Chapter 41 — Evidence Generally

 

2017 EDITION

 

 

EVIDENCE GENERALLY

 

EVIDENCE AND WITNESSES

 

41.010       Judicial evidence; proof

 

41.110       Satisfactory evidence

 

41.270       Proof of usage

 

41.415       Photograph of victim in prosecution for criminal homicide

 

41.500       “Secondary evidence” defined for ORS 41.500 to 41.580

 

41.510       Indispensable evidence

 

41.520       Evidence to prove a will

 

41.530       Evidence of representations as to third persons

 

41.560       Grant or assignment of trust

 

41.570       Contracts and communications made by telegraph

 

41.580       Statute of frauds

 

41.660       Admissibility of objects cognizable by the senses

 

41.675       Inadmissibility of certain data provided to peer review body of health care providers and health care groups

 

41.685       Inadmissibility of certain data relating to emergency medical services system

 

41.740       Parol evidence rule

 

41.815       Evidence of compliance with or attempt to comply with ORCP 32 I; when admissible

 

41.905       Admissibility in subsequent civil action of procedures in traffic crimes

 

41.910       Certain intercepted communications inadmissible

 

41.930       Admissibility of copies of original records

 

41.945       Application of ORS 41.930 and ORCP 55 H

 

      41.010 Judicial evidence; proof. Judicial evidence is the means, sanctioned by law, of ascertaining in a judicial proceeding the truth respecting a question of fact. Proof is the effect of evidence, the establishment of the fact by evidence.

 

      41.020 [Repealed by 1981 c.892 §98]

 

      41.030 [Repealed by 1981 c.892 §98]

 

      41.040 [Repealed by 1981 c.892 §98]

 

      41.050 [Repealed by 1981 c.892 §98]

 

      41.060 [Repealed by 1981 c.892 §98]

 

      41.070 [Repealed by 1981 c.892 §98]

 

      41.080 [Repealed by 1981 c.892 §98]

 

      41.090 [Repealed by 1981 c.892 §98]

 

      41.100 [Repealed by 1981 c.892 §98]

 

      41.110 Satisfactory evidence. Satisfactory evidence is that which ordinarily produces moral certainty or conviction in an unprejudiced mind. It alone will justify a verdict. Evidence less than this is insufficient evidence.

 

      41.120 [Repealed by 1981 c.892 §98]

 

      41.130 [Repealed by 1981 c.892 §98]

 

      41.140 [Repealed by 1981 c.892 §98]

 

      41.150 [Repealed by 1981 c.892 §98]

 

      41.210 [Repealed by 1981 c.892 §98]

 

      41.220 [Repealed by 1981 c.892 §98]

 

      41.230 [Repealed by 1981 c.892 §98]

 

      41.240 [Repealed by 1981 c.892 §98]

 

      41.250 [Repealed by 1981 c.892 §98]

 

      41.260 [Repealed by 1981 c.892 §98]

 

      41.270 Proof of usage. (1) Usage shall be proved by the testimony of at least two witnesses.

      (2) Evidence may be given of usage to explain the true character of an act, contract or instrument when such true character is not otherwise plain, but usage is never admissible except as a means of interpretation. [Amended by 1981 c.892 §86]

 

      41.280 [Repealed by 1981 c.892 §98]

 

      41.310 [Repealed by 1981 c.892 §98]

 

      41.315 [1987 c.774 §§1,2; repealed by 1995 c.688 §6]

 

      41.320 [Repealed by 1981 c.892 §98]

 

      41.330 [Repealed by 1981 c.892 §98]

 

      41.340 [Repealed by 1981 c.892 §98]

 

      41.350 [Amended by 1971 c.127 §1; repealed by 1981 c.892 §98]

 

      41.360 [Amended by 1957 c.679 §1; 1961 c.726 §399; repealed by 1981 c.892 §98]

 

      41.410 [Repealed by 1981 c.892 §98]

 

      41.415 Photograph of victim in prosecution for criminal homicide. In a prosecution for any criminal homicide, a photograph of the victim while alive shall be admissible evidence when offered by the district attorney to show the general appearance and condition of the victim while alive. [1987 c.2 §8]

