude evidence relevant to bias or interest only obtains once sufficient facts have been established from which jury may infer bias or interest. State v. Hubbard, 297 Or 789, 688 P2d 1311 (1984); MacDonald v. Cottle, 133 Or App 35, 889 P2d 1320 (1995), Sup Ct review denied; State v. Lulay, 290 Or App 282, 414 P3d 903 (2018)

 

      Evidence of remedial measures taken by manufacturer to correct warning label before accident occurred is admissible. Hackett v. Alco Standard Co., 71 Or App 24, 691 P2d 142 (1984), Sup Ct review denied

 

      Where defendant was charged with arson in connection with burning own house, evidence of fraudulent insurance claim was not unfairly prejudicial under this rule. State v. White, 71 Or App 299, 692 P2d 167 (1984), Sup Ct review denied

 

      Where admission of defendant’s notice and withdrawal of lack of responsibility defense was not necessary evidence to offset claim that defendant’s retardation prevented defendant from making voluntary statements to police, relevance of evidence was outweighed by danger of unfair prejudice. State v. Hickman, 71 Or App 471, 692 P2d 672 (1984)

 

      Where defendant in case of attempted murder asserted self-defense and attempted to present evidence concerning “battered spouse syndrome,” trial court did not abuse its discretion in striking testimony of women’s crisis center counselor that center had received approximately 100 calls from defendant in two month period and concerning substance of calls where, inter alia, last contact with center was approximately seven months before shooting, testimony would have been cumulative of other evidence and would have prolonged trial. State v. Moore, 72 Or App 454, 695 P2d 985 (1985), Sup Ct review denied

 

      Exclusion of relevant evidence to avoid prejudice was premature where proper remedy was motion for separate trial in case where blood test was inadmissible on DUII charge but admissible on assault charge. State v. Armenta, 74 Or App 219, 702 P2d 1113 (1985)

 

      Five-step analysis in weighing probative and prejudicial value of evidence is: 1) need for evidence; 2) certainty that other crime was committed by defendant; 3) strength or weakness of evidence; 4) inflammatory effect on jury; and 5) time-consuming and distracting nature of proof of other crime. State v. Johns, 301 Or 535, 725 P2d 312 (1986); State v. Kim, 111 Or App 1, 824 P2d 1161 (1992), Sup Ct review denied

 

      Where officer saw defendant drive during same period of suspension but on later occasion than that which formed basis of trial officer’s testimony, that fact was admissible to rebut defense witness’s testimony on cross-examination that defendant did not drive during that period, because probative value of testimony outweighed other factors under this section. State v. Smith, 86 Or App 239, 739 P2d 577 (1987)

 

      Probative value of evidence submitted by state in its case in chief of defendant’s pre-arrest silence for purpose of demonstrating consciousness of guilt was outweighed by danger it would unfairly prejudice jury. State v. Pigg, 87 Or App 625, 743 P2d 770 (1987)

 

      In determining whether to admit relevant evidence of uncharged misconduct, court should: 1) assess probative value, weight and strength evidence provides to proponent’s case; 2) determine prejudicial effect and likelihood evidence will distract jury; 3) balance need for evidence against prejudicial effect; and 4) determine whether evidence should be admitted or excluded entirely or admitted only in part. State v. Mayfield, 302 Or 631, 733 P2d 438 (1987)

 

      This rule bars introduction of polygraph test results in evidence even when parties have stipulated to its admissibility. State v. Lyon, 304 Or 221, 744 P2d 231 (1987)

 

      Amendment of ORS 40.355 (Rule 609), deleting balancing of probative value against prejudicial effect makes this rule’s balancing inapplicable as to prior conviction evidence. State v. Carr, 91 Or App 673, 756 P2d 1263 (1988), Sup Ct review denied; State v. Babb, 91 Or App 676, 756 P2d 1264 (1988), Sup Ct review denied; State v. Dick, 91 Or App 294, 754 P2d 628 (1988), Sup Ct review denied; State v. King, 307 Or 332, 768 P2d 391 (1989); State v. Archer, 150 Or App 505, 947 P2d 620 (1997)

 

      In product liability “failure to warn” case, defendant’s post-injury addition of container warnings and subsequent discontinuance of product distribution was either irrelevant to care exercised before injury or was so marginally relevant, that trial court was within discretion in excluding evidence for purpose of showing what defendants did or did not know. McPike v. Enciso’s Cocina Mejicana, Inc., 93 Or App 269, 762 P2d 315 (1988)

 

      Tape recording of conversation between officer and defendant should have been edited to delete impermissible comment on witness’ credibility because prejudicial effect of officer’s opinion of credibility of complaining witness outweighed probative value of defendant’s response. State v. McQuisten, 97 Or App 517, 776 P2d 1304 (1989)

 

      Where evidence that defendant had sexually abused victim’s mother 20 years earlier was inflammatory and uncertain due to staleness, admission under this section was abuse of discretion. State v. Mason, 100 Or App 240, 785 P2d 378 (1990)

 

      Where inference could be drawn that defendant’s ability to drive was impaired by alcohol, trial court did not abuse its discretion by admitting evidence of officer’s observations and blood-alcohol test in prosecution of defendant for reckless driving. State v. Vorseth, 100 Or App 359, 786 P2d 217 (1990)

 

      Exclusion of evidence of prior cocaine use by victim of alleged rape was not abuse of discretion by trial court. State v. Smith, 101 Or App 483, 791 P2d 500 (1990)

 

      Because defendant’s defense rested heavily on expert’s opinion there was need for state to present evidence that expert’s opinion was not entitled to much weight, so probative value of evidence was not substantially outweighed by danger of unfair prejudice. State v. Shearer, 101 Or App 543, 792 P2d 1215 (1990), Sup Ct review denied

 

      Where defendant was charged with DUII and witness testified defendant had poor balance and was staggering, medical records showing that defendant had undergone extensive leg surgery three years prior was not remote and went to basis of establishing defense. State v. Robinson, 104 Or App 613, 802 P2d 688 (1990)

 

      Where danger that jury would have found defendant guilty of aggravated murder and in effect, condemned him to death on basis that he had wild look and looked sleazy when he tipped nude dancer is infinitesimally slight, especially given trial court’s instruction, danger of unfair prejudice did not substantially outweigh probative value of witness’ testimony identifying defendant as last person with whom victim was seen. State v. Nefstad, 309 Or 523, 789 P2d 1326 (1990)

 

      Where defendant can viably describe conversation with police officer without mention of polygraph examination and defendant was not entitled to suppression of voluntary inconsistent statements merely because they were made during prepolygraph test interview, sanitized statements are admissible. State v. Hart, 309 Or 646, 791 P2d 125 (1990)

 

      Where there was extremely remote possibility that jury would take testimony about matrix system into consideration in determining defendant’s guilt or sentence, probative value of testimony was not “substantially outweighed” by “danger of unfair prejudice, confusion of the issues or misleading the jury,” and evidence was properly admitted. State v. Smith, 310 Or 1, 791 P2d 836 (1990)

 

      Where state’s introduction of evidence of victim’s pregnancy was prejudicial to defendant’s case but highly probative of defendant’s motive, trial court did not abuse its discretion in allowing evidence and denying defendant’s motion for mistrial. State v. Smith, 310 Or 1, 791 P2d 836 (1990)

 

      Trial court did not abuse discretion in finding that unfair prejudice did not substantially outweigh probative value where court admitted evidence that defendant, rape victims’ grandfather, was having sexual intercourse with his daughter, victims’ mother. State v. Hall, 108 Or App 12, 814 P2d 172 (1991), Sup Ct review denied

 

      When defendant contended that health of spouse depended on illegal use of marijuana, evidence of baggies and scales and testimony of police officer that baggies and scales indicate that defendant grew marijuana for non-personal use were relevant to prove manufacture of controlled substance. State v. Carsner, 117 Or App 406, 844 P2d 257 (1992), Sup Ct review denied

 

      Polygraph report was admissible when offered only to show effect of test on person’s state of mind. Fromdahl and Fromdahl, 314 Or 496, 840 P2d 683 (1992)

 

      Where evidence showed state of mind of defendant, admission of victim’s prior sexual abuse allegation against defendant was proper. State v. Bannister, 118 Or App 252, 846 P2d 1189 (1993)

 

      Trial court did not abuse its discretion by admitting X-rated video tapes when tapes were offered to corroborate testimony of complaining witnesses and not to show defendant’s propensity to commit sexual abuse. State v. Rood, 118 Or App 480, 848 P2d 128 (1993), Sup Ct review denied

 

      Forensic DNA testing is generally admissible. State v. Futch, 123 Or App 176, 860 P2d 264 (1993), aff’d 324 Or 297, 924 P2d 832 (1996)

 

      Use of monomorphic probe in forensic DNA testing was reliable test method. State v. Futch, 123 Or App 176, 860 P2d 264 (1993), aff’d 324 Or 297, 924 P2d 832 (1996)

 

      Probative value of results of polymerase chain reaction type of DNA testing, expressed as percentage of population having same gene characteristic as crime scene sample and defendant, was not outweighed by possibility of prejudice. State v. Lyons, 124 Or App 598, 863 P2d 1303 (1993), aff’d 324 Or 256, 924 P2d 802 (1996)

 

      To determine admissibility of statements made in context of polygraph examination, court must determine first whether statement expresses defendant’s belief or recollection as to independently relevant fact and secondly whether statement can be redacted to exclude reference to polygraph examination without significantly altering meaning of original statement. State v. Harberts, 315 Or 408, 848 P2d 1187 (1993)

 

      Evidence that defendant was in violation of parole conditions at time of incident was admissible to establish motive for assault on police officer. State v. Hampton, 317 Or 251, 855 P2d 621 (1993)

 

      Where prosecution stressed that possession of weapon was legal and court gave proper limiting instruction, evidence that defendant previously possessed different weapon of same unique type as murder weapon was not unfairly prejudicial. State v. Trinh, 126 Or App 324, 868 P2d 779 (1994), Sup Ct review denied

 

      Where criminal defendant proffers out-of-court photographic identification evidence to impeach credibility of eyewitness, nine factors are relevant for determining admissibility under Rule 401/403 balancing test. State v. Johanesen, 319 Or 128, 873 P2d 1065 (1994)

 

      Testimony of judge as nonexpert witness regarding judge’s personal observation of events or judge’s communications to attorneys during prior trial at which judge presided is not per seunfairly prejudicial. Sansone v. Garvey, Schubert & Barer, 188 Or App 206, 71 P3d 124 (2003), Sup Ct review denied

 

      Court may exclude relevant evidence of witness bias on grounds of undue prejudice only if court gives party opportunity to introduce other evidence from which bias may be inferred. State v. Tyon, 226 Or App 428, 204 P3d 106 (2009)

 

      Where expert testifies about matter that tends to prejudice jury and testimony does not inform jury about anything that jury cannot determine on its own, testimony is inadmissible. State v. Southard, 347 Or 127, 218 P3d 104 (2009)

 

      Where eyewitness identification evidence exists, court must examine relative reliability of evidence to determine probative value of identification and to determine and limit risk of unfair prejudice. State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012)

 

      Where no suggestive pretrial state procedures were administered to witness, inherent suggestiveness of trial setting that may be prejudicial in general sense does not necessarily make a first time in-court eyewitness identification unfairly prejudicial as to require exclusion under this rule. State v. Hickman, 355 Or 715, 330 P3d 551 (2014)

 

      Trial court’s decision to admit evidence of defendant’s use of racial slur was error when trial court did not assess prejudicial effect under this section of admitting statement, when statement had no probative value and when state could not argue for any legal basis under which to admit statement. State v. Roberts, 291 Or App 124, 418 P3d 41 (2018)

 

 

LAW REVIEW CITATIONS

 

Under Evidence Code

      25 WLR 847 (1989); 68 OLR 238 (1989); 78 OLR 315 (1999)

 

      40.170

(Rule 404)

 

NOTES OF DECISIONS

 

      Evidence of prior incidents during which police told defendant that his neighbors could see him exposing himself in his living room window was properly admitted to rebut defendant’s contention that he did not know he could be seen. State v. Louis, 296 Or 57, 672 P2d 708 (1983)

 

      “Other crimes” evidence that defendant was present when state witness manufactured illegal drug in defendant’s home was admissible where defendant’s testimony minimized extent of relationship with witness, who testified defendant confided in him regarding defendant’s arson plans. State v. Gardner, 67 Or App 404, 679 P2d 306 (1984), Sup Ct review denied

 

      Suppression of evidence tying jacket worn by perpetrator of crime to defendant as perpetrator of other offenses because state did not need evidence and could get jacket in evidence in another manner without risk of prejudice inherent in “other crimes” evidence was erroneous. State v. Browder, 69 Or App 564, 687 P2d 168 (1984), Sup Ct review denied

 

      Under circumstances of case, admission of evidence of defendant’s prior sex acts was proper. State v. Fears, 69 Or App 606, 688 P2d 88 (1984), Sup Ct review denied

 

      Where defendant’s possession of key to another stolen vehicle was introduced as basis of inference that defendant knew vehicle in which he was riding was taken and being used unlawfully, evidence of defendant’s possession of key was properly admitted. State v. Phelps, 73 Or App 68, 698 P2d 43 (1985)

 

      Defendant, charged with first degree assault, who testified concerning earlier altercations with victim to show victim’s aggressiveness did not, by testimony of a specific instance of peaceful conduct, put his character for peacefulness in issue. State v. Peacock, 75 Or App 217, 706 P2d 982 (1985)

 

      It was reversible error to permit witness to testify as to alleged prior act of sodomy by defendant where testimony was relevant only to defendant’s propensity to commit current alleged act of sodomy. State v. Bovee, 75 Or App 544, 706 P2d 1005 (1985)

 

      Evidence of defendant’s prior conviction for rape was relevant in trial on charge of attempted kidnapping to show defendant’s criminal intent. State v. Morgan, 80 Or App 747, 724 P2d 334 (1986), Sup Ct review denied

 

      In evaluating prior crime evidence on issue of intent or absence of mistake, court should determine: whether presently charged act requires proof of intent, whether prior act required intent, whether victim in prior act was same victim or in same class as victim in present case, whether prior act was same as or similar to acts in present crime, and whether probative value of evidence outweighs Rule 403 concerns. State v. Harris, 81 Or App 574, 726 P2d 943 (1986), Sup Ct review denied; State v. Johns, 301 Or 535, 725 P2d 312 (1986)

 

      Court has discretion to admit prior crime evidence under any theory of logical relevance other than solely to prove both character of person and that person acted in conformity therewith. State v. Johns, 301 Or 535, 725 P2d 312 (1986); State v. Bolt, 108 Or App 746, 817 P2d 1322 (1991); State v. Herzog, 125 Or App 10, 864 P2d 1362 (1993), aff’d 324 Or 294, 924 P2d 817 (1996)

 

      “Character” refers to disposition or propensity to commit certain crimes, wrongs or acts. State v. Johns, 301 Or 535, 725 P2d 312 (1986)

 

      Where state offered hearsay statement which implied defendant assaulted someone other than named victim during same incident, trial court did not err in admitting statement because it was not offered solely to prove defendant’s character or that he acted in conformity with that character but as means of identifying defendant as participant in crime. State v. Ferguson, 84 Or App 565, 735 P2d 3 (1987)

 

