2017 ORS 40.150¹
Rule 401. Definition of “relevant evidence”

Rule 401. Definition of “relevant evidence.” “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. [1981 c.892 §21]

(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 (Child neglect in the second degree), 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 (Sexual abuse in the first degree), 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)

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 (2017) (last ac­cessed Mar. 30, 2018).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 40, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano040.­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.