ORS 40.190¹
Rule 408. Compromise and offers to compromise

(1)(a) Evidence of furnishing or offering or promising to furnish, or accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.

(b) Evidence of conduct or statements made in compromise negotiations is likewise not admissible.

(2)(a) Subsection (1) of this section does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.

(b) Subsection (1) of this section also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. [1981 c.892 §28]

(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)

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