      Where officer saw defendant drive during same period of suspension but on later occasion than that which formed basis of trial officer’s testimony, that fact was admissible to rebut defense witness’s testimony or cross-examination that defendant did not drive during that period, because testimony was not offered to establish that defendant drove car, but to impeach credibility of defense witness. State v. Smith, 86 Or App 239, 739 P2d 577 (1987)

 

      Defendant may introduce evidence concerning character trait only if it is trait pertinent to offense charged. State v. Bailey, 87 Or App 664, 743 P2d 1123 (1987)

 

      Where plaintiff in defamation action sought damages for harm to his business reputation, plaintiff did not put his business character in issue within meaning of this section and evidence of specific instances of plaintiff’s business misconduct was not admissible. Shirley v. Freunscht, 303 Or 234, 735 P2d 600 (1987)

 

      “Other crimes evidence” offered to prove identity must show such similarity, in manner or means, as to constitute distinctive “signature” of perpetrator, but “signature” crime need not be composed solely of unique or novel elements. State v. Bernson, 93 Or App 115, 760 P2d 1362 (1988)

 

      Evidence of defendant’s encounters with child victim which occurred after alleged rape admissible as relevant to show why child had not reported original sexual assault. State v. Zybach, 308 Or 96, 775 P2d 318 (1989)

 

      Evidence of prior violence by plaintiff’s husband directed against persons other than plaintiff was not relevant to show that she feared him and testified in accordance with his version of events. James v. General Motors of Canada, Ltd., 101 Or App 138, 790 P2d 8 (1990), Sup Ct review denied

 

      Admission of testimony that defendant had been “out of line” with friend of witness on prior occasion did not prejudice defendant because it was not reasonable possibility that jury inferred from testimony that girlfriend of witness had been raped by defendant. State v. Smith, 101 Or App 483, 791 P2d 500 (1990)

 

      Where state moved to allow testimony by victim about sexual contacts with defendant on several occasions, evidence was admissible to demonstrate sexual predisposition of defendant for this particular victim, but not to demonstrate that defendant had character trait or propensity to engage in sexual misconduct generally. State v. McKay, 309 Or 305, 787 P2d 479 (1990)

 

      Where neither prosecutor’s question nor description by witness of defendant in response suggested anything concerning defendant’s propensity to engage in certain kinds of behavior, his disposition, or his general personality traits, testimony was not character evidence or uncharged misconduct evidence. State v. Nefstad, 309 Or 523, 789 P2d 1326 (1990)

 

      To degree that future dangerousness depends on character, defendant’s character has been placed “in issue” and evidence of pertinent specific instances of conduct is admissible. State v. Montez, 309 Or 564, 789 P2d 1352 (1990)

 

      In trespass case, evidence of dispute between defendant and another neighbor and evidence of similar damage to that neighbor’s land was admissible to show defendant’s motive, opportunity, intent, preparation, plan or absence of mistake or accident. Gibson v. Tzantarmas, 108 Or App 270, 815 P2d 221 (1991)

 

      Lawsuits irrelevant to present case served to suggest that defendant is litigious or person of bad character, thus prejudicing defendant’s right to have jury determine liability and damages only by relevant facts. Gibson v. Tzantarmas, 108 Or App 270, 815 P2d 221 (1991)

 

      Trial court properly admitted evidence in aggravated murder case of prior crime by defendant where numerous points of similarity existed between the two crimes, few dissimilarities existed, and distinctiveness or unusual characteristics of modus earmarked the two crimes as handiwork of defendant. State v. Pinnell, 311 Or 98, 806 P2d 110 (1991)

 

      Evidence regarding sawed-off shotgun used in prior robbery to which defendant confessed was relevant in defendant’s trial for murder committed during course of robbery where shotgun’s appearance was so distinctive that its use instantly earmarked both robberies as handiwork of same person. State v. Walton, 311 Or 223, 809 P2d 81 (1991)

 

      In defendant’s trial for attempted rape and attempted kidnapping, evidence of prior bad acts involving picking up girls in same area was sufficiently similar to allow jury to infer defendant intended to attempt kidnap and rape and was probative to show motive or plan. State v. Painter, 113 Or App 337, 833 P2d 303 (1992), Sup Ct review denied

 

      Where evidence was insufficient to support determination that uncharged acts were sufficiently similar among themselves or to charged offenses to support rational inference of distinctiveness probative of identity to crimes charged, evidence of three prior bad acts was not relevant to prove person who committed them also committed charged offenses. State v. Westby, 117 Or App 14, 843 P2d 973 (1992), as modified by 124 Or App 265, 862 P2d 1318 (1993), Sup Ct review denied

 

      Evidence of other crimes is admissible if independently relevant for noncharacter purpose, if sufficient proof shows uncharged misconduct was committed by defendant and if probative value of uncharged misconduct is not substantially outweighed by OEC 403 considerations. State v. Johnson, 313 Or 189, 832 P2d 443 (1992); State v. Langley, 314 Or 511, 840 P2d 691 (1992); State v. Middleton, 131 Or App 275, 884 P2d 873 (1994)

 

      Evidence in rape case that defendant had engaged in sexual intercourse with adult victim since victim was child was admissible to show why actions of victim did not constitute consent. State v. Bartley, 121 Or App 301, 854 P2d 996 (1993), Sup Ct review denied

 

      Exclusion of character evidence applies to prior bad acts of third parties, not just defendant or victim. State v. Bockorny, 125 Or App 479, 866 P2d 1230 (1993); 126 Or App 504, 869 P2d 349 (1994), Sup Ct review denied

 

      Evidence of defendant’s prior acts of physical abuse toward child admissible in kidnapping trial to show intent and motive. State v. Barkley, 315 Or 420, 846 P2d 390 (1993)

 

      Expert testimony comparing character traits of defendant with typical criminal character traits was scientific evidence subject to requirement of establishing probative value. State v. Lawson, 127 Or App 392, 872 P2d 986 (1994), Sup Ct review denied

 

      Prior bad acts by victim were admissible to show defendant had reasonable belief supporting claim of self-defense. State v. Lunow, 131 Or App 429, 885 P2d 731 (1994)

 

      Evidence of series of identical acts before and after murder was admissible under “doctrine of chances” where concealment of identity of person committing acts was alleged motive for murder. State v. Wieland, 131 Or App 582, 887 P2d 368 (1994), Sup Ct review denied

 

      In considering whether similar prior act is criminal signature, court must weigh both similarities and dissimilarities between acts. State v. Rinkin, 141 Or App 355, 917 P2d 1035 (1996)

 

      Where offer of proof contains both admissible and inadmissible material, court may reject entire offer. State v. Thomas, 149 Or App 557, 945 P2d 1056 (1997)

 

      Where defendant was convicted of first crime, time lapse and geographic distance between that crime and later crimes are not significant factors in showing signature behavior. State v. Barnum, 157 Or App 68, 970 P2d 1214 (1998), aff’d 333 Or 297, 39 P3d 178 (2002)

 

      Specific instances of misconduct are admissible to show state of mind of actor. State v. Stevens, 328 Or 116, 970 P2d 215 (1998)

 

      Provision making relevant evidence admissible except as provided by constitution or certain evidentiary rules does not change traditional standards for determining relevance of evidence showing propensity to commit crime. State v. Dunn, 160 Or App 422, 981 P2d 809 (1999), Sup Ct review denied

 

      Exception for signature-crime evidence pertains only to establishing who committed undisputed crime, not whether crime actually occurred. State v. Baughman, 164 Or App 715, 995 P2d 551 (2000)

 

      Where malice was material element of crime, defendant’s testimony regarding nonmalicious motive for behavior did not constitute character evidence. State v. Dan, 172 Or App 645, 20 P3d 829 (2001)

 

      Defendant’s propensity to act in sexually proper manner in all varying situations of life is trait of character. State v. Enakiev, 175 Or App 589, 29 P3d 1160 (2001)

 

      Where evidence is admissible under some but not all of grounds specified within rule, and defendant does not cite specific grounds within rule allowing admission of evidence, ruling of inadmissibility is not error. State v. Ryel, 182 Or App 423, 51 P3d 8 (2002), Sup Ct review denied

 

      Where defendant is alleged to have acted recklessly, fact that prior similar act by defendant had adverse consequences is relevant for inferring that defendant had heightened subjective awareness of risk. State v. Hardman, 196 Or App 522, 102 P3d 722 (2004)

 

      1997 amendment limiting trial court authority to exclude relevant evidence may not be applied if trial is for crime committed prior to effective date of amendment. State v. Shaw, 338 Or 586, 113 P3d 898 (2005)

 

      Essential question is not whether evidence of prior bad acts fits within expressly mentioned category of exceptions, but whether and how evidence is logically relevant to noncharacter issue in case. State v. Johnson, 340 Or 319, 131 P3d 173 (2006)

 

      Provision authorizing submission of evidence of other crimes, wrongs or acts committed by defendant does not violate federal due process. State v. Moore/Coen, 349 Or 371, 245 P3d 101 (2010)

 

      Applicability of provision governing admissibility of evidence of other crimes, wrongs or acts is not limited to conduct of criminal defendant. State v. Prange, 247 Or App 254, 268 P3d 749 (2011)

 

      In prosecution for child sexual abuse under ORS 163.427, admission of “other crimes evidence” under this rule, offered to prove defendant’s sexual purpose, which is element of charged crimes, requires court to determine whether risk of unfair prejudice posed by evidence outweighs probative value of evidence under OEC 403 (ORS 40.160). State v. Williams, 357 Or 1, 346 P3d 455 (2015)

 

      Legislature intended subsection 4 of this rule to supersede subsection 3 in criminal case except to extent required by state or federal constitution. State v. Williams, 357 Or 1, 346 P3d 455 (2015)

 

      When read with ORS 40.160 (Rule 403), trial court may exclude evidence when, in court’s discretion, court determines that probative value of evidence is substantially outweighed by danger of unfair prejudice, and trial court must exclude evidence, as matter of law, that would render trial fundamentally unfair and violate Due Process Clause. State v. Baughman, 361 Or 386, 393 P3d 1132 (2017)

 

      For prior acts to be admissible to prove motive based on class of victim, motive must be based on victims’ membership in same class. State v. Tena, 362 Or 514, 412 P3d 175 (2018)

 

      Prior acts may be admissible under doctrine of chances to demonstrate that act occurred intentionally, not whether it occurred it all. State v. Tena, 362 Or 514, 412 P3d 175 (2018)

 

LAW REVIEW CITATIONS: 25 WLR 829 (1989); 29 WLR 927 (1993); 78 OLR 315 (1999); 52 WLR 291 (2016)

 

      40.175

(Rule 405)

 

NOTES OF DECISIONS

 

      Defendant, charged with first degree assault, who testified concerning earlier altercations with victim to show victim’s aggressiveness did not, by testimony of specific instance of peaceful conduct, put his character for peacefulness in issue. State v. Peacock, 75 Or App 217, 706 P2d 982 (1985)

 

      Question “Is there any particular kind of lie which (the victim) has a reputation for telling?” is functional equivalent of asking witness to relate specific instances of conduct as proof of character trait of victim for untruthfulness and is improper under this rule. State v. Marshall, 312 Or 367, 823 P2d 961 (1991)

 

      On cross-examination, reference to specific instance of conduct must be based on reliable evidence but need not be based on admissible evidence. In re Tichenor, 340 Or 108, 129 P3d 690 (2006)

 

      For purposes of referencing specific instance of conduct on cross-examination, concern, suspicion or belief that conduct happened, without explanation or support apart from equivocal act, does not constitute reliable information to support reasonable belief that misconduct occurred. Holbrook v. Amsberry, 289 Or App 226, 410 P3d 289 (2017)

 

LAW REVIEW CITATIONS: 78 OLR 315 (1999)

 

      40.180

(Rule 406)

 

NOTES OF DECISIONS

 

      Admissibility of habit evidence is within discretion of trial court. Charmley v. Lewis, 77 Or App 112, 711 P2d 984 (1985), aff’d302 Or 324, 729 P2d 567 (1986)

 

      Plaintiff’s regular practice of crossing particular intersection within unmarked crosswalk was admissible evidence of habit, as it was evidence of frequent and invariable or consistent response that was specific and distinctive. Charmley v. Lewis, 302 Or 324, 729 P2d 567 (1986)

 

      Behavior can only achieve status of habit under this rule if situation giving rise to it reasonably could be responded to in variety of ways, each having unique characteristics by which it can be readily distinguished. Charmley v. Lewis, 302 Or 324, 729 P2d 567 (1986)

 

      “Distinctive” requires that behavior at least be semi-automatic and recurring response, beyond mere obedience to law, by actor confronted with particular situation to which variety of definable responses would be more or less equally reasonable. Charmley v. Lewis, 302 Or 324, 729 P2d 567 (1986)

 

      40.185

(Rule 407)

 

NOTES OF DECISIONS

 

      Evidence of remedial measures taken by manufacturer to correct warning label before accident occurred is admissible. Hackett v. Alco Standard Co., 71 Or App 24, 691 P2d 142 (1984), Sup Ct review denied

 

      This rule does not exclude evidence of change of language of warning sign after accident as change would not have made accident less likely to occur and no evidence indicated change was caused by accident. Van Gordon v. PGE, 298 Or 497, 693 P2d 1285 (1985)

 

      This section applies to strict liability cases as well as negligence cases. Krause v. American Aerolights, 307 Or 52, 762 P2d 1011 (1988)

 

      Investigation and report concerning cause of event are not excludable as remedial measures because they are not capable of having been taken prior to event. Ensign v. Marion County, 140 Or App 114, 914 P2d 5 (1996)

 

LAW REVIEW CITATIONS: 68 OLR 235 (1989)

 

      40.190

(Rule 408)

 

      See also annotations under ORS 41.810 in permanent edition.

