ORS 40.025¹
Rule 103. Rulings on evidence

(1) Evidential error is not presumed to be prejudicial. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and:

(a) In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(b) In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

(2) The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made and the ruling thereon. It may direct the making of an offer in question and answer form.

(3) In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(4) Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. [1981 c.892 §4]

(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

Chapter 40


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)

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.

1 Legislative Counsel Committee, CHAPTER 40—Evidence Code, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors040.­html (2019) (last ac­cessed May 16, 2020).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 40, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano040.­html (2019) (last ac­cessed May 16, 2020).
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. Currency Information