2017 ORS 10.095¹
Duty of jury
  • instructions

The jury, subject to the control of the court, in the cases specified by statute, are the judges of the effect or value of evidence addressed to them, except when it is thereby declared to be conclusive. They are, however, to be instructed by the court on all proper occasions:

(1) That their power of judging of the effect of evidence is not arbitrary, but to be exercised with legal discretion, and in subordination to the rules of evidence;

(2) That they are not bound to find in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number, or against a presumption or other evidence satisfying their minds;

(3) That a witness false in one part of the testimony of the witness may be distrusted in others;

(4) That the testimony of an accomplice ought to be viewed with distrust, and the oral admissions of a party with caution;

(5) That in civil cases the affirmative of the issue shall be proved, and when the evidence is contradictory, the finding shall be according to the preponderance of evidence;

(6) That in criminal cases a person is innocent of a crime or wrong until the prosecution proves otherwise, and guilt shall be established beyond reasonable doubt;

(7) That evidence is to be estimated, not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict; and, therefore,

(8) That if weaker and less satisfactory evidence is offered when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust. [Formerly 17.250; 2013 c.25 §1]

(formerly 17.250)

See also annota­tions under ORS 17.250 in permanent edi­tion.

In General

Jury as judge of evidence

Court control

Conclusive evidence

Statutory Jury Instruc­tions

Admissions and accomplice testimony

Proof, civil cases

Proof, crim­i­nal cases

Evidence evalua­tion

Weaker and less satisfactory evidence

Notes of Decisions

In General

Jury as judge of evidence

Defendant is entitled to have theory of case presented to jury if there is evidence to support it. State v. Allison, 16 Or App 544, 519 P2d 393 (1974)

Under facts of rear-end collision case, court did not err in submitting ques­tion of both plaintiff’s and defendant’s negligence to jury. Berg v. Mengore, 271 Or 530, 533 P2d 801 (1975)

Court control

Where there is substantial direct evidence of guilt it is not error to refuse to instruct on law of circumstantial evidence. State v. Johnson, 18 Or App 502, 525 P2d 1077 (1974)

Refusal of trial court to give abstract instruc­tions is not reversible error. Abel v. Cone, 268 Or 339, 520 P2d 899 (1974)

Conclusive evidence

When uncontradicted testimony of witness is clear and convincing and so plain and complete that disbelief of story could not reasonably arise in ra­tional process of ordinarily intelligent mind, then ques­tion of credibility of witness may be withheld from jury and plaintiff nonsuited. Palmer v. Van Petten Lbr. Co., 265 Or 347, 509 P2d 420 (1973)

Statutory Jury Instruc­tions

Admissions and accomplice testimony

Court did not err in adding to statutory instruc­tion that credibility of accomplice was for jury to pass upon in same manner as with any other witness. State v. Partee, 32 Or App 117, 573 P2d 751 (1978), Sup Ct review denied

Where state­ments by defendant could be construed as admissions, trial court erred by refusing to give requested cau­tionary instruc­tion about admission by defendant. State v. Swee, 51 Or App 249, 624 P2d 1108 (1981)

Failure to give requested and unopposed instruc­tion was reversible error where tape recording of defendant’s state­ments played for jury was incomplete. State v. McKenna, 67 Or App 662, 679 P2d 346 (1984)

Accomplice-witness instruc­tion should be given only if testimony of accomplice implicates defendant. State v. Simson, 308 Or 102, 775 P2d 837 (1989)

Accomplice-as-matter-of-law instruc­tion should not be given unless defendant requests it. State v. Simson, 308 Or 102, 775 P2d 837 (1989)

Where accomplice-witness-as-matter-of-law instruc­tion benefits defendant, instruc­tion does not amount to di­rected verdict that defendant is guilty. State v. Oatney, 335 Or 276, 66 P3d 475 (2003)

Where no dispute exists that crime was committed, accomplice-witness-as-matter-of-law instruc­tion does not amount to di­rected verdict that defendant is guilty. State v. Oatney, 335 Or 276, 66 P3d 475 (2003)

Accomplice-witness instruc­tion is proper if accomplice testimony implicates defendant, but not if testimony is exculpatory. State v. Rambert, 216 Or App 39, 171 P3d 398 (2007)

Proof, civil cases

Incorrect instruc­tion that willful viola­tion of Unlawful Trade Practices Act must be es­tab­lished by clear and convincing evidence was not harmless error. State ex rel Redden v. Discount Fabrics, 289 Or 375, 615 P2d 1034 (1980)

Instruc­tion that burden of proof was clear and convincing evidence for civil case alleging common law fraud was proper. Mutual of Enumclaw Ins. v. McBride, 295 Or 398, 667 P2d 494 (1983)

Jury should be instructed that burden of proof for basic ele­ments of common law deceit is clear and convincing evidence, but burden of proof for damages is preponderance. Riley Hill General Contractor v. Tandy Corp., 303 Or 390, 737 P2d 595 (1987)

This sec­tion requires that jury be instructed to apply preponderance standard “on all proper occasions,” thus leaving some discre­tion for court to decide which cases are proper for such instruc­tion and which are not. Riley Hill General Contractor v. Tandy Corp., 303 Or 390, 737 P2d 595 (1987)