 

NOTES OF DECISIONS

 

      Informing jury that plaintiff had settled with another potential defendant prior to suit so jury would not speculate on absence was not offering evidence of settlement “for another purpose” and so was improper. Holger v. Irish, 316 Or 402, 851 P2d 1122 (1993)

 

      Workers’ Compensation Board correctly considered offer to settle spouse’s derivative claim in determining reasonableness of proposed settlement of claimant’s underlying claim. Weems v. American International Adjustment Co., 123 Or App 83, 858 P2d 914 (1993), aff’d 319 Or 140, 874 P2d 72 (1994)

 

      Admission of prior pleadings did not cause evidence of settlement with second defendant to become independently relevant to claim. Pounds v. Holy Rosary Medical Center, 127 Or App 221, 872 P2d 437 (1994)

 

      In determining whether to award attorney fees, court may consider offer of compromise as evidence of objective reasonableness of parties and attorneys. Bidwell and Bidwell, 173 Or App 288, 21 P3d 161 (2001)

 

      Party may offer evidence of completed settlement agreement to establish that agreement limited scope or amount of current claim. Cyberco Holdings, Inc. v. Con-Way Transportation Services, Inc., 212 Or App 576, 159 P3d 359 (2007), Sup Ct review denied

 

      Where plaintiff offered settlement communications to show real estate “market conditions” and “fair value” of properties, those communications are inadmissible under this section because they were offered to calculate amount of plaintiff’s claim against defendant. Washington Federal Savings and Loan v. Cheung, 275 Or App 618, 365 P3d 652 (2015)

 

      40.200

(Rule 410)

 

LAW REVIEW CITATIONS: 74 OLR 1365 (1995)

 

      40.205

(Rule 411)

 

NOTES OF DECISIONS

 

      Evidence of insurer participation in insurance pooling agreement is not excludable evidence that insurer was insured against liability. Goddard v. Farmers Insurance Co., 202 Or App 79, 120 P3d 1260 (2005), modified 203 Or App 744, 126 P3d 682 (2006), aff’d 344 Or 232, 179 P3d 645 (2008)

 

      40.210

(Rule 412)

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 163.475)

 

      The prohibition on the introduction of evidence of the complainant’s prior sexual conduct was held unconstitutional as a denial of the right of confrontation when the prior conduct was relevant in showing a motive for a false accusation of rape. State v. Jalo, 27 Or App 845, 557 P2d 1359 (1976)

 

      In trial of defendant charged with rape, sodomy and sexual abuse, this section did not prevent state from introducing evidence of prior sexual acts between defendant and two victims, both of whom were under age of twelve at time incidents allegedly occurred. State v. Eggleston, 31 Or App 9, 569 P2d 1088 (1977), Sup Ct review denied

 

      Evidence of particular sexual conduct by victim is admissible where relevant for purpose of eroding victim credibility. State v. Lantz, 44 Or App 695, 607 P2d 197 (1980), Sup Ct review denied

 

      Provision of this section which authorizes in camera hearing to determine admissibility of evidence of victim’s prior sexual conduct does not violate right to public trial guaranteed by Article I, Sections 10 and 11 of the Oregon Constitution. State v. Blake, 53 Or App 906, 633 P2d 831 (1981); State v. MacBale, 353 Or 789, 305 P3d 107 (2013)

 

Under Evidence Code

 

      Trial court’s denial of defendant’s request to cross-examine complaining witness because defendant had not complied with notice requirements of this rule was erroneous interpretation of rule and reversible error. State v. Reiter, 65 Or App 304, 672 P2d 56 (1983)

 

      Where evidence of alleged prior sexual relations between defendant and complainant are relevant to defendant’s claim of jealously and anger as motive falsely to charge rape, evidence is admissible under this rule. State v. Morgan, 66 Or App 675, 675 P2d 513 (1984)

 

      Evidence that victim’s relationship with another man involved “bondage and discipline” has no relevance to complainant’s alleged motive to falsify and is not admissible. State v. Bass, 69 Or App 166, 683 P2d 1040 (1984), Sup Ct review denied

 

      Evidence of previous false accusations of sexual abuse by alleged victim is not evidence of past sexual behavior within meaning of Rape Shield Law and is not inadmissible. State v. LeClair, 83 Or App 121, 730 P2d 609 (1986), Sup Ct review denied

 

      Trial court erred in addressing admissibility of items of evidence because particular items did not concern “past sexual behavior” of victim. State v. Wright, 97 Or App 401, 776 P2d 1294 (1989), Sup Ct review denied

 

      Evidence of prior sexual abuse of victim is “past sexual behavior” but was not admissible because it is relevant neither to motive for victim to accuse this particular defendant nor to rebut any scientific or medical evidence that state offered. State v. Wright, 97 Or App 401, 776 P2d 1294 (1989), Sup Ct review denied

 

      Evidence of victim’s hostility toward defendant and accusation of sexual abuse against another man by victim’s friend is not admissible because it is not “sexual behavior.” State v. Wattenbarger, 97 Or App 414, 776 P2d 1292 (1989), Sup Ct review denied

 

      Evidence of victim’s abuse by other people after act with which defendant was charged but before trial is “past sexual behavior” but is not admissible because it does not establish bias or motive for victim to falsely accuse defendant. State v. Wattenbarger, 97 Or App 414, 776 P2d 1292 (1989), Sup Ct review denied

 

      Evidence that does not concern victim’s past sexual behavior is not properly admitted or excluded in pretrial hearing. State v. Weeks, 99 Or App 287, 782 P2d 430 (1989), Sup Ct review denied

 

      Hearing to determine admissibility of evidence of victim’s past sexual behavior is required to be held in judge’s chamber but public is not categorically excluded from hearing. State ex rel Davey v. Frankel, 312 Or 286, 823 P2d 394 (1991)

 

      Notice requirement for presentation of sexual behavior evidence applies to both direct examination and cross-examination. State v. Lajoie, 316 Or 63, 849 P2d 479 (1993)

 

      Admission of evidence to show motive does not require showing that victim has ill will toward defendant. State v. Beden, 162 Or App 178, 986 P2d 94 (1999)

 

      State interest served by rape-shield law can outweigh defendant’s interest served by constitutional right to compulsory process. State v. Beeler, 166 Or App 275, 999 P2d 497 (2000), Sup Ct review denied

 

      Admissibility of evidence regarding victim’s past sexual behavior is analyzed under three-step progression that considers form in which evidence is offered, whether evidence falls within listed exception and whether probative value outweighs prejudicial effect. State v. Fowler, 225 Or App 187, 200 P3d 591 (2009), Sup Ct review denied

 

      Where defendant, convicted of rape in first degree and sodomy in first degree, sought to introduce evidence of victim’s prior sexual behavior toward other individuals on same night as incident leading to convictions, evidence was “past sexual behavior” because this section does not distinguish between behavior that occurred long before incident and shortly before incident, and thus was inadmissible without applicable exception. State v. Alcantar, 283 Or App 114, 388 P3d 1124 (2016), Sup Ct review denied

 

LAW REVIEW CITATIONS

 

Under former similar statute (ORS 163.475)

 

      55 OLR 493-518 (1976)

 

Under Evidence Code

 

      28 WLR 127 (1991); 71 OLR 497 (1992)

 

      40.225

(Rule 503)

 

      See also annotations under ORS 44.040 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 44.040)

 

      Testimony of defendant’s former attorney that he had informed defendant of date of trial did not violate attorney-client privilege. State v. Bilton, 36 Or App 513, 585 P2d 50 (1978)

 

      Privilege does not apply to prevent disclosure of creation or existence of attorney-client relationship or fact that client consulted with attorney about matter. State v. Bilton, 36 Or App 513, 585 P2d 50 (1978)

 

Under Evidence Code

 

      Notification of defendant by former counsel of date set for appearance for arraignment is admissible over objection of defendant that it is protected by attorney-client privilege. State v. Ogle, 297 Or 84, 682 P2d 267 (1984)

 

      “Representative of a client,” as defined in this rule, refers only to representatives of clients that are corporations or similar business entities. State v. Jancsek, 302 Or 270, 730 P2d 14 (1986); Little v. Dept. of Justice, 130 Or App 668, 883 P2d 272 (1994), Sup Ct review denied

 

      Where defendant’s lawyer had in his possession letter written by defendant to third person, trial court’s order to produce letter did not violate defendant’s lawyer-client privilege because letter was not between persons described in this rule. State v. Jancsek, 302 Or 270, 730 P2d 14 (1986)

 

      Under this rule, disclosure of dates on which attorney conferred with client did not fall within attorney-client privilege because it did not call for disclosure of content of any communication. State v. Keenan/Waller, 91 Or App 481, 756 P2d 51 (1988), aff’d 307 Or 515, 771 P2d 244 (1989)

 

      In excess liability action, trial court properly applied attorney client privilege to documents relating to assignment agreement between insured and his assignees, depositions and file materials related to underlying medical malpractice case and material in files of insured’s attorney relating to excess liability action. Stumpf v. Continental Casualty Co., 102 Or App 302, 794 P2d 1228 (1990)

 

      Release of otherwise privileged communication between attorney and client pursuant to request for production under ORCP 43 constitutes waiver of privilege as there is no requirement that client expressly consent to waive privilege. Goldsborough v. Eagle Crest Partners, Ltd., 105 Or App 499, 805 P2d 723 (1991), aff’d314 Or 336, 838 P2d 1069 (1992)

 

      Threshold basis for conducting in camera review of allegedly privileged attorney-client communications does not have to be based on evidence independent of contested communications. State v. Charlesworth/Parks, 151 Or App 100, 951 P2d 153 (1997), Sup Ct review denied

 

      Legal advice to representative of client is “from” client’s lawyer if originating with lawyer, even though it may be communicated to recipient by other individuals covered by privilege. State ex rel OHSU v. Haas, 325 Or 492, 942 P2d 261 (1997)

 

      “Representative of the client” includes employee of any rank, whether or not regular contact with lawyer is part of job. State ex rel OHSU v. Haas, 325 Or 492, 942 P2d 261 (1997)

 

      Before trial court may engage in in camera review at request of party opposing privilege on basis of crime-fraud exception, party must present evidence to support reasonable belief that review may yield evidence that establishes exception’s applicability. Frease v. Glazer, 330 Or 364, 4 P3d 56 (2000)

 

      Party opposing in camera review of privileged material may seek mandamus immediately to prevent review or following review may seek mandamus based upon: 1) insufficient evidence to support reasonable belief that review would reveal applicability of crime-fraud exception; or 2) court determination that exception applies to materials reviewed. Frease v. Glazer, 330 Or 364, 4 P3d 56 (2000)

 

      Opinion of nontestifying expert based upon observation independent of confidential communications or confidential information does not become inadmissible due solely to expert being employed by party. State v. Riddle, 330 Or 471, 8 P3d 980 (2000)

 

      Nonexistence of privilege extends to all actions, suits and proceedings alleging breach of duty by lawyer, including petitions for post-conviction relief. Petersen v. Palmateer, 172 Or App 537, 19 P3d 364 (2001), Sup Ct review denied

 

      To have common interest, parties must share legal interest. Port of Portland v. Oregon Center for Environmental Health, 238 Or App 404, 243 P3d 102 (2010), Sup Ct review denied

 

      To have common interest, parties do not need to have identical interests. Port of Portland v. Oregon Center for Environmental Health, 238 Or App 404, 243 P3d 102 (2010), Sup Ct review denied

 

      Communications between attorneys who are members of firm and group of attorneys at same firm that serves as in-house counsel for attorneys may be protected by attorney-client privilege. Crimson Trace Corp. v. Davis Wright Tremaine LLP, 355 Or 476, 326 P3d 1181 (2014)

 

      Subsection (4) of this section includes complete list of exceptions to attorney-client privilege and does not include fiduciary exception to privilege. Crimson Trace Corp. v. Davis Wright Tremaine LLP, 355 Or 476, 326 P3d 1181 (2014)

 

      Breach of duty exception to attorney-client privilege permits disclosures of information only as reasonably necessary for lawyer to defend against breach of duty allegations. Longo v. Premo, 355 Or 525, 326 P3d 1152 (2014)

 

 

LAW REVIEW CITATIONS

 

Under Evidence Code

      19 WLR 633 (1983); 24 WLR 160 (1988); 46 WLR 539 (2010)

 

      40.230

(Rule 504)

 

      See also annotations under ORS 44.040 in permanent edition.

 

NOTES OF DECISIONS

 

      Where defendant telephoned Dammasch State Hospital and told receptionist that he wanted to speak to a doctor because he “just killed a man” communication was not confidential and, therefore, was not privileged; subsequent statements to psychiatrist were not communications made for purpose of diagnosis or treatment where psychiatrist’s purpose was to keep defendant on telephone until police arrived rather than to establish psychotherapist-patient relationship and, therefore, those statements were not privileged. State v. Miller, 67 Or App 637, 680 P2d 676 (1984)

 

      Defendant hospital’s duty of confidentiality did not extend beyond patient to patient’s family where facts disclosed did not concern family and did not arise out of any family involvement in patient’s treatment. Doe v. Portland Health Centers, Inc., 99 Or App 423, 782 P2d 446 (1989)

 

      Where legislature intended to exclude person who is specifically consulted for drug and alcohol dependency from definition of psychotherapist, mother could not claim psychotherapist-patient privilege as to evidence about her drug and alcohol treatment in termination of parental rights case. State ex rel Juv. Dept. v. Ashley, 312 Or 169, 818 P2d 1270 (1991); 112 Or App 153, 826 P2d 130 (1992)

 

      Abrogation of privilege by ORS 419B.040 with regard to child abuse cases applies to psychotherapist communication with patient accused of abuse. State ex rel Juvenile Dept. v. Spencer, 198 Or App 599, 108 P3d 1189 (2005)

 

LAW REVIEW CITATIONS: 22 WLR 607 (1986)

 

      40.235

(Rule 504-1)

 

      See also annotations under ORS 44.040 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 44.040)

 

      When a party fails to object to the privileged testimony of one physician, she waives her physician-patient privilege as to all other testimony and evidence on the same subject. Triplett v. Bd. of Social Protection, 19 Or App 408, 528 P2d 563 (1974)

 

      Where patient calls his physician as a witness to prove a matter which the physician would only have learned in the course of his employment, this constitutes a waiver as to related privileged communications. State ex rel Juv. Dept. v. Brown, 19 Or App 427, 528 P2d 569 (1974), Sup Ct review denied

 

      In an action for wrongful death, defendant may not ask for depositions of decedent’s physician if the physician has submitted a written report of medical findings. Woosley v. Dunning, 268 Or 233, 520 P2d 340 (1974)

 

      Once the patient has intentionally offered or taken testimony of one doctor, either on trial or by deposition, the privilege is terminated for all purposes relating to the injury or illness which was the subject of that doctor’s testimony, including hospital records. State ex rel Calley v. Olsen, 271 Or 369, 532 P2d 230 (1975)

 

      The privilege is waived when a patient or his personal representative takes the deposition of a treating doctor. State ex rel Calley v. Olsen, 271 Or 369, 532 P2d 230 (1975)

 

      The beneficiary of decedent’s life insurance policy had authority to waive the privilege for purposes of an action to enforce payment under the policy. State ex rel Calley v. Olsen, 271 Or 369, 532 P2d 230 (1975)

 

      Privilege applies to psychiatric records of parent in juvenile court proceeding to terminate parental rights. State ex rel Juvenile Dept., Clatsop County v. Martin, 271 Or 603, 533 P2d 780 (1975)

 

Under Evidence Code

 

      Plaintiff’s voluntary act of deposing defendant-treating physician whom he was suing in malpractice action constituted waiver of plaintiff’s physician-patient privilege with respect to other treating physicians concerning same condition. State ex rel Grimm v. Ashmanskas, 298 Or 206, 690 P2d 1063 (1984)

 

      Where person consults psychotherapist for professional assistance and reasonably believes psychotherapist is willing to establish professional relationship, fact that psychotherapist has ulterior purpose for interview will not prevent person from claiming privilege. State v. Miller, 300 Or 203, 709 P2d 225 (1985), cert. denied, 475 US 1141

 

      Secretary-receptionist responsible for screening telephone calls to psychiatrist on duty at state hospital is included in this privilege. State v. Miller, 300 Or 203, 709 P2d 225 (1985), cert. denied, 475 US 1141

 

      Physician-patient privilege does not apply in workers’ compensation contested case claim hearing. Booth v. Tektronix, 312 Or 463, 823 P2d 402 (1991)

 

      Where psychotherapy treatment requires defendant to prepare numerous written assignments, psychotherapist-patient privilege applies to assignments. State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsideration 318 Or 28, 861 P2d 1012 (1993)

 

      Defendant waived psychotherapist-patient privilege when defendant voluntarily disclosed significant part of psychotherapist-patient communications by submitting documents in earlier trial. State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsideration 318 Or 28, 861 P2d 1012 (1993)

 

      40.240

(Rule 504-2)

 

      See also annotations under ORS 44.040 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 44.040)

 

      Where public health nurse became acquainted with appellant through multi-faceted social service program and was not engaged in furnishing nursing care to appellant, nurse’s testimony in termination of parental rights action as to her observations and opinions acquired during interviews and home visits with appellant was not covered by privilege of this section. State ex rel Juvenile Dept. v. Banker, 47 Or App 1125, 615 P2d 1168 (1980), Sup Ct review denied

 

      Correction: The permanent edition citation for Nielson v. Bryson should be 257 Or 179, 477 P2d 714 (1970).