 

      41.420 [Repealed by 1981 c.892 §98]

 

      41.430 [Repealed by 1981 c.892 §98]

 

      41.440 [Repealed by 1981 c.892 §98]

 

      41.450 [Repealed by 1981 c.892 §98]

 

      41.460 [Repealed by 1981 c.892 §98]

 

      41.470 [Repealed by 1981 c.892 §98]

 

      41.480 [Repealed by 1981 c.892 §98]

 

      41.500 “Secondary evidence” defined for ORS 41.500 to 41.580. As used in ORS 41.500 to 41.580, “secondary evidence” means a copy, or oral evidence, of an original writing or object. [1981 c.892 §81]

 

      41.510 Indispensable evidence. Certain evidence is necessary to the validity of particular acts or the proof of particular facts.

 

      41.520 Evidence to prove a will. Evidence of a will shall be the written instrument itself, or secondary evidence of the contents of the will, in the cases prescribed by law. [Amended by 1969 c.591 §271]

 

      41.530 Evidence of representations as to third persons. No evidence is admissible to charge a person upon a representation as to the credit, skill or character of a third person, unless the representation, or some memorandum thereof, be in writing, and either subscribed by or in the handwriting of the party to be charged.

 

      41.540 [Repealed by 1977 c.479 §1]

 

      41.550 [Repealed by 1961 c.726 §427]

 

      41.560 Grant or assignment of trust. Every grant or assignment of any existing trust in lands, tenements, hereditaments, goods or things in action is void, unless it is in writing and subscribed by the party making it or by the lawfully authorized agent of the party.

 

      41.570 Contracts and communications made by telegraph. Contracts made by telegraph shall be held to be in writing; and all communications sent by telegraph, and signed by the sender, or by the authority of the sender, shall be held to be in writing.

 

      41.580 Statute of frauds. (1) In the following cases the agreement is void unless it, or some note or memorandum thereof, expressing the consideration, is in writing and subscribed by the party to be charged, or by the lawfully authorized agent of the party; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents in the cases prescribed by law:

      (a) An agreement that by its terms is not to be performed within a year from the making.

      (b) An agreement to answer for the debt, default or miscarriage of another.

      (c) An agreement by an executor or administrator to pay the debts of the testator or intestate out of the estate of the executor or administrator.

      (d) An agreement made upon consideration of marriage, other than a mutual promise to marry.

      (e) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of any interest therein.

      (f) An agreement concerning real property made by an agent of the party sought to be charged unless the authority of the agent is in writing.

      (g) An agreement authorizing or employing an agent or broker to sell or purchase real estate for a compensation or commission; but if the note or memorandum of the agreement is in writing and subscribed by the party to be charged, or by the lawfully authorized agent of the party, and contains a description of the property sufficient for identification, and authorizes or employs the agent or broker to sell the property, and expresses with reasonable certainty the amount of the commission or compensation to be paid, the agreement shall not be void for failure to state a consideration.

      (h) An agreement, promise or commitment to lend money, to otherwise extend credit, to forbear with respect to the repayment of any debt payable in money, to modify or amend the terms under which the person has lent money or otherwise extended credit, to release any guarantor or cosigner or to make any other financial accommodation pertaining to an existing debt or other extension of credit. This paragraph does not apply:

      (A) If no party to the agreement, promise or commitment is a financial institution as defined in ORS 706.008, a consumer finance company licensed under ORS chapter 725 or a mortgage banker as defined in ORS 86A.100; or

      (B) To a loan of money or extension of credit to a natural person which is primarily for personal, family or household purposes and not for business or agricultural purposes or which is secured solely by residential property consisting of one to four dwelling units, one of which is the primary residence of the debtor.

      (2)(a) Except as provided in this subsection, defenses and exceptions created by provisions of the Oregon Revised Statutes or recognized by the courts of this state do not apply to subsection (1)(h) of this section.

