2015 ORS 40.460¹
Rule 803. Hearsay exceptions
  • availability of declarant immaterial

The following are not excluded by ORS 40.455 (Rule 802. Hearsay rule), even though the declarant is available as a witness:

(1) (Reserved.)

(2) A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

(3) A statement of the declarants then existing state of mind, emotion, sensation or physical condition, such as intent, plan, motive, design, mental feeling, pain or bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarants will.

(4) Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

(5) A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the memory of the witness and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

(6) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method of circumstances of preparation indicate lack of trustworthiness. The term business as used in this subsection includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(7) Evidence that a matter is not included in the memoranda, reports, records, or data compilations, and in any form, kept in accordance with the provisions of subsection (6) of this section, to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

(8) Records, reports, statements or data compilations, in any form, of public offices or agencies, including federally recognized American Indian tribal governments, setting forth:

(a) The activities of the office or agency;

(b) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, in criminal cases, matters observed by police officers and other law enforcement personnel;

(c) In civil actions and proceedings and against the government in criminal cases, factual findings, resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness; or

(d) In civil actions and criminal proceedings, a sheriffs return of service.

(9) Records or data compilations, in any form, of births, fetal deaths, deaths or marriages, if the report thereof was made to a public office, including a federally recognized American Indian tribal government, pursuant to requirements of law.

(10) To prove the absence of a record, report, statement or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement or data compilation, in any form, was regularly made and preserved by a public office or agency, including a federally recognized American Indian tribal government, evidence in the form of a certification in accordance with ORS 40.510 (Rule 902. Self-authentication), or testimony, that diligent search failed to disclose the record, report, statement or data compilation, or entry.

(11) Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) A statement of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a member of the clergy, a public official, an official of a federally recognized American Indian tribal government or any other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

(13) Statements of facts concerning personal or family history contained in family bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

(14) The record of a document purporting to establish or affect an interest in property, as proof of content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office, including a federally recognized American Indian tribal government, and an applicable statute authorizes the recording of documents of that kind in that office.

(15) A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

(16) Statements in a document in existence 20 years or more the authenticity of which is established.

(17) Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

(18) (Reserved.)

(18a)(a) A complaint of sexual misconduct, complaint of abuse as defined in ORS 107.705 (Definitions for ORS 107.700 to 107.735) or 419B.005 (Definitions), complaint of abuse of an elderly person, as those terms are defined in ORS 124.050 (Definitions for ORS 124.050 to 124.095), or a complaint relating to a violation of ORS 163.205 (Criminal mistreatment in the first degree) or 164.015 (Theft described) in which a person 65 years of age or older is the victim, made by the witness after the commission of the alleged misconduct or abuse at issue. Except as provided in paragraph (b) of this subsection, such evidence must be confined to the fact that the complaint was made.

(b) A statement made by a person concerning an act of abuse as defined in ORS 107.705 (Definitions for ORS 107.700 to 107.735) or 419B.005 (Definitions), a statement made by a person concerning an act of abuse of an elderly person, as those terms are defined in ORS 124.050 (Definitions for ORS 124.050 to 124.095), or a statement made by a person concerning a violation of ORS 163.205 (Criminal mistreatment in the first degree) or 164.015 (Theft described) in which a person 65 years of age or older is the victim, is not excluded by ORS 40.455 (Rule 802. Hearsay rule) if the declarant either testifies at the proceeding and is subject to cross-examination, or is unavailable as a witness but was chronologically or mentally under 12 years of age when the statement was made or was 65 years of age or older when the statement was made. However, if a declarant is unavailable, the statement may be admitted in evidence only if the proponent establishes that the time, content and circumstances of the statement provide indicia of reliability, and in a criminal trial that there is corroborative evidence of the act of abuse and of the alleged perpetrators opportunity to participate in the conduct and that the statement possesses indicia of reliability as is constitutionally required to