 

LAW REVIEW CITATIONS

 

Under former similar statute (ORS 44.040)

 

      11 WLJ 329 (1975); 55 OLR 459-473 (1976)

 

      40.255

(Rule 505)

 

      See also annotations under ORS 44.040 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 44.040)

 

      A bigamous or otherwise void marriage does not support a claim of marital privilege. State v. Kelsey, 28 Or App 255, 558 P2d 1299 (1977)

 

      The marital privilege is available in probation revocation proceedings. State v. Schier, 47 Or App 1075, 615 P2d 1147 (1980)

 

      A party does not waive marital privilege when privileged subject is opened for first time on cross-examination. State v. Schier, 47 Or App 1075, 615 P2d 1147 (1980)

 

Under Evidence Code

 

      Invocation of spousal privilege in front of jury is inherently prejudicial; privilege was violated where spouse repeatedly asserted it in front of jury and was ordered to testify anyway. State v. Quintero, 110 Or App 247, 823 P2d 981 (1991), Sup Ct review denied

 

      For purposes of exception to spousal privilege, whether “offense” or “attempted offense” is against person or property of spouse depends on specific conduct that resulted in defendant being charged, not crime with which defendant is charged. State v. Jansen, 198 Or App 260, 108 P3d 92 (2005)

 

      Intent of communicating spouse controls whether spousal communications are confidential. State v. Serrano, 346 Or 311, 210 P3d 892 (2009)

 

      40.260

(Rule 506)

 

NOTES OF DECISIONS

 

      Trial court committed harmful error in admitting defendant’s confession to Mormon minister in trial for first degree rape, because communication was protected under clergy-penitent privilege. State v. Cox, 87 Or App 443, 742 P2d 694 (1987)

 

LAW REVIEW CITATIONS: 76 OLR 173 (1997); 85 OLR 481 (2006)

 

      40.265

(Rule 508a)

 

      See annotations under ORS 44.030 in permanent edition.

 

      40.270

(Rule 509)

 

      See annotations under ORS 44.040 in permanent edition.

 

      40.275

(Rule 510)

 

NOTES OF DECISIONS

 

      Trial court properly denied defendant’s motion to disclose identity of alleged confidential informant under this provision, because person whose identity defendant sought was not unknown informant but was eye witness whose identity state had no duty to disclose because it did not intend to call person as witness. State v. Pena, 108 Or App 171, 813 P2d 1134 (1991), Sup Ct review denied

 

      Informant’s name may be disclosed, even for in camera disclosure, only if trial court is not satisfied that information was received from informer reasonably believed to be reliable or credible. State v. Young, 108 Or App 196, 816 P2d 612 (1991), Sup Ct review denied

 

      Trial court may disclose identity of informant only if informant provides evidence useful to defendant’s defense. State v. Wood, 114 Or App 601, 836 P2d 176 (1992), Sup Ct review denied; State v. Vatland, 123 Or App 577, 860 P2d 820 (1993), Sup Ct review denied

 

      40.280

(Rule 511)

 

      See also annotations under ORS 44.030 in permanent edition.

 

NOTES OF DECISIONS

 

      Under this rule defendant waived psychotherapist-patient privilege when he called his former mother-in-law to testify about an incident of alcohol-induced amnesia and, therefore, it was not error for psychiatrist who had examined defendant at counsel’s request to testify about defendant’s alcohol dependency and to state conclusion that defendant nevertheless could have acted with conscious objective to commit the acts at the time in question. State v. Corgain, 63 Or App 26, 663 P2d 773 (1983), Sup Ct review denied

 

      Father waived privilege of confidentiality in psychological report by furnishing it to his expert in preparation for trial and calling expert to testify about father’s mental condition. Boon and Boon, 100 Or App 354, 786 P2d 215 (1990)

 

      In excess liability action, trial court properly applied attorney client privilege to documents relating to assignment agreement between insured and his assignees, depositions and file materials related to underlying medical malpractice case and material in files of insured’s attorney relating to excess liability action. Stumpf v. Continental Casualty Co., 102 Or App 302, 794 P2d 1228 (1990)

 

      Factors court may consider in determining whether waiver has occurred include whether disclosure was inadvertent, whether any attempt was promptly made to remedy error and whether preservation of privilege will be unfair to proponent. GPL Treatment, Ltd. v. Louisiana-Pacific Corp., 133 Or App 633, 894 P2d 470 (1995), aff’don other grounds, 323 Or 116, 914 P2d 682 (1996)

 

      To prevent waiver of privilege during perpetuation deposition, party must object to disputed testimony both at time deposition is taken and at time offered at trial. State ex rel OHSU v. Haas, 325 Or 492, 942 P2d 261 (1997)

 

      Where plaintiff in medical malpractice action received proper notice of adverse party’s discovery deposition and during deposition answered without objection questions regarding plaintiff’s medical treatment, plaintiff did not offer self as witness nor voluntarily disclose privileged communications, so plaintiff did not waive physician-patient privilege. Barrier v. Beaman, 361 Or 223, 390 P3d 1048 (2017)

 

LAW REVIEW CITATIONS: 46 WLR 539 (2010)

 

      40.290

(Rule 513)

 

NOTES OF DECISIONS

 

      This Rule prohibits finder of fact in civil action from drawing inference from assertion of claim of Fifth Amendment privilege not to testify. John Deere Co. v. Epstein, 307 Or 348, 769 P2d 766 (1989)

 

      40.310 to 40.335

 

NOTES OF DECISIONS

 

      Where Oregon law not Washington Deadman’s Statute governed admissibility of testimony in interpleader action brought by insurance company in District of Oregon, testimony of insured’s widow and insurance agent was admissible to determine beneficiary. Equitable Life Assur. Soc. of the U.S. v. McKay, 861 F2d 221 (9th Cir. 1988)

 

      40.310

(Rule 601)

 

      See also annotations under ORS 44.020 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 44.020)

 

      Testing of witness competency by cross-examiner is properly limited to questions about past or present medical treatment that relate specifically to witness ability to perceive, remember and relate matters about which witness testified. State v. Longoria, 17 Or App 1, 520 P2d 912 (1974), Sup Ct review denied

 

Under Evidence Code

 

      Because this rule, like statutory predecessors, addresses only competency of witness, it does not make inapplicable case law rule that, if child is otherwise competent, it is error to refuse to permit child to testify. Nichols and Fleischman, 67 Or App 256, 677 P2d 731 (1984)

 

      Where Oregon law not Washington Deadman’s Statute governed admissibility of testimony in interpleader action brought by insurance company in District of Oregon, testimony of insured’s widow and insurance agent was admissible to determine beneficiary. Equitable Life Assur. Soc. of the U.S. v. McKay, 861 F 2d 221 (9th Cir. 1988)

 

      Determination that four-year old victim was competent to testify was matter committed to sound discretion of trial court and discretion was not abused. State v. Bauman, 98 Or App 316, 779 P2d 185 (1989)

 

      40.315

(Rule 602)

 

      See also annotations under ORS 44.060 in permanent edition.

 

NOTES OF DECISIONS

 

      Evidence that state may have used coercive or unduly suggestive methods in questioning witness does not provide grounds for court to hold pretrial hearing on reliability of witness’ statements and testimony. State v. Bumgarner, 219 Or App 617, 184 P3d 1143 (2008), Sup Ct review denied

 

      When defendant raises challenge under this section, proponent of evidence must offer other evidence that witness had adequate opportunity to personally observe or perceive facts forming testimony sufficient to demonstrate “personal knowledge” in order to dispel concerns that eyewitness testimony can be led or prompted by outside sources. State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012)

 

      40.320

(Rule 603)

 

      See also annotations under ORS 44.330 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 44.330)

 

      Signing affidavit in presence of notary or official authorized to administer oath is sufficient to constitute oath. Blackburn v. Motor Vehicles Division, 33 Or App 397, 576 P2d 1267 (1978), Sup Ct review denied

 

 

LAW REVIEW CITATIONS

 

Under Evidence Code

      28 WLR 127 (1991)

 

      40.330

(Rule 605)

 

      See also annotations under ORS 44.050 in permanent edition.

 

NOTES OF DECISIONS

 

      Judge who presided at dissolution proceeding between son and daughter-in-law of testator and who observed demeanor of testator when she testified at trial was not precluded from later testifying in will contest challenging mental capacity of testator. Larson v. Naslund, 73 Or App 699, 700 P2d 276 (1985)

 

      40.335

(Rule 606)

 

      See annotations under ORS 44.050 in permanent edition.

 

      40.345

(Rule 607)

 

NOTES OF DECISIONS

 

      Where witness surprised prosecution by testifying contrary to prior confession, and state, under this Rule, introduced confession in order to impeach witness’ credibility, trial court did not err in admitting confession where testimony was crucial to state’s case. State v. Warren, 88 Or App 462, 745 P2d 822 (1987), Sup Ct review denied

 

      Prohibition against calling witness for primary purpose of eliciting impeachment testimony does not apply where recanted statement constituting impeachment testimony is admissible on other grounds. State v. Swett, 158 Or App 28, 972 P2d 909 (1999), Sup Ct review denied

 

      40.350

(Rule 608)

 

      See also annotations under ORS 45.590, 45.600 and 45.620 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 45.590)

 

      General use of questions as to drug use should not be allowed to impeach a witness, but may be used to discover if the witness was under the influence of drugs at the time to which she is testifying. State v. Goodin, 8 Or App 15, 492 P2d 287 (1971), Sup Ct review denied

 

      Party may not use prior inconsistent statement to impeach own witness unless witness gives testimony prejudicial to party. State v. Ward, 16 Or App 162, 517 P2d 1069 (1974)

 

      This section does not prohibit a party from impeaching a witness it has produced by showing bias or interest. State v. Estlick, 269 Or 75, 523 P2d 1029 (1974)

 

      Where party attempts to use prior inconsistent statement to impeach own witness on collateral matter, and witness denies making statement, party must accept answer of witness. State v. Jones, 279 Or 55, 566 P2d 867 (1977)

 

      Defendant may not call state’s witness as an adverse witness solely for the purpose of impeachment. State v. Hill, 32 Or App 299, 573 P2d 1273 (1978)

 

      Party is allowed to introduce evidence discreditable to witness where evidence is not introduced for purpose of discrediting witness testimony. State v. Gilbert, 282 Or 309, 577 P2d 939 (1978)

 

      Surprise is not prerequisite to impeachment of own witness, but is factor in determining whether party has suffered prejudice allowing impeachment. State v. Mills, 39 Or App 85, 591 P2d 396 (1979)

 

Under former similar statute (ORS 45.600)

 

      An individual may be cross-examined about specific acts of crime for the purpose of showing his bias without violating this section. State v. Goodin, 8 Or App 15, 492 P2d 287 (1971), Sup Ct review denied

 

      Evidence obtained from an invalid search which is inadmissible as direct evidence can not be used to impeach the credibility of the defendant. State v. Spunaugle, 11 Or App 583, 504 P2d 756 (1972)

 

      Right to impeach adverse witness arises from fact that witness has testified, regardless of length or content of testimony. State v. Lawson, 53 Or App 232, 631 P2d 816 (1981)

 

Under former similar statute (ORS 45.620)

 

      State may buttress credibility of accomplice-witness during case in chief since accomplice is impeached as matter of law under [former] ORS 17.250 and [former] ORS 136.550. State v. Estlick, 14 Or App 288, 511 P2d 1250 (1973), aff’d 269 Or 75, 523 P2d 1029 (1974)

 

      Testimony that merely contradicts testimony of another witness is not attack on credibility of that witness. State v. Allen, 276 Or 527, 555 P2d 443 (1976)

 

Under Evidence Code

 

      Evidence of specific instances of conduct by defendant was admissible for purpose of contradicting direct testimony of defendant on specific matter. State v. Schober, 67 Or App 385, 678 P2d 746 (1984)

 

      Expert testimony, made before victim testified, that sex abuse victim was able to perceive and relate accurately a sexual contact was not opinion as to whether victim would testify truthfully and was admissible evidence relating to witness’ credibility. State v. Padilla, 74 Or App 676, 704 P2d 524 (1985)

 

      Trial court did not err in forbidding defendant to cross-examine victim about other alleged false accusations of sexual abuse because this rule forbids any inquiry or cross-examination into specific instances of conduct for impeachment purposes and specific instances of conduct include false statements. State v. LeClair, 83 Or App 121, 730 P2d 609 (1986), Sup Ct review denied

 

      Assuming defendant’s wife was opining that victim, as witness, was presently lying, such testimony was not equivalent of testifying as to opinion of character of victim for truthfulness. State v. Carr, 302 Or 20, 725 P2d 1287 (1986)

 

      Psychotherapist may not render opinion on credibility of witness. State v. Milbradt, 305 Or 621, 756 P2d 628 (1988); State v. Remme, 173 Or App 546, 23 P3d 374 (2001)

 

      Where this section forbids inquiry or cross-examination into specific incidents of conduct in order to impeach, trial court did not err when it excluded evidence that victim made allegedly false accusations of sexual misconduct against another man. State v. Hendricks, 101 Or App 469, 791 P2d 139 (1990), Sup Ct review denied

 

      Police officer’s assessment of reliability of information supplied by informant is inadmissible comment on informant’s credibility. State v. Wyatt, 102 Or App 413, 794 P2d 1243 (1990); State v. Walker, 140 Or App 472, 915 P2d 1039 (1996)

 

      Statute limits admissibility of evidence of other crimes, wrongs or acts to attack credibility of witness, but such evidence may be introduced for other purposes. State v. Bolt, 108 Or App 746, 817 P2d 1322 (1991)

 

      In personal injury action, defendant’s statement to workers’ compensation official investigating accident that he did not know plaintiff was not admissible to show that defendant putatively had tendency to be untruthful. Mulvahill v. Huddleston, 110 Or App 405, 822 P2d 754 (1991)

 

      Trial court properly excluded psychiatrist’s testimony that defendant told truth about not remembering stabbing. State v. Wille, 115 Or App 47, 839 P2d 712 (1992), aff’d 317 Or 487, 858 P2d 128 (1993)

 

      When witness had little recent personal contact with victim or with people associated with victim, trial court did not abuse its discretion by excluding opinion of witness. State v. Caffee, 116 Or App 23, 840 P2d 720 (1992), Sup Ct review denied

 

      While one trial witness may not testify about credibility of another trial witness, rule does not preclude admission of relevant out-of-court statement phrased in form of opinion as to credibility of another witness. State v. Odoms, 313 Or 76, 829 P2d 690 (1992)

 

      Testimony or exhibit may not, explicitly and directly, contain opinion as to trial witness’s credibility. State v. Charboneau, 323 Or 38, 913 P2d 308 (1996); State v. Wilson, 323 Or 498, 918 P2d 826 (1996)

 

      Once witness’s character for truthfulness is attacked, ability to present evidence supporting truthfulness becomes entitlement. State v. Reynolds, 324 Or 550, 931 P2d 94 (1997)

 

      Where state attacks credibility of defendant on rebuttal in reasonably unforeseen manner and credibility is central to defense, denial of opportunity for surrebuttal is error. State v. Wilkins, 175 Or App 569, 29 P3d 1144 (2001), Sup Ct review denied

 

      Confrontation Clause of Oregon Constitution does not give defendant right to attack or support credibility of complaining witness through extrinsic evidence. State v. Driver, 192 Or App 395, 86 P3d 53 (2004), Sup Ct review denied

 

      Court may not exercise discretion to exclude impeachment witness testimony based on court assessment of impeachment witness credibility. State v. Mackey, 290 Or App 272, 414 P3d 443 (2018).