      (b) An agreement, promise or commitment which does not satisfy the requirements of subsection (1)(h) of this section, but which is valid in other respects, is enforceable if the party against whom enforcement is sought admits in the party’s pleading, testimony or otherwise in court that the agreement, promise or commitment was made. The agreement is not enforceable under this paragraph beyond the dollar amount admitted.

      (c) Nothing in subsection (1)(h) of this section precludes a party from seeking to prove the modification of any term relating to the time of repayment.

      (3)(a) If a financial institution as defined in ORS 706.008, a consumer finance company licensed under ORS chapter 725 or a mortgage banker as defined in ORS 86A.100 lends money or extends credit, and subsection (1)(h) of this section applies to the loan or extension of credit, the financial institution, consumer finance company or mortgage banker shall, not later than the time the loan or extension of credit is initially made, include within the loan or credit document, or within a separate document which identifies the loan or extension of credit, a statement which is underlined or in at least 10-point bold type and which is substantially to the following effect:

______________________________________________________________________________

      Under Oregon law, most agreements, promises and commitments made by us concerning loans and other credit extensions which are not for personal, family or household purposes or secured solely by the borrower’s residence must be in writing, express consideration and be signed by us to be enforceable.

______________________________________________________________________________

      (b) The financial institution, consumer finance company or mortgage banker shall obtain the borrower’s signature on the original document described in paragraph (a) of this subsection and shall give the borrower a copy. [Amended by 1989 c.967 §§1,19; 1993 c.508 §39; 1997 c.631 §373; 2003 c.386 §1]

 

      41.590 [Repealed by 1961 c.726 §427]

 

      41.610 [Repealed by 1981 c.892 §98]

 

      41.615 [1959 c.353 §§1,3 (subsection (2) enacted in lieu of 41.630); 1973 c.231 §1; repealed by 1977 c.358 §1 (41.616 enacted in lieu of 41.615)]

 

      41.616 [1977 c.358 §2 (enacted in lieu of 41.615); repealed by 1979 c.284 §199]

 

      41.617 [1977 c.358 §3; repealed by 1979 c.284 §199]

 

      41.618 [1977 c.358 §4; repealed by 1979 c.284 §199]

 

      41.620 [Repealed by 1979 c.284 §199]

 

      41.622 [1977 c.744 §2; repealed by 1979 c.284 §199]

 

      41.625 [1959 c.349 §1; repealed by 1977 c.240 §1; (41.626 enacted in lieu of 41.625)]

 

      41.626 [1977 c.240 §2 (enacted in lieu of 41.625); repealed by 1979 c.284 §199]

 

      41.630 [Repealed by 1959 c.353 §2 (subsection (2) of 41.615 enacted in lieu of 41.630)]

 

      41.631 [1977 c.240 §4; repealed by 1979 c.284 §199]

 

      41.635 [1977 c.240 §3 and 1977 c.358 §5; repealed by 1979 c.284 §199]

 

      41.640 [Repealed by 1981 c.892 §98]

 

      41.650 [Repealed by 1981 c.892 §98]

 

      41.660 Admissibility of objects cognizable by the senses. Whenever an object, cognizable by the senses, has such a relation to the fact in dispute as to afford reasonable grounds of belief respecting it, or to make an item in the sum of the evidence, the object may be exhibited to the jury, or its existence, situation and character may be proved by witnesses. The exhibition of the object to the jury shall be regulated by the sound discretion of the court.

 

      41.670 [Repealed by 1981 c.892 §98]

 

      41.675 Inadmissibility of certain data provided to peer review body of health care providers and health care groups. (1) As used in this section, “peer review body” includes tissue committees, governing bodies or committees including medical staff committees of a health care facility licensed under ORS chapter 441, medical staff committees of the Department of Corrections and similar committees of professional societies, a health care service contractor as defined in ORS 750.005, an emergency medical service provider as defined in ORS 41.685 or any other medical group or provider of medical services in connection with bona fide medical research, quality assurance, utilization review, credentialing, education, training, supervision or discipline of physicians or other health care providers or in connection with the grant, denial, restriction or termination of clinical privileges at a health care facility. “Peer review body” also includes utilization review and peer review organizations.