Deceit requires intermediate measure of proof between civil and crim­i­nal with each ele­ment of civil ac­tion for deceit proved by clear and convincing evidence, which means truth of facts asserted is highly probable. Riley Hill General Contractor v. Tandy Corp., 303 Or 390, 737 P2d 595 (1987)

This sec­tion does not entitle defendant in sen­ten­cing pro­ceed­ing to instruc­tion that jury could consider unadjudicated crim­i­nal con­duct of defendant only if jury found beyond reasonable doubt that defendant engaged in unadjudicated con­duct. State v. Tucker, 315 Or 321, 845 P2d 904 (1993)

Proof, crim­i­nal cases

Instruc­tion on, inter alia, burden of proof, where court told jury that defendant had no burden in crim­i­nal case, was not error. State v. Marling, 19 Or App 811, 529 P2d 957 (1974), Sup Ct review denied

Instruc­tion having effect of com­menting on defendant’s failure to testify in own behalf was not reversible error where evidence of defendant’s guilt was overwhelming. State v. Philpott, 33 Or App 589, 577 P2d 96 (1978)

Instruc­tion that one ele­ment of crime could be presumed by es­tab­lishing an­oth­er ele­ment of crime was reversible error. State v. Rainey, 298 Or 459, 693 P2d 635 (1985)

Trial court did not err by not defining reasonable doubt because instruc­tions did not mislead jury to believe that it could convict defendant on lesser de­gree of proof. State v. Castrejon, 114 Or App 297, 834 P2d 528 (1992), aff’d 317 Or 202, 856 P2d 616 (1993)

Evidence evalua­tion

If jury finds expert evidence does not carry con­vic­­tion over other evidence in case, jury may make factual determina­tion based on other evidence. State v. Siens, 12 Or App 97, 504 P2d 1056 (1973), Sup Ct review denied

Two factors to be considered in deciding whether jury should be permitted to draw inferences contrary to uncontradicted testimony are (1) availability of evidence to contradict witness’s state­ment and (2) likelihood that witness’s interest in litiga­tion may tempt him to testify falsely. Palmer v. Van Petten Lbr. Co., 265 Or 347, 509 P2d 420 (1973)

Inability of witness to physically identify defendant goes to weight of testimony, not competency. State v. Addicks, 28 Or App 663, 560 P2d 1095 (1977)

Instruc­tion having effect of com­menting on defendant’s failure to testify in own behalf was not reversible error where evidence of defendant’s guilt was overwhelming. State v. Philpott, 33 Or App 589, 577 P2d 96 (1978)

As factfinder in bar disciplinary pro­ceed­ing, Supreme Court should use rule for evaluating evidence just as jury uses it in trying case. In re Holman, 297 Or 36, 682 P2d 243 (1984)

Weaker and less satisfactory evidence

Principle contained in instruc­tion applies to es­tab­lishing injury in worker’s compensa­tion claim. Roberts v. SAIF, 18 Or App 590, 526 P2d 445 (1974)

Instruc­tion having effect of com­menting on defendant’s failure to testify in own behalf was not reversible error where evidence of defendant’s guilt was overwhelming. State v. Philpott, 33 Or App 589, 577 P2d 96 (1978)

Instruc­tion is proper where other evidence was reasonably available on fact in issue, and there is basis for jury to conclude other evidence is stronger and more satisfactory than evidence offered. Whaley v. Russell Stover Candies, Inc., 44 Or App 541, 606 P2d 667 (1980); State v. McDonnell, 313 Or 478, 837 P2d 941 (1992)

In pros­e­cu­­tion for theft, possibility that state could have by more diligent investiga­tion obtained record from manufacturer of serial numbers of stolen prop­erty did not mean that such evidence was “within the power of the state to produce,” and, thus, instruc­tion to effect that if state offers weaker and less satisfactory evidence when more satisfactory evidence is available, evidence should be viewed with suspicion was not justified. State v. Brock, 53 Or App 785, 633 P2d 805 (1981), aff’d 294 Or 15, 653 P2d 543 (1982)

The “weaker and less satisfactory evidence” instruc­tion should not be given in crim­i­nal cases whether or not defendant takes stand, except in those rare instances where because of an asserted de­fense defendant has the burden of proof on an issue in the case. State v. Mains, 295 Or 640, 669 P2d 1112 (1983)

Failure to give requested instruc­tion with regard to evidence presented by state was not error where record did not indicate that state had stronger evidence but failed to produce it. State v. Sellers, 76 Or App 552, 709 P2d 768 (1985), Sup Ct review denied; State v. McDonnell, 313 Or 478, 837 P2d 941 (1992)

Completed Cita­tions

State v. Dixon, 5 Or App 113, 481 P2d 629 (1971), Sup Ct review denied, cert. denied, 403 US 928 (1971)

Law Review Cita­tions

50 OLR 311, 313, 314 (1971); 7 WLJ 479 (1971)

1 Legislative Counsel Committee, CHAPTER 10—Juries, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors010.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 10, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano010.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.