 

COMPLETED CITATIONS (for ORS 45.590 in permanent edition): State v. Howard, 6 Or App 230, 486 P2d 1301 (1971), Sup Ct review denied

 

      40.355

(Rule 609)

 

      See also annotations under ORS 45.600 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 45.600)

 

      Introduction of documents other than the judgment order to show conviction of a crime was error because the extraneous documents contained evidence of particular wrongful acts. State v. Akles, 9 Or App 501, 497 P2d 1207 (1972)

 

      The prosecutor may ask a defense witness the names of the crimes of which he has been convicted and the time and place of conviction. State v. Longoria, 17 Or App 1, 520 P2d 912 (1974), Sup Ct review denied

 

      A juvenile witness may not be impeached by evidence that he admitted acts which would be a crime if committed by an adult. State v. Burr, 18 Or App 494, 525 P2d 1067 (1974)

 

      Pendency of an appeal from a criminal conviction does not bar use of the conviction for impeachment. State v. Forsyth, 20 Or App 624, 533 P2d 176 (1975), Sup Ct review denied

 

      The legislature intended by enacting this section to depart from the common law by removing the disqualification of a witness for a crime and by providing that a witness may be impeached by proof of conviction of a crime. Smith v. Durant, 271 Or 643, 534 P2d 955 (1975)

 

      “Crime” means any crime and includes both felonies and misdemeanors. Smity v. Durant, 271 Or 643, 534 P2d 955 (1975)

 

      Evidence of violations of municipal ordinances the violation of which is punishable by incarceration is admissible for impeachment purposes. State v. Bunse, 27 Or App 299, 555 P2d 1269 (1976)

 

      The court has no discretion to deny impeachment of a witness by proof of prior conviction, as distinguished from prior arrest. State v. Bunse, 27 Or App 299, 555 P2d 1269 (1976)

 

      Evidence of prior conviction was admissible notwithstanding that pretrial negotiations statute (ORS 135.435) making statements part of plea discussion inadmissible was applicable under circumstances. State v. Aldridge, 33 Or App 37, 575 P2d 675 (1978)

 

      Trial court did not err in permitting prosecution to question defendant about prior conviction for crime which has since been removed from Criminal Code and which occurred twelve years before this trial. State v. Mack, 37 Or App 487, 587 P2d 516 (1978), Sup Ct review denied

 

Under Evidence Code

 

      Under this section, admission of evidence of prior burglary convictions was not error even though crimes were similar to that charged and defendant’s testimony was important to fair determination of issues presented. State v. Carden, 58 Or App 655, 650 P2d 97 (1982), Sup Ct review denied

 

      Trial court erred in failing to declare mistrial where: 1) during defendant’s trial on charges of sexual abuse and criminal trespass, prosecutor asked defendant whether he had been convicted of “strong arm rape” in 1972; 2) trial court and prosecutor knew before trial prosecutor did not have certified copy of any conviction; and 3) defendant had, in fact, been convicted of contributing to sexual delinquency of a minor, a misdemeanor not involving false statement and, therefore, not admissible to impeach. State v. Jenkins, 63 Or App 858, 666 P2d 869 (1983)

 

      Where Class C felony conviction is given misdemeanor treatment by sentencing judge, it is still admissible under paragraph (1)(a) of this rule for impeachment purposes because it was punishable as felony. State v. Smith, 67 Or App 311, 677 P2d 715, aff’d 298 Or 173, 691 P2d 89 (1984)

 

      Theft by taking is not a conviction involving false statement within meaning of portion of this section allowing evidence of prior conviction if crime involved false statement; to be admissible offense must include element of consciously misleading true owner or failing to reveal true ownership. State v. Reitz, 75 Or App 82, 705 P2d 762 (1985), Sup Ct review denied

 

      Trial court’s reliance on then newly amended version of this rule did not subject defendant to ex post facto application of law in violation of his constitutional rights, because amendments did not make defendant’s act greater crime or impose greater punishment or permit conviction on lesser or different evidence. State v. Carr, 91 Or App 673, 756 P2d 1263 (1988), Sup Ct review denied; State v. Babb, 91 Or App 676, 756 P2d 1264 (1988), Sup Ct review denied

 

      Amendment of this rule, deleting balancing of probative value against prejudicial effect, makes ORS 40.160 (Rule 403) balancing inapplicable as to prior conviction evidence. State v. Carr, 91 Or App 673, 756 P2d 1263 (1988); State v. Babb, 91 Or App 676, 756 P2d 1264 (1988), Sup Ct review denied; State v. Dick, 91 Or App 294, 754 P2d 628 (1988), Sup Ct review denied; State v. King, 307 Or 332, 768 P2d 391 (1989); State v. Archer, 150 Or App 505, 947 P2d 620 (1997)

 

      Theft in second degree is crime involving dishonesty. State v. Gallant, 307 Or 152, 764 P2d 920 (1988)

 

      Where defendant filed motion for mistrial, did not request limiting instruction and none was given, reference to prior victim and her age by prosecutor was not sufficiently prejudicial to require mistrial. State v. Schwab, 95 Or App 593, 771 P2d 277 (1989)

 

      This rule is applicable in civil cases. Boger v. Norris & Stevens, Inc., 109 Or App 90, 818 P2d 947 (1991), Sup Ct review denied

 

      Where existence of prior conviction was established for impeachment purposes, court erred in preventing disclosure to jury of actual offense committed. State v. Venegas, 124 Or App 253, 862 P2d 529 (1993), Sup Ct review denied

 

      To bring constitutional challenge, defendant must demonstrate how operation of this rule prevented or diminished constitutional protections. State v. Busby, 315 Or 292, 844 P2d 897 (1993)

 

      Trial courts should rule on admissibility of prior crime impeachment evidence as soon as possible after issue is raised. State v. Busby, 315 Or 292, 844 P2d 897 (1993)

 

      Trial court may exclude evidence of prior convictions offered to impeach if it is needless presentation of cumulative evidence, distinguishing State v. King, 307 Or 332, 768 P2d 391 (1989). State v. Pratt, 316 Or 561, 853 P2d 827 (1993)

 

      Exception for municipal or justice court convictions was eliminated under 1986 amendment notwithstanding that ballot measure did not indicate text deletion. State v. Linn, 131 Or App 487, 885 P2d 721 (1994), Sup Ct review denied

 

      Release from confinement occurs when person is released from incarceration, not when person is released from post-prison supervision. State v. Lopez, 241 Or App 670, 250 P3d 984 (2011)

 

      Fifteen year limitation on admissibility of evidence of conviction is measured from date on which witness testifies. State v. Lopez, 241 Or App 670, 250 P3d 984 (2011)

      For purpose of determining whether period of more than 15 years has elapsed, phrase “confinement imposed for that conviction” refers to any confinement that has casual connection to original conviction. State v. Rowland, 245 Or App 240, 262 P3d 1158 (2011), Sup Ct review denied

 

COMPLETED CITATIONS (for ORS 45.600 in permanent edition): State v. Howard, 6 Or App 230, 486 P2d 1301 (1971), Sup Ct review denied

 

LAW REVIEW CITATIONS

 

Under former similar statute (ORS 45.600)

 

      54 OLR 431-442 (1975)

 

Under Evidence Code

 

      28 WLR 127 (1991)

 

      40.360

(Rule 609-1)

 

NOTES OF DECISIONS

 

      Where defense sought to examine police officer concerning his knowledge of standard police department procedures employed against officers who use unnecessary force, failure to permit this testimony was reversible error where purpose of examination was to test officer for bias and corruption. State v. Hubbard, 61 Or App 350, 657 P2d 707 (1983), aff’d 297 Or 789, 688 P2d 1311 (1984)

 

      Condition in plea agreement that witness testify truthfully was inadmissible because irrelevant to showing lack of bias or interest. State v. Eby, 296 Or 63, 673 P2d 522 (1983)

 

      Where evidence of bias, that does not consist of conduct or statements of witness, is not subject to foundation requirements of this section, court erred by not allowing plaintiff to introduce evidence that major witness for defendants was employed by one of them. James v. General Motors of Canada, Ltd., 101 Or App 138, 790 P2d 8 (1990), Sup Ct review denied

 

      Statute limits admissibility of evidence of other crimes, wrongs or acts to attack credibility of witness, but such evidence may be introduced for other purposes. State v. Bolt, 108 Or App 746, 817 P2d 1322 (1991)

 

      When defendant had basis for asserting that witness made deal with police, trial court erred by not allowing defendant to ask witness in offer of proof about arrest record. State v. Rodriguez, 115 Or App 281, 840 P2d 711 (1992)

 

      Court may exclude relevant evidence of witness bias on grounds of undue prejudice only if court gives party opportunity to introduce other evidence from which bias may be inferred. State v. Tyon, 226 Or App 428, 204 P3d 106 (2009); State v. Haugen, 349 Or 174, 243 P3d 31 (2010)

 

      “Public record” under this section includes Oregon Judicial Information Network (OJIN) case register because Oregon courts must keep case register and use OJIN record for this purpose. State v. Thomas, 257 Or App 770, 308 P3d 270 (2013)

 

LAW REVIEW CITATIONS: 28 WLR 127 (1991)

 

      40.365

(Rule 610)

 

NOTES OF DECISIONS

      Prohibition is not limited to examination regarding particular religious tenets. State v. Duncan, 131 Or App 1, 883 P2d 913 (1994), Sup Ct review denied

 

      Inquiry is not permissible to re-establish credibility where veracity of witness has been placed in issue. State v. Duncan, 131 Or App 1, 883 P2d 913 (1994), Sup Ct review denied

 

      40.370

(Rule 611)

 

      See also annotations under ORS 45.530, 45.550, 45.560 and 45.570 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 45.530)

 

      Where proffered testimony was relevant and material to issues in case, and only one other witness had testified as to such issue, proffered evidence was not cumulative and its exclusion was improper. Northwestern Mutual Insurance Company v. Peterson, 280 Or 773, 572 P2d 1023 (1977)

 

Under Evidence Code

 

      Discretion of trial judge to control scope of cross-examination does not allow exclusion of evidence offered to impeach witness for bias or interest. State v. Hubbard, 297 Or 789, 688 P2d 1311 (1984)

 

      Where, on direct examination, defendant’s witness had testified that money bags appeared to contain money, on cross-examination prosecutor could ask witness what defendant had said at that time because question was relevant to witness’ knowledge of matter about which he had testified on direct examination and answer was admissible for that purpose. State v. Hart, 84 Or App 160, 733 P2d 469 (1987)

 

      Court of Appeals could not address propriety of limiting cross-examination in trial court, because defendant made no offer of proof and failed to raise issue at trial. State v. Affeld, 307 Or 125, 764 P2d 220 (1988)

 

      In absence of ruling that evidence in dissolution action was or would be irrelevant or redundant, it was error for trial court to summarily end trial and deny husband opportunity to complete his cross-examination and presentation of his case in chief. Howell-Hooyman and Hooyman, 113 Or App 548, 833 P2d 328 (1992)

 

      Cross-examination and redirect examination are not limited to facts stated on direct examination, but extend to matters that limit, explain, or qualify those facts, or that rebut or modify inferences drawn from those facts. State v. Wirfs, 250 Or App 269, 281 P3d 616 (2012), Sup Ct review denied

 

COMPLETED CITATIONS (for ORS 45.570 in permanent edition): State v. Williams, 6 Or App 189, 487 P2d 100 (1971), Sup Ct review denied

 

      40.375

(Rule 612)

 

      See annotations under ORS 45.580 in permanent edition.

 

      40.380

(Rule 613)

 

      See also annotations under ORS 45.610 and 45.630 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 45.610)

 

      Prior consistent statement of witness impeached by prior inconsistent statements was admissible where peculiar circumstances indicated relevance. State v. Knoke, 14 Or App 187, 512 P2d 1353 (1973)

 

Under former similar statute (ORS 45.630)

 

      A foundation must be laid before a witness can be impeached by an offer of evidence that the witness has engaged in conduct showing bias or interest. State v. Dowell, 274 Or 547, 547 P2d 619 (1976)

 

Under Evidence Code

 

      Trial court did not err when it excluded testimony of person who allegedly heard victim’s mother say that victim was “pathological liar” because mother had already testified that, although she now believed victim was telling truth, she had previously thought him to be untruthful. State v. Shearer, 101 Or App 543, 792 P2d 1215 (1990), Sup Ct review denied

 

COMPLETED CITATIONS (for ORS 45.610 in permanent edition): State v. Obremski, 5 Or App 302, 483 P2d 467 (1971), Sup Ct review denied; State v. Atkison, 6 Or App 68, 485 P2d 1117 (1971), Sup Ct review denied

 

LAW REVIEW CITATIONS

 

Under Evidence Code

      19 WLR 395 (1983); 28 WLR 127 (1991)

 

      40.385

(Rule 615)

 

      See also annotations under ORS 45.510 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 45.510)

 

      When one party moves to exclude witnesses and the other party voices no objection the motion should always be granted. State v. Bishop, 7 Or App 558, 492 P2d 509 (1971)

 

      When the motion is opposed, the witnesses should be excluded unless there are sufficient reasons relevant to the purpose of the trial for not excluding witnesses. State v. Bishop, 7 Or App 558, 492 P2d 509 (1971)

 

      Defendant is not prejudiced by failure to exclude witness if testimony of witness is totally unrelated to testimony of prior witnesses. State v. Roberts, 47 Or App 323, 614 P2d 139 (1980)

 

Under Evidence Code

 

      A violation of an exclusion order is not, of itself, sufficient to disqualify a defense witness in a criminal case and the trial court cannot exclude the testimony based upon this ground alone. State v. Burdge, 295 Or 1, 664 P2d 1076 (1983)

 

      Where overlapping testimony of two witnesses did not concern contested issues, failure to exclude witnesses was harmless error. State v. Cetto, 66 Or App 337, 674 P2d 66 (1984), Sup Ct review denied

 

      Failure to make motion until after testimony has started is not good cause for denying motion. State v. Cetto, 66 Or App 337, 674 P2d 66 (1984), Sup Ct review denied; State v. Larson, 139 Or App 294, 911 P2d 953 (1996), aff’d 325 Or 15, 933 P2d 958 (1997)

 

      Refusal to strike testimony of defendant’s experts as sanction for defendant’s revealing daily transcripts to experts in violation of order excluding witnesses was within court’s discretion. Siegfried v. Pacific Northwest Development Corp., 102 Or App 57, 793 P2d 330 (1990)

 

      Allowing investigating officer to remain in courtroom after trial court determined that state had established that officer’s presence was essential to prosecution under this section did not violate defendant’s right to cross-examine and to confront witness against him under Article I, section 11 of the Oregon Constitution. State v. Alexander, 105 Or App 566, 805 P2d 743 (1991)

 

      Plaintiff who is unable to comprehend, meaningfully participate in proceedings, or assist lawyer in presentation of case may be excluded from liability portion of bifurcated trial if court determines plaintiff’s presence would be unfairly prejudicial. Bremner v. Charles, 312 Or 274, 821 P2d 1080 (1991)

 