      (2) As used in subsection (3) of this section, “data” means all oral communications or written reports to a peer review body, and all notes or records created by or at the direction of a peer review body, including the communications, reports, notes or records created in the course of an investigation undertaken at the direction of a peer review body.

      (3) All data shall be privileged and shall not be admissible in evidence in any judicial, administrative, arbitration or mediation proceeding. This section shall not affect the admissibility in evidence of records dealing with a patient’s care and treatment, other than data or information obtained through service on, or as an agent for, a peer review body.

      (4) A person serving on or communicating information to any peer review body or person conducting an investigation described in subsection (1) of this section shall not be examined as to any communication to or from, or the findings of, that peer review body or person.

      (5) A person serving on or communicating information to any peer review body or person conducting an investigation described in subsection (1) of this section shall not be subject to an action for civil damages for affirmative actions taken or statements made in good faith.

      (6) Subsection (3) of this section shall not apply to proceedings in which a health care practitioner contests the denial, restriction or termination of clinical privileges by a health care facility or the denial, restriction or termination of membership in a professional society or any other health care group. However, any data disclosed in those proceedings shall not be admissible in any other judicial, administrative, arbitration or mediation proceeding. [1963 c.181 §1; 1971 c.412 §1; 1975 c.796 §11; 1977 c.448 §9; 1981 c.806 §1; 1991 c.225 §1; 1995 c.485 §1; 1997 c.791 §6; 1997 c.792 §§29,29a]

 

      41.680 [Repealed by 1981 c.892 §98]

 

      41.685 Inadmissibility of certain data relating to emergency medical services system. (1) All data shall be privileged and are not public records as defined in ORS 192.311 and shall not be admissible in evidence in any judicial proceeding except as provided under ORS 676.175. However, nothing in this section affects the admissibility in evidence of a party’s medical records dealing with a party’s medical care.

      (2) On request, an emergency medical service provider shall submit data not subject to ORS 676.175 to any committee or governing body of the county, counties or state as provided for by state or county administrative rule.

      (3) A person serving on or communicating information to any governing body or committee shall not be examined as to any communication to that body or committee or the findings thereof.

      (4) A person serving on or communicating information to any governing body or committee shall not be subject to an action for civil damages for affirmative actions taken or statements made in good faith.

      (5) As used in this section:

      (a) “Committee or governing body” means any committee or governing body that has authority to undertake an evaluation of an emergency medical services system as part of a quality assurance program and includes any committee of an emergency medical service provider undertaking a quality assurance program.

      (b) “Data” means all oral communications or written reports, notes or records provided to, or prepared by or for, a committee or governing body that are part of an evaluation of an emergency medical services system and includes any information submitted by any health care provider relating to training, supervision, performance evaluation or professional competency.

      (c) “Emergency medical service provider” means any public, private or volunteer entity providing prehospital functions and services that are required to prepare for and respond to medical emergencies including rescue, ambulance, treatment, communication and evaluation.

      (d) “Emergency medical services system” means those prehospital functions and services that are required to prepare for and respond to medical emergencies, including rescue, ambulance, treatment, communication and evaluation. [1989 c.1079 §1; 1997 c.791 §7; 1997 c.792 §30]

 

      41.690 [Repealed by 1981 c.892 §98]

 

      41.700 [Repealed by 1981 c.892 §98]

 

      41.710 [Repealed by 1981 c.892 §98]

 

      41.720 [Repealed by 1981 c.892 §98]

 

      41.730 [Repealed by 1981 c.892 §98]

 

      41.740 Parol evidence rule. When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be, between the parties and their representatives or successors in interest, no evidence of the terms of the agreement, other than the contents of the writing, except where a mistake or imperfection of the writing is put in issue by the pleadings or where the validity of the agreement is the fact in dispute. However this section does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, as defined in ORS 42.220, or to explain an ambiguity, intrinsic or extrinsic, or to establish illegality or fraud. The term “agreement” includes deeds and wills as well as contracts between parties.

