ORS 40.405¹
Rule 701. Opinion testimony by lay witnesses

If the witness is not testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to those opinions or inferences which are:

(1) Rationally based on the perception of the witness; and

(2) Helpful to a clear understanding of testimony of the witness or the determination of a fact in issue. [1981 c.892 §57]

(Rule 701)

Notes of Decisions

Witness’s state­ment that stain observed on defendant’s kitchen floor was fecal ma­te­ri­al was admissible because ra­tionally based on his work experience and helpful in determina­tion of a fact in issue, namely, whether child was strangled in defendant’s apart­ment. State v. Lerch, 63 Or App 707, 666 P2d 840 (1983), aff’d 296 Or 377, 677 P2d 678 (1984)

Although opinion testimony by lay witness must be based on per­sonal percep­tions, while expert witness may testify from facts made known at or before the hearing, lay witness and expert witness may testify as to the same subject matter. State v. Lerch, 296 Or 377, 677 P2d 678 (1984)

Where state­ment is admissible as admission of adverse party, opinion rule is inapplicable and trial court erred in excluding defendant’s state­ment. Washington v. Taseca Homes, Inc., 101 Or App 607, 792 P2d 453 (1990), aff’d 310 Or 783, 802 P2d 70 (1990)

While one trial witness may not testify about credibility of an­oth­er trial witness, rule does not preclude admission of relevant out-of-court state­ment phrased in form of opinion as to credibility of an­oth­er witness. State v. Odoms, 313 Or 76, 829 P2d 690 (1992)

Witness’s inference may be ra­tionally drawn notwithstanding that percep­tions from which inference is drawn are susceptible to more than one plausible interpreta­tion and would support more than one reasonable inference. State v. Barnes, 208 Or App 640, 145 P3d 261 (2006)

Appropriate standard of review of trial court’s determina­tion that witness is qualified to testify as expert is review for errors of law. State v. Dunning, 245 Or App 582, 263 P3d 372 (2011)

Where eyewitness identifica­tion evidence is presented, proponent of evidence must es­tab­lish by preponderance of evidence that identifica­tion is based on permissible evidentiary basis of which witness has per­sonal knowledge and that identifica­tion is helpful to determine face in issue. State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012)

Law Review Cita­tions

19 WLR 421 (1983)

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