      Assertion that fiance of murder victim lived with victim did not alone qualify fiance as victim of criminal case not subject to exclusion. State v. Stookey, 119 Or App 487, 850 P2d 1167 (1993), Sup Ct review denied

 

      City police officer who investigates and files state criminal charge is equivalent of state officer for purpose of exemption from exclusion. State v. Cooper, 319 Or 162, 874 P2d 822 (1994); 130 Or App 209, 880 P2d 514 (1994), Sup Ct review denied

 

      Erroneous denial of motion does not create presumption of prejudice to defendant upon judicial review. State v. Larson, 139 Or App 294, 911 P2d 953 (1996), aff’d 325 Or 15, 933 P2d 958 (1997)

 

      Corporation is entitled to only one corporate representative at pretrial deposition of corporate witnesses. Washington County Assessor v. West Beaverton Congregation of Jehovah’s Witnesses, Inc., 18 OTR 226 (2005)

 

      Corporation may not designate different corporate representative for separate depositions of corporate witnesses. Washington County Assessor v. West Beaverton Congregation of Jehovah’s Witnesses, Inc., 18 OTR 226 (2005)

 

      Exclusion of corporate witness from deposition of corporate representative requires that deposing party comply with court rules related to filing of protective order. Washington County Assessor v. West Beaverton Congregation of Jehovah’s Witnesses, Inc., 18 OTR 226 (2005)

 

      40.405

(Rule 701)

 

NOTES OF DECISIONS

 

      Witness’s statement that stain observed on defendant’s kitchen floor was fecal material was admissible because rationally based on his work experience and helpful in determination of a fact in issue, namely, whether child was strangled in defendant’s apartment. State v. Lerch, 63 Or App 707, 666 P2d 840 (1983), aff’d 296 Or 377, 677 P2d 678 (1984)

 

      Although opinion testimony by lay witness must be based on personal perceptions, while expert witness may testify from facts made known at or before the hearing, lay witness and expert witness may testify as to the same subject matter. State v. Lerch, 296 Or 377, 677 P2d 678 (1984)

 

      Where statement is admissible as admission of adverse party, opinion rule is inapplicable and trial court erred in excluding defendant’s statement. Washington v. Taseca Homes, Inc., 101 Or App 607, 792 P2d 453 (1990), aff’d 310 Or 783, 802 P2d 70 (1990)

 

      While one trial witness may not testify about credibility of another trial witness, rule does not preclude admission of relevant out-of-court statement phrased in form of opinion as to credibility of another witness. State v. Odoms, 313 Or 76, 829 P2d 690 (1992)

 

      Witness’s inference may be rationally drawn notwithstanding that perceptions from which inference is drawn are susceptible to more than one plausible interpretation and would support more than one reasonable inference. State v. Barnes, 208 Or App 640, 145 P3d 261 (2006)

 

      Appropriate standard of review of trial court’s determination that witness is qualified to testify as expert is review for errors of law. State v. Dunning, 245 Or App 582, 263 P3d 372 (2011)

 

      Where eyewitness identification evidence is presented, proponent of evidence must establish by preponderance of evidence that identification is based on permissible evidentiary basis of which witness has personal knowledge and that identification is helpful to determine face in issue. State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012)

 

LAW REVIEW CITATIONS: 19 WLR 421 (1983)

 

      40.410

(Rule 702)

 

NOTES OF DECISIONS

 

      Guidelines for determining relevance or probative value of proffered scientific evidence are: 1) general acceptance in field; 2) expert’s qualifications and stature; 3) use made; 4) potential for error; 5) existence of specialized literature; 6) novelty; and 7) reliance on subjective interpretation. State v. Brown, 297 Or 404, 687 P2d 751 (1984)

 

      Expert testimony that merely tells jury what legal conclusion to reach is not admissible under this rule. French v. Barrett, 84 Or App 52, 733 P2d 89 (1987)

 

      Expert testimony concerning standards of good faith dealing among joint venturers is admissible under this section if it will assist jury in determining whether defendants’ actions fulfilled their duty of “loyalty and fair dealing.” Commerce Mortgage Co. v. Industrial Park Co., 101 Or App 345, 790 P2d 16 (1990), as modified by 102 Or App 284, 793 P2d 894 (1990), Sup Ct review denied

 

      Error in admitting testimony of police officer, not qualified as expert, regarding speed of vehicles involved in collision, was harmless in light of other evidence. Hays v. Huard, 108 Or App 289, 814 P2d 559 (1991)

 

      Police officer, qualified as expert, could testify based on reconstruction as to speed of vehicle involved in collision although he was not eyewitness to accident. DeFries v. Post, 108 Or App 298, 815 P2d 224 (1991)

 

      Fact that psychologist lacked license affects weight given opinion rather than admissibility. Aetna Casualty v. Robinson, 115 Or App 154, 836 P2d 1362 (1992)

 

      Medical doctor was not precluded from testifying that child was sexually abused as medical diagnosis simply because jury might infer from that testimony that another witness was telling the truth. State v. Wilson, 121 Or App 460, 855 P2d 657 (1993), Sup Ct review denied

 

      Forensic DNA testing has sufficient scientific reliability to be helpful to trier of fact in matters of identification. State v. Futch, 123 Or App 176, 860 P2d 264 (1993), aff’d 324 Or 297, 924 P2d 832 (1996)

 

      Where expert did not comment directly on credibility of defendants, testimony of expert that changing explanation for child’s injuries was typical child abuser behavior was permissible. State v. Butterfield, 128 Or App 1, 874 P2d 1339 (1994), Sup Ct review denied

 

      Evidence that has potential to influence trier of fact as scientific evidence must be reviewed by court for scientific validity and pertinence. State v. O’Key, 321 Or 285, 899 P2d 663 (1995)

 

      Validity and pertinence of scientific evidence must be evaluated by court in light of: 1) whether theory or technique can be and has been tested; 2) whether theory or technique has been subject to peer review and publication; 3) known or potential rate of error; and 4) degree of acceptance in relevant scientific communities. State v. O’Key, 321 Or 285, 899 P2d 663 (1995)

 

      Expert witness on medical subject need not be person licensed to practice medicine. Cunningham v. Montgomery, 143 Or App 171, 921 P2d 1355 (1996), Sup Ct review denied

 

      Lack of real estate appraiser license does not prevent person having sufficient knowledge, skill or experience from presenting testimony giving comparative market analysis. Yager and Yager, 155 Or App 407, 963 P2d 137 (1998), Sup Ct review denied

 

      Testimony based on personal observation or specialized knowledge of professional and offered for purpose unrelated to establishing conformance with scientific principle is not scientific evidence requiring establishment of foundation. State v. Stafford, 157 Or App 445, 972 P2d 47 (1998), Sup Ct review denied

 

      Scientific evidence forming basis for expert opinion may consist of physician case reports employing scientific methodology. Jennings v. Baxter Healthcare Corp., 331 Or 285, 14 P3d 596 (2000)

 

      Physician’s diagnosis that patient is suffering from particular condition is subject to foundational requirements for scientific evidence. State v. Sanchez-Cruz, 177 Or App 332, 33 P3d 1037 (2001), Sup Ct review denied

 

      Where qualified experts disagree concerning validity of medical diagnosis or other scientific evidence, court should rely upon trial process and jury evaluation to determine truth rather than excluding scientific evidence pretrial. Kennedy v. Eden Advanced Pest Technologies, 222 Or App 431, 193 P3d 1030 (2008)

 

      Where other legitimate grounds exist for act to be considered during differential diagnosis process as possible cause of injury, lack of scientifically accepted mechanism of causation or other verifiable correlation does not require excluding act from consideration. Marcum v. Adventist Health System/West, 345 Or 237, 193 P3d 1 (2008)

 

      Nurse’s experience working with patients suffering from traumatic brain injury qualified nurse as expert for purposes of testifying to injury’s impact on defendant’s field sobriety test despite nurse’s lack of specialized education or training. State v. Woodbury, 289 Or App 109, 408 P3d 267 (2017)

 

LAW REVIEW CITATIONS: 71 OLR 93, 349 (1992)

 

      40.415

(Rule 703)

 

NOTES OF DECISIONS

 

      OEC 703 does not permit state’s expert witness on direct examination to reveal to the jury results of excludable blood test in prosecution for driving under the influence of intoxicants. State v. Knepper, 62 Or App 623, 61 P2d 560 (1983)

 

      Where no witness testified about seeing defendant wearing jacket in co-defendant’s vehicle when victim was killed and facts were made known to expert witness through prosecutor’s hypothetical question, evidence was sufficient to support finding to that effect. State v. Nefstad, 309 Or 523, 789 P2d 1326 (1990)

 

      Error in admitting testimony of police officer, not qualified as expert, regarding speed of vehicles involved in collision, was harmless in light of other evidence. Hays v. Huard, 108 Or App 289, 814 P2d 559 (1991)

 

      Police officer, qualified as expert, could testify based on reconstruction as to speed of vehicle involved in collision although he was not eyewitness to accident. DeFries v. Post 108 Or App 298, 815 P2d 224 (1991)

 

      In forming opinion about why event happened, expert witness may consider testimony of participant in event that describes what happened. Bray v. Pfeifer, 112 Or App 375, 829 P2d 730 (1992), Sup Ct review denied

 

LAW REVIEW CITATIONS: 19 WLR 423 (1983); 27 WLR 27 (1991)

 

      40.420

(Rule 704)

 

NOTES OF DECISIONS

 

      Although 1981 Evidence Code liberalizes admissibility of expert opinion, it does not allow opinion as to who should win, and witness should not have been permitted to give opinion as to whether or not defendants were negligent. Phomvongsa v. Phounsaveth, 72 Or App 518, 696 P2d 567 (1985), Sup Ct review denied

 

      Expert testimony which merely tells jury what legal conclusion to reach is not admissible under this rule. French v. Barrett, 84 Or App 52, 733 P2d 89 (1987)

 

      Court did not err by permitting expert to testify on ultimate questions of amount of damages. Becker v. Port Dock Four, Inc., 90 Or App 384, 752 P2d 1235 (1988)

 

      Though it was not abuse of discretion to admit evidence of accident reconstruction, court erred in admitting expert testimony that particular sign was substantial factor in causing accident and was inadmissible “pure opinion” on legal consequence of disputed facts which did not assist jury but instead told it to reach particular result on contested causation question. DeRosa v. Kolb, 90 Or App 548, 752 P2d 1282 (1988), Sup Ct review denied

 

LAW REVIEW CITATIONS: 19 WLR 425 (1983)

 

      40.425

(Rule 705)

 

NOTES OF DECISIONS

 

      Technician’s certification attesting to accuracy of intoxilyzer machine bears those indicia of reliability traditionally associated with public records and is admissible for that reason and thus this Rule was relevant, if at all, only to extent that despite certificate’s reliability defendant chose to cross-examine technician-expert. State v. Bigej, 77 Or App 18, 711 P2d 189 (1985), Sup Ct review denied

 

      Trial court erred in excluding evidence of Intoxilyzer test when person who administered test was not available to testify as defendant did not have right to cross-examine that person and it was sufficient that state offered testimony of person who had observed test, was licensed to administer test and could testify from personal knowledge whether test administration procedures were followed. State v. McCormack, 92 Or App 84, 756 P2d 1281 (1988), Sup Ct review denied

 

LAW REVIEW CITATIONS: 19 WLR 425 (1983); 27 WLR 27 (1991)

 

      40.450

(Rule 801)

 

      See also annotations under ORS 41.900 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 41.900)

 

      Exclusion of co-conspirator’s statement from use against defendant at trial applies to statements not directly implicating defendant. State v. Capitan, 8 Or App 582, 494 P2d 443 (1972), Sup Ct review denied

 

      Declarations of co-conspirator were properly admitted against defendant under this section as relating to conspiracy to commit murder where: 1) statements were made while co-conspirator was in process of concealing and later attempting to sell fruits of robbery which co-conspirator and defendant had conspired to commit; 2) conspiracy to rob was continuing since the stolen property had not been disposed of; and 3) possibility of murder was foreseeable result of conspiracy to rob. State v. Garrison, 16 Or App 588, 519 P2d 1295 (1974), Sup Ct review denied

 

      Duration of conspiracy is limited to those acts directly related to substantive crime. State v. Davis, 19 Or App 446, 528 P2d 117 (1974)

 

      Where testimony of coconspirator was sufficient to establish existence of conspiracy of which defendant was part, timing of evidence was within discretion of trial court. State v. Curran, 38 Or App 351, 590 P2d 268 (1979), Sup Ct review denied

 

      In prosecution for alleged conspiracy to wreck defendant’s boat so defendant could collect on loss from his insurance company, note written by alleged coconspirator was admissible, not for truth of contents of note, but as foundation for statements made by defendant in response to learning of note. State v. Hattersley, 56 Or App 265, 641 P2d 634 (1982), aff’d 294 Or 592, 660 P2d 674 (1983)

 

      Statements of co-conspirator are admissible as long as they are “related to” conspiracy. State v. Pottle, 62 Or App 545, 662 P2d 351 (1983), aff’d on other grounds, 296 Or 274, 671 P2d 1 (1984)

 

Under Evidence Code

 

      Where witness testified that he received letter from defendant containing thinly veiled threat concerning witness testifying at defendant’s trial, witness’s statements were admissible. State v. Reece, 56 Or App 169, 641 P2d 1141 (1982)

 

      Trial court’s admission of investigating officer’s hearsay testimony concerning plaintiff’s statements at accident scene, if error, was harmless where plaintiff later testified to the same effect and where there was “aroma” in the evidence that plaintiff’s version of events was recent fabrication. Livestock Transportation v. Ashbaugh, 64 Or App 7, 666 P2d 1356 (1983), Sup Ct review denied

 

      Out-of-court statement concerning details of rape, made before motive to testify falsely arose, is admissible as prior consistent statement following impeachment by prior inconsistent statement. State v. Middleton, 294 Or 427, 657 P2d 1215 (1983)

 

      To have adopted hearsay statement of third person, circumstances must indicate that party used statement in such a way as to indicate approval of or agreement with it. State v. Severson, 298 Or 652, 696 P2d 521 (1985)

 

      Testimony of Children’s Services Division worker concerning what victim of sexual abuse told her was admissible as prior consistent statement under this section to rebut defendant’s impeachment of victim by allegedly inconsistent statements and implied charge of recent fabrication. State v. Resendez, 82 Or App 259, 728 P2d 562 (1986), Sup Ct review denied

 

      In action for securities law violations, where plaintiff presented sufficient evidence for jury to find that defendant either controlled seller of stock within meaning of ORS 59.115 or that defendant sold stock in violation of ORS 59.115 through his agent, court did not err in admitting testimony of purported agent’s statements regarding defendant’s knowledge and approval of stock sale. Wicks v. O’Connell, 89 Or App 236, 748 P2d 551 (1988)

 

      Officer’s opinion as to credibility of witnesses who might testify contrary to officer did not constitute charge of recent fabrication and prior consistent statements of plaintiff were thus erroneously admitted, but error was not prejudicial. Powers v. Officer Cheeley, 307 Or 585, 771 P2d 622 (1989)

 

      Where statement is admissible as admission of adverse party, opinion rule is inapplicable and trial court erred in excluding defendant’s statement. Washington v. Taseca Homes, Inc., 101 Or App 607, 792 P2d 453 (1990), aff’d 310 Or 783, 802 P2d 70 (1990)

 

      For statements attributed to co-conspirator to be admitted under this section, state must show foundational requirements by preponderance of evidence. State v. Cornell, 109 Or App 396, 820 P2d 11 (1991), aff’d 314 Or 673, 842 P2d 394 (1992)