 

      41.810 [Repealed by 1981 c.892 §98]

 

      41.815 Evidence of compliance with or attempt to comply with ORCP 32 I; when admissible. Attempts to comply with the provisions of ORCP 32 I by a person receiving a demand shall be construed to be an offer to compromise and shall be inadmissible as evidence. Such attempts to comply with a demand shall not be considered an admission of engaging in the act or practice alleged to be unlawful nor of the unlawfulness of that act. Evidence of compliance or attempts to comply with the provisions of ORCP 32 I may be introduced by a defendant for the purpose of establishing good faith or to show compliance with the provisions of ORCP 32 I. [Formerly 13.310; 1981 c.912 §3]

 

      41.820 [Repealed by 1981 c.892 §98]

 

      41.830 [Repealed by 1981 c.892 §98]

 

      41.840 [Repealed by 1981 c.892 §98]

 

      41.850 [Repealed by 1981 c.892 §98]

 

      41.860 [Repealed by 1981 c.892 §98]

 

      41.870 [Repealed by 1981 c.892 §98]

 

      41.880 [Repealed by 1981 c.892 §98]

 

      41.890 [Repealed by 1981 c.892 §98]

 

      41.900 [Repealed by 1981 c.892 §98]

 

      41.905 Admissibility in subsequent civil action of procedures in traffic crimes. A plea to a charge of a traffic crime, as defined in ORS 801.545, and any judgment of conviction or acquittal of a person charged with a traffic crime, as defined by ORS 801.545, are not admissible in the trial of a subsequent civil action arising out of the same accident or occurrence to prove or negate the facts upon which such judgment was rendered. [1975 c.542 §1; 1981 c.892 §87; 1999 c.1051 §242; 2007 c.784 §6; 2011 c.597 §30]

 

      41.910 Certain intercepted communications inadmissible. Evidence of the contents of any wire or oral communication intercepted:

      (1) In violation of ORS 165.540 shall not be admissible in any court of this state, except as evidence of unlawful interception or when the evidence was created by the use of a video camera worn upon a law enforcement officer’s person and the officer either substantially complied with or attempted in good faith to comply with ORS 165.540 (5)(d)(B).

      (2) Under ORS 165.540 (2)(a) shall not be admissible in any court of this state unless:

      (a) The communication was intercepted by a public official in charge of and at a jail, police premises, sheriff’s office, Department of Corrections institution or other penal or correctional institution; and

      (b) The participant in the communication, against whom the evidence is being offered, had actual notice that the communication was being monitored or recorded. [1955 c.675 §6; 1959 c.681 §5; 1979 c.716 §12; 1983 c.824 §4; 1993 c.178 §1; 2001 c.385 §5; 2015 c.550 §3]

 

      41.915 [1973 c.263 §1; repealed by 1979 c.284 §199]

 

      41.920 [1973 c.263 §2; repealed by 1979 c.284 §199]

 

      41.925 [1973 c.263 §3; repealed by 1979 c.284 §199]

 

      41.930 Admissibility of copies of original records. The copy of the records described in ORCP 55 H or ORS 136.447 is admissible in evidence to the same extent as though the original thereof were offered and a custodian of hospital records had been present and testified to the matters stated in the affidavit. The affidavit is admissible as evidence of the matters stated therein. The matters stated therein are presumed to be true. The presumption established by this section is a presumption affecting the burden of producing evidence. [1973 c.263 §4; 1979 c.284 §77; 1995 c.196 §4]

 

      41.935 [1973 c.263 §5; repealed by 1979 c.284 §199]

 

      41.940 [1973 c.263 §§6,7; repealed by 1979 c.284 §199]

 

      41.945 Application of ORS 41.930 and ORCP 55 H. ORS 41.930 and ORCP 55 H apply in any proceedings in which testimony may be compelled. [1973 c.263 §8; 1979 c.284 §78]

 

      41.950 [1971 c.331 §1; renumbered 18.500]

 

      41.960 [1971 c.331 §2; renumbered 18.520]

 

      41.970 [1971 c.331 §3; renumbered 18.530]

 

      41.980 [1971 c.331 §4; repealed by 1981 c.892 §98]

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