 

      Conspiracy continues until its objective has been achieved or abandoned and, where defendant and co-conspirator were arrested before they had disposed of stolen property, statements made by co-conspirator up to time of arrests were admissible. State v. Cornell, 109 Or App 396, 820 P2d 11 (1991), aff’d 314 Or 673, 842 P2d 394 (1992)

 

      Determination as to whether party intended to adopt, agree with or approve of contents of statement of another is preliminary question of fact for trial judge under OEC 104(1). State v. Carlson, 311 Or 201, 808 P2d 1002 (1991)

 

      Grand jury proceedings are other proceedings under this section and grand jury testimony is admissible as prior inconsistent statement, even if proceedings are not transcribed. State v. Dickerson, 112 Or App 51, 827 P2d 1354 (1992), Sup Ct review denied

 

      Party could introduce results of polygraph test taken by spouse for purpose of showing that response of party upon learning polygraph results was reasonable. Fromdahl and Fromdahl, 314 Or 496, 840 P2d 683 (1992)

 

      Videotape of reporter’s statement attributing allegedly defamatory statement to defendant was hearsay not within any exception to rule. Hickey v. Settlemier, 318 Or 196, 864 P2d 372 (1993)

 

      Statement by husband to wife regarding existence of conspiracy was admissible as being in furtherance of conspiracy since court could find statement either bolstered husband’s resolve to engage in plan, was given to obtain wife’s assent or was attempt to draw wife into scheme. State v. Harris, 126 Or App 516, 869 P2d 868 (1994), as modified by 127 Or App 613, 872 P2d 445 (1994), Sup Ct review denied

 

      Where state seeks to interfere with parent-child relationship through termination or dependency proceeding, interests of child are adverse to state. State ex rel Juvenile Dept. v. Cowens, 143 Or App 68, 922 P2d 1258 (1996), Sup Ct review denied

 

      Where one party asserts that other party failed to previously report fact that would normally be reported if occurring, implied charge of “recent fabrication” exists. Keys v. Nadel, 325 Or 324, 937 P2d 521 (1997)

 

      Where witness lacks memory of events previously testified to, court has discretion to treat lack of memory as inconsistency and to allow prior testimony as substantive evidence of events. State v. Staley, 165 Or App 395, 995 P2d 1217 (2000)

 

      Statement by agent or servant is admissible only if scope of agency is established through proof of job title or responsibilities. Andrews v. R.W. Hays Co., 166 Or App 494, 998 P2d 774 (2000)

 

      Machine-generated information regarding speed of vehicle is not statement issued by declarant. State v. Weber, 172 Or App 704, 19 P3d 378 (2001)

 

      Whether court has jurisdiction over charge of conspiracy is irrelevant for purposes of determining whether statement was made by coconspirator of party. State v. Ervin, 193 Or App 41, 88 P3d 296 (2004)

 

      Where action states multiple claims for relief, statement by person who is party to one claim for relief is not admissible in claim for relief to which person is not party. Phillips v. Rathbone, 194 Or App 90, 93 P3d 835 (2004)

 

      Where defendant is not active participant in conversation, mere listening presence during conversation is insufficient to manifest intent by criminal defendant to adopt statement made during conversation. State v. Clark, 217 Or App 475, 175 P3d 1006 (2008), Sup Ct review denied

 

      Statement offered “against a party” must be made by party actively engaged in adversary process as adversary party and must be made against party that has declared opposing interest. Department of Human Services v. G.D.W., 353 Or 25, 292 P3d 548 (2012)

 

      If declarant is previously acquainted with accused, identifying testimony could not “result from” declarant’s perception of the accused, is accusatory and substantive and, therefore, inadmissible hearsay not subject to exception for statements of identification. State v. Hartley, 289 Or App 25, 407 P3d 902 (2017)

 

 

COMPLETED CITATIONS (for ORS 41.900 in permanent edition): State v. O’Brien, 6 Or App 34, 485 P2d 434, 486 P2d 592 (1971), aff’d262 Or 30, 496 P2d 191 (1972)

 

      40.460

(Rule 803)

 

      See also annotations under ORS 41.670, 41.680, 41.690, 41.840, 41.870 and 41.900 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statutes

 

      Records of regularly conducted activity (ORS 41.690)

 

      This section vests considerable discretion in trial judge concerning admissibility. Stanfield v. Laccoarce, 284 Or 651, 588 P2d 1271 (1978)

 

      Whether routinely prepared record is made within regular course of business depends on whether circumstances under which record is made furnish sufficient checks against misstatement to invest record with some badge of truthfulness. Lepire v. Motor Vehicles Div., 47 Or App 67, 613 P2d 1084 (1980)

 

      Excited utterance (ORS 41.870)

 

      Declarations of rape victim identifying her attacker that were made more than hour after attack were admissible under “spontaneous exclamation” exception to hearsay rule. State v. Wilson, 20 Or App 553, 532 P2d 825 (1975)

 

      Victim’s initial communication with police, consisting of five-minute telephone conversation, was “spontaneous exclamation” within exception to hearsay rule. State v. Jones, 27 Or App 767, 557 P2d 264 (1976), Sup Ct review denied

 

Under Evidence Code

 

      In general

 

      This Rule permits officer who testifies in criminal trial to read relevant parts of his report into record when he has insufficient present recollection to testify fully and accurately. State v. Scally, 92 Or App 149, 758 P2d 365 (1988)

 

      Hearsay statement may not be admitted over Confrontation Clause objection unless prosecution produces declarant or demonstrates unavailability of declarant. State v. Wilcox, 180 Or App 557, 43 P3d 1182 (2002), Sup Ct review denied

 

      Hearsay statement does not violate confrontation right where declarant is unavailable or is available, actually present and ready to testify. State v. Crain, 182 Or App 446, 50 P3d 1206 (2002)

 

      If victim’s statements relate victim’s memory of past intention and present conclusions about past event, and conclusions are based on reflection of past, statements are inadmissible as statements of memory and belief. State v. Richardson, 253 Or App 75, 288 P3d 995 (2012), Sup Ct review denied

 

      Excited utterance

 

      Out-of-court statements made by four-year old child describing sexual assaults that might have occurred as much as 30 days earlier were not properly admissible as “excited utterance” exception to hearsay rule. State v. Hollywood, 67 Or App 546, 680 P2d 655 (1984), Sup Ct review denied

 

      Statements made by four-year old victim to her mother about alleged sexual attack were made within short period of time with no intervening opportunity for outside influence and therefore it was not error to admit them as excited utterances. State v. Mace, 67 Or App 753, 681 P2d 140 (1984), Sup Ct review denied

 

      Where victim of sexual misconduct is incompetent to testify because of age, unexcited hearsay declarations of sexual misconduct are admissible through exception to rule against hearsay. State v. Harris, 78 Or App 490, 712 P2d 242 (1986)

 

      Statements to 911 dispatcher and statements made to responding police officer qualified as excited utterances. State v. Wolfs, 119 Or App 262, 850 P2d 1139 (1993), Sup Ct review denied

 

      Statement is related to startling event if subject of statement would likely be evoked by event. State v. Stonaker, 149 Or App 728, 945 P2d 573 (1997), Sup Ct review denied; State v. Yong, 206 Or App 522, 138 P3d 37 (2006), Sup Ct review denied

 

      Admission of hearsay statement consisting of excited utterance is not exempt from state constitutional requirement that declarant be unavailable. State v. Moore, 159 Or App 144, 978 P2d 395 (1999), aff’d 334 Or 328, 49 P3d 785 (2002)

 

      Hearsay statement is admissible based on declarant unavailability only if state is unable to produce declarant as witness. State v. Jackson, 187 Or App 679, 69 P3d 722 (2003)

 

      Appellate review of trial court’s findings regarding circumstances of statement is for supporting evidence in record, but appellate review of trial court’s legal conclusion that statement is or is not excited utterance uses error of law standard. State v. Cunningham, 337 Or 528, 99 P3d 271 (2004)

 

      Where defendant assaulted and threatened victim then held victim captive after assault, and victim made statements to third party upon victim’s escape 24 hours after assault, victim’s statements were “excited utterance” as used in this section because victim was under continuous emotional shock or unabated fright when victim made statements. State v. Underwood, 266 Or App 274, 337 P3d 969 (2014), Sup Ct review denied

 

      Statements of state of mind

 

      Statements by murder victim to friends that indicated that victim did not like defendant were admissible to show that victim did not voluntarily have sexual intercourse with defendant even though statement suggested something about conduct of defendant. State v. Engweiler, 118 Or App 132, 846 P2d 1163 (1993), Sup Ct review denied

 

      Statement regarding intent of declarant to engage in action is not evidence of likely action by another person. Holmes v. Morgan, 135 Or App 617, 899 P2d 738 (1995), Sup Ct review denied

 

      Statement that merely reflects or that reasonably supports inference regarding declarant’s state of mind constitutes assertion of declarant’s state of mind. State v. Clegg, 332 Or 432, 31 P3d 408 (2001)

 

      Statements made for purposes of medical diagnosis or treatment

 

      When it is shown that physician reasonably relied on child-victim’s identification of her abuser as member of her family in diagnosing and treating victim, physician’s testimony about victim’s identification of her abuser is admissible. State v. Vosika, 83 Or App 298, 731 P2d 449 (1987)

 

      Testimony of two physicians, including victim’s identification of defendant as person who had sexually abused her, was admissible as statement for medical diagnosis or treatment because physician would reasonably rely on statements and record supports finding that victim understood she was being interviewed and examined for diagnosis and treatment. State v. Newby, 97 Or App 598, 777 P2d 994 (1989), Sup Ct review denied

 

      Where patient’s statements to physician about defendant’s presence in her home, his abusive conduct, and her resulting fears communicated to physician ongoing cause of patient’s situational depression and were used to diagnose and treat patient’s illness, statements were admissible under this section. State v. Moen, 309 Or 45, 786 P2d 111 (1990)

 

      Statements made by child victim to physician and to physician’s assistant about sexual abuse by defendant were admissible as statements made for purposes of medical diagnosis or treatment, even though reason victim was taken to physician was for possible diagnosis of sexual abuse. State v. Logan, 105 Or App 556, 806 P2d 137 (1991); State v. Barkley, 108 Or App 756, 817 P2d 1328 (1991), aff’d 315 Or 420, 846 P2d 390 (1993); State ex rel Juv. Dept. v. Jackson, 122 Or App 389, 858 P2d 158 (1993), Sup Ct review denied

 

      Videotaped interview of child victim of sexual abuse was admissible because interview was for purpose of diagnosing child’s condition and prescribing treatment. State v. Verley, 106 Or App 751, 809 P2d 723 (1991), Sup Ct review denied; State v. Barkley, 108 Or App 756, 817 P2d 1328 (1991), aff’d 315 Or 420, 846 P2d 390 (1993); State ex rel Juv. Dept. v. Cornett, 121 Or App 264, 855 P2d 171 (1993)

 

      Admissibility of videotape depends on admissibility of statements contained in it. State v. Verley, 106 Or App 751, 809 P2d 723 (1991), Sup Ct review denied; State v. Barkley, 108 Or App 756, 817 P2d 1328 (1991), aff’d 315 Or 420, 846 P2d 390 (1993)

 

      Identification statement made by five-year old child to physician during medical examination is admissible in prosecution for sexual abuse of child. State v. Alvarez, 110 Or App 230, 822 P2d 1207 (1991), Sup Ct review denied

 

      Testimony by nurse who questioned child about cause of child’s severe burns was admissible as statement for medical diagnosis or treatment because child made statements for purpose of medical diagnosis by nurse. State v. Jensen, 313 Or 587, 837 P2d 525 (1992)

 

      Statements made by medical expert concerning medical diagnosis or treatment of child abuse, although supporting child’s testimony, are admissible and are not direct comment on child’s credibility. State v. Wilson, 121 Or App 460, 855 P2d 657 (1993), Sup Ct review denied

 

      Videotape of child’s interview with personnel at hospital-based child abuse evaluation center was admissible because child’s statements to interviewer met all three requirements of hearsay exception for statements made for purposes of medical diagnosis or treatment. State v. Wilson, 121 Or App 460, 855 P2d 657 (1993), Sup Ct review denied

 

      Whether child is old enough to understand that questions are part of medical exam is based on circumstances, not chronological age of child. State v. Booth, 124 Or App 282, 862 P2d 518 (1993), Sup Ct review denied

 

      Where statement meets requirements of exception, statement may originate with person other than declarant or person being diagnosed or treated. State ex rel Juvenile Dept. v. Pfaff, 164 Or App 470, 994 P2d 147 (1999), Sup Ct review denied

 

      Public records

 

      Certificates of breathalyzer inspections are admissible under public records exception to hearsay rule. State v. Smith, 66 Or App 703, 675 P2d 510 (1984)

 

      Admissibility of Intoxilyzer certifications as public records exception to hearsay rule does not violate constitutional right to confrontation of witnesses. State v. Conway, 70 Or App 721, 690 P2d 1128 (1984), Sup Ct review denied; State v. William, 199 Or App 191, 110 P3d 1114 (2005), Sup Ct review denied

 

      Public records exception for certified copy of document does not apply to original document newly created by data retrieval from Law Enforcement Data System and attested to by person performing retrieval. State v. Barber, 209 Or App 604, 149 P3d 260 (2006), Sup Ct review denied

 

      Warrants are admissible under public records exception to hearsay rule. State v. Carter, 238 Or App 417, 241 P3d 1205 (2010), Sup Ct review denied

 

      Investigative reports

 

      “Factual findings” resulting from investigation pursuant to law are limited to reports based upon personal knowledge of investigator or upon verifiable fact rather than opinion. Sleigh v. Jenny Craig Weight Loss Centres, Inc., 161 Or App 262, 984 P2d 891 (1999), modified 163 Or App 20, 988 P2d 916 (1999)

 

      Complaint of sexual misconduct

 

      Testimony of mother recounting statement made by three-year-old victim to mother about sexual attacks by defendant were admissible as exception to hearsay rule allowing complaint of sexual misconduct by prosecuting witnesses; it is unnecessary for child victim to testify as precondition for admission of child’s complaint of sexual misconduct. State v. Campbell, 299 Or 633, 705 P2d 694 (1985)

 

      Out of court statement by unavailable child concerning abuse of another child was not within scope of exception. State v. Hill, 129 Or App 180, 877 P2d 1230 (1994)

 

      For purposes of requirement that proponent make intention to offer hearsay statement known to adverse party no later than 15 days before trial, trial begins on scheduled trial date unless postponement has been granted. State v. Iverson, 185 Or App 9, 57 P3d 953 (2002), Sup Ct review denied

 

      Statements “concerning” abuse include victim’s whole expression of abuse and how victim related that expression to others. State v. Hobbs, 218 Or App 298, 179 P3d 682 (2008), Sup Ct review denied

 

      To offer particulars of statement, state must identify specifically which hearsay statements it will offer as evidence. State v. Chase, 240 Or App 541, 248 P3d 432 (2011)

 

      Statement made by special victim of sexual conduct

 

      Intention of legislature under this rule is that defendant not be convicted on hearsay alone. State v. Renly, 111 Or App 453, 827 P2d 1345 (1992)

 

      Statement by unavailable declarant is not admissible unless additional evidence corroborates statement. State v. Renly, 111 Or App 453, 827 P2d 1345 (1992)

 

      Victim recantation of prior statements does not render otherwise competent victim unable to communicate or testify in court. State v. Higgins, 136 Or App 590, 902 P2d 612 (1995)

 

      Where defense counsel was prohibited from cross-examining child at pretrial availability hearing, admission of hearsay statements by child violated defendant’s confrontation right. State v. Kitzman, 323 Or 589, 920 P2d 134 (1996)

 

      Where victim testifies and is available for cross-examination, “child” means unmarried person under 18 years of age. State v. Lamb, 161 Or App 66, 983 P2d 1058 (1999)

 

      As prerequisite to admitting hearsay statement by unavailable declarant, court must: 1) determine that statement is circumstantially reliable; 2) determine whether independent admissible or nonadmissible corroborating evidence supports admission of statement; and 3) make explicit findings as to evidence relied upon for corroboration. State v. Reed, 173 Or App 185, 21 P3d 137 (2001), Sup Ct review denied

 

      Where there are multiple hearsay statements by declarant, corroborative evidence need not bear directly or distinctly on particular statement. State v. Reed, 173 Or App 185, 21 P3d 137 (2001), Sup Ct review denied

 

      “Good cause” for failure to give timely notice of intent to use statement refers to circumstances that cause prosecution to be unable to comply with notice requirement. State v. McKinzie, 186 Or App 384, 63 P3d 1214 (2003), Sup Ct review denied

 

      Inclusion of statement in discovery provided to defendant does not satisfy requirement that prosecution provide timely notice of intent to present statement at trial. State v. McKinzie, 186 Or App 384, 63 P3d 1214 (2003), Sup Ct review denied

 

      Domestic violence

 

      Other evidence presented at trial that corroborates truth of hearsay statement cannot be used to show statement itself has particularized guarantees of trustworthiness. State v. Wilcox, 180 Or App 557, 43 P3d 1182 (2002), Sup Ct review denied

 

      Residual exceptions

 

      Spontaneous statements made by four-year-old child while she was still suffering pain from sexual assault were made under circumstances guaranteeing trustworthiness and were, therefore, admissible under this exception to hearsay rule. State v. Hollywood, 67 Or App 546, 680 P2d 655 (1984), Sup Ct review denied

 

      Exception embodied in this section is to be used rarely and only in situations where interest of justice requires. Star Rentals v. Seeberg Constr., 83 Or App 44, 730 P2d 573 (1986)

 

      Exception for document retrieved from Law Enforcement Data System and attested to by person performing retrieval applies only to document newly created by retrieval, not to certified copies. State v. Barber, 209 Or App 604, 149 P3d 260 (2006), Sup Ct review denied

 

      Residual exception as basis for admission of hearsay ordinarily may not be asserted for first time on appeal. State v. Rodriguez-Castillo, 345 Or 39, 188 P3d 268 (2008)

      When determining trustworthiness of hearsay statement not specifically covered by statute, trial courts should not consider credibility of witness who provides corroborating testimony. State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491, 256 P3d 104 (2011)

 

COMPLETED CITATIONS (for ORS 41.900 in permanent edition): State v. O’Brien, 6 Or App 34, 485 P2d 434, 486 P2d 592 (1971), aff’d262 Or 30, 496 P2d 191 (1972)

 

 

LAW REVIEW CITATIONS

 

Under Evidence Code

      22 WLR 421 (1986); 26 WLR 402, 406, 423 (1990); 37 WLR 299 (2001); 82 OLR 1125 (2003)

 

      40.465

(Rule 804)

 

      See also annotations under ORS 41.830, 41.840, 41.850, 41.860, 41.870, 41.890 and 41.900 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statutes

 

      Statement made in professional capacity (ORS 41.860)

 

      Records made in professional capacity in ordinary course of professional conduct were admissible even though they included statements of opinion. Williams v. Laurence-David, Inc., 271 Or 712, 534 P2d 173 (1975)

 

      Court does not have discretion regarding admissibility of record qualifying under exception for records of professional. Williams v. Laurence-David, Inc., 271 Or 712, 534 P2d 173 (1975)

 

      Former testimony (ORS 41.900)

 

      Where absent witness is party to action, admission of former testimony requires showing of necessity that witness cannot personally appear. Rogers v. Donovan, 268 Or 24, 518 P2d 1306 (1974)

 

      In criminal trial, testimony given by absent declarant as witness at another hearing is not admissible unless prosecution has made substantial effort to procure attendance of declarant. State v. Smyth, 286 Or 293, 593 P2d 1166 (1979)

 

Under Evidence Code

 

      Where prosecution’s key witness invoked Fifth Amendment privilege and refused to testify in retrial, testimony at first trial was admissible against defendant; witness was “unavailable” through no fault of prosecutor though plea agreement between witness and prosecutor only required witness’ testimony at first trial, not at subsequent retrials. State v. Brooks, 64 Or App 404, 668 P2d 466 (1983), Sup Ct review denied

 

      Paragraph (3)(f), the residual exception, is available only if evidence is not admissible under any other exception; where eight year old child testified that she did not remember telling psychologist or case worker about sexual contact with respondent, testimony of psychologist and case worker narrating in detail substance of child’s complaint to them was not admissible because of specific hearsay exception for evidence of complaint of sexual misconduct under ORS 40.460 (Rule 803). State ex rel Children’s Services Division v. Page, 66 Or App 535, 674 P2d 1196 (1984)

 

      Where dying victim was unable to speak, evidence was sufficient for trial court to conclude that victim understood questions of sheriff’s department officer and was able to communicate by employing hand signal system used between officer and victim. State v. Holterman, 69 Or App 509, 687 P2d 1097 (1984), Sup Ct review denied

 

      In prosecution for sexual assault of child, victim’s statements to her mother were admissible hearsay under residual exception, paragraph (3)(f), where declarant was incompetent to testify and statements were made in circumstances guaranteeing trustworthiness. State v. Bounds, 71 Or App 744, 694 P2d 566 (1984), Sup Ct review denied

 

      Where defendant was charged with assault, victim testified that she could not remember any physical contact between herself and defendant and police officer testified about statements victim had made to him, statements were not admissible under residual exceptions to hearsay rule because they lacked sufficient guarantee of trustworthiness. State v. Apperson, 85 Or App 429, 736 P2d 1026 (1987)

 

      Where defendant availed self of opportunity to cross-examine witness at preliminary hearing and motives for development of testimony at hearing were similar to that at trial and witness was “unavailable” within meaning of this section, trial court did not err in admitting in evidence testimony at preliminary hearing of witness who was absent from trial. State v. Montgomery, 88 Or App 163, 744 P2d 592 (1987), Sup Ct review denied

 

      Where nothing in text of ORS 40.460 limits rule’s application to prior testimony given in same criminal prosecution and rule does not require mutuality of parties, transcripts from criminal prosecutions in another state based upon different criminal conduct were admissible. State v. Moen, 309 Or 45, 786 P2d 111 (1990)

 

      Where defendant had opportunity at security release hearing and motive to develop testimony similar to motive at trial, witnesses’ testimony during security release hearing was admissible at defendant’s trial. State v. Douglas, 310 Or 438, 800 P2d 288 (1990)

 

      Wife’s out-of-court statement that she had seen defendant driving and thought he was intoxicated was not admissible under hearsay exception for statements against pecuniary interest. State v. Lyman, 107 Or App 390, 812 P2d 23 (1991)

 

      Trial court did not err in admitting uncorroborated hearsay evidence of confession since corroboration is required only of exculpatory statements. State v. Tucker, 109 Or App 519, 820 P2d 834 (1991), Sup Ct review denied

 

      Trial court properly ruled that witness was not available to testify where there was testimony that witness had no long-term memory to speak of, was unable to travel because of physical and mental health and hospital records reflected moderate impairment of gross memory abilities. State v. Pinnell, 311 Or 98, 806 P2d 110 (1991)

 

      Where prosecutor informed trial court that state had prepared “transport order” from state prison for potential witness and defendant offered no evidence witness would testify to lack of memory or claim privilege against self-incrimination, defendant failed to show that witness was “unavailable” for purpose of introducing witness’ statements under this section. State v. Thoma, 313 Or 268, 834 P2d 1020 (1992)

 

      Deposition testimony of witness unavailable to subpoena is admissible under ORS 45.250 without showing that offering party sought voluntary return of witness per this section. Hansen v. Abrasive Engineering and Manufacturing, 317 Or 378, 856 P2d 625 (1993)

 

      Refusal of witness to testify based on Fifth Amendment right against self-incrimination did not mean that witness’s prior out-of-court statements on same matter were statements against penal interest. State v. Jacob, 125 Or App 643, 866 P2d 507 (1994), Sup Ct review denied

 

      Unavailability of witness must be established by means sanctioned by law for introduction of judicial evidence. State v. Ordonez-Villanueva, 138 Or App 236, 908 P2d 333 (1995), Sup Ct review denied

 

      In determining that statement against penal interest by hearsay declarant had sufficient indicia of reliability to be admissible, factors considered were: 1) whether declarant was pressured to make statement; 2) timing of statement; 3) to whom statement was addressed; 4) purpose of making statement; and 5) statement content. State v. Wilson, 323 Or 498, 918 P2d 826 (1996)

 

      In determining whether statement by hearsay declarant is admissible as statement against penal interest, statement must be prima facie inculpatory and circumstantially reliable. State v. Jones, 171 Or App 375, 15 P3d 616 (2000), Sup Ct review denied

 

      On de novo review, hearsay testimony to which no objection was made at trial may be considered by reviewing court for any weight testimony may have. Petersen v. Crook County, 172 Or App 44, 17 P3d 563 (2001)

 

      Circumstances indicating “trustworthiness” of statement against penal interest means both circumstances indicating statement was actually made and circumstances indicating truth of statement. State v. Lytsell, 187 Or App 169, 67 P3d 955 (2003)

 

      Where witness testifies in court that contents of written statement by witness are truthful, testimony is sufficient to make contents of statement part of evidentiary record for purpose of appellate review. Lowrance v. Trow, 225 Or App 250, 200 P3d 637 (2009)

 

      Exclusion of hearsay on basis that declarant is available as witness violates Due Process Clause of United States Constitution where (1) hearsay constitutes reliable, materially exculpatory evidence, (2) profferer of hearsay establishes that hearsay subjects declarant to criminal liability and (3) corroborating circumstances clearly indicate hearsay’s trustworthiness. State v. Cazares-Mendez, 233 Or App 310, 227 P3d 172 (2010), aff’d State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491, 256 P3d 104 (2011)

 

      For testimony to be admissible, wrongful conduct that is intended to cause declarant to be unavailable does not need to be for sole or primary purpose of causing witness to be unavailable. State v. Supanchick, 245 Or App 651, 263 P3d 378 (2011), aff’dState v. Supanchick, 354 Or 737, 323 P3d 231 (2014)

 

      Confrontation Clause of federal Constitution does not require wrongful conduct that causes declarant to be unavailable as witness to be for sole or primary purpose of causing witness to be unavailable. State v. Supanchick, 245 Or App 651, 263 P3d 378 (2011), aff’d State v. Supanchick, 354 Or 737, 323 P3d 231 (2014)

 

      Admissibility of testimony of declarant who is unavailable as witness because of wrongful conduct causes declarant to be unavailable is firmly rooted and does not need particularized guarantee of trustworthiness. State v. Supanchick, 245 Or App 651, 263 P3d 378 (2011), aff’d State v. Supanchick, 354 Or 737, 323 P3d 231 (2014)

 

      When determining trustworthiness of hearsay statement not specifically covered by statute, trial courts should not consider credibility of witness who provides corroborating testimony. State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491, 256 P3d 104 (2011)

 

      40.475

(Rule 806)

 

NOTES OF DECISIONS

 

      State may use prior convictions to impeach hearsay statement of nontestifying criminal defendant. State v. Dishman, 148 Or App 404, 939 P2d 1172 (1997)

 

      Party does not waive hearsay objection by presenting countering evidence. McCathern v. Toyota Motor Corp., 332 Or 59, 23 P3d 320 (2001)

 

      40.505

(Rule 901)

 

      See also annotations under ORS 42.060 and 42.070 in permanent edition.

 

NOTES OF DECISIONS

 

      Authentication is receipt of conditionally relevant evidence, not preliminary determination of admissibility. State v. Park, 140 Or App 507, 916 P2d 334 (1996), Sup Ct review denied

 

LAW REVIEW CITATIONS: 19 WLR 428 (1983)

 

      40.510

(Rule 902)

 

      See also annotations under ORS 43.310, 43.330, 43.340, 43.350, 43.360 and 43.370 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 43.330)

 

      Handwritten signature of certifying officer was not required, and photocopy whereby original document and statement of certification, including signature, were reproduced as single page was sufficient. State v. Pingelton, 31 Or App 241, 570 P2d 666 (1977), Sup Ct review denied

 

Under former similar statute (ORS 43.370)

 

      Entries in certified printout from Motor Vehicles Division computer which indicated that order suspending defendant’s driver license was still in effect when defendant was cited for driving while suspended were properly admitted under this section. State v. Sherman, 48 Or App 881, 618 P2d 973 (1980), Sup Ct review denied

 

      Certifying official’s summary of contents of public record is not admissible as entry in official record. State v. Harris, 288 Or 703, 609 P2d 798 (1980)

 

Under Evidence Code

 

      Because court could not discern whether document contained seal, documents were inadmissible under this rule. State v. Mueller, 96 Or App 185, 772 P2d 433 (1989)

 

LAW REVIEW CITATIONS

 

Under Evidence Code

      19 WLR 435 (1983)

 

      40.515

(Rule 903)

 

LAW REVIEW CITATIONS: 19 WLR 439 (1983)

 

      40.550 to 40.585

 

NOTES OF DECISIONS

 

      Where testimony by appellant and appellant’s son clearly and convincingly establishes that appellant had been involuntarily committed twice in past three years, original commitment order is not required by “best evidence rule.” State v. Brungard, 101 Or App 67, 789 P2d 683 (1990), as modified by 102 Or App 509, 789 P2d 683 (1990)

 

      40.550

(Rule 1001)

 

      See annotations under ORS 41.060 in permanent edition.

 

      40.555

(Rule 1002)

 

      See also annotations under ORS 41.610 and 41.640 in permanent edition.

 

LAW REVIEW CITATIONS: 19 WLR 440 (1983)

 

      40.560

(Rule 1003)

 

      See also annotations under ORS 41.640 and 41.720 in permanent edition.

 

NOTES OF DECISIONS

 

      Where only part of item is duplicated, “original” means part of item duplicated rather than entire item. State v. Nelsen, 219 Or App 443, 183 P3d 219 (2008), Sup Ct review denied

 

LAW REVIEW CITATIONS: 19 WLR 440 (1983)

 

      40.565

(Rule 1004)

 

      See also annotations under ORS 41.640 in permanent edition.

 

LAW REVIEW CITATIONS: 19 WLR 443 (1983)

 

      40.570

(Rule 1005)

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 43.330)

 

      Signature certifying documents need not be original handwritten signature. State v. Pingelton, 31 Or App 241, 570 P2d 666 (1977), Sup Ct review denied

 

      40.575

(Rule 1006)

      See also annotations under ORS 41.640 in permanent edition.

 

LAW REVIEW CITATIONS: 19 WLR 444 (1983)

 

      40.580

(Rule 1007)

 

LAW REVIEW CITATIONS: 19 WLR 445 (1983)

 

      40.585

(Rule 1008)

 

LAW REVIEW CITATIONS: 19 WLR 446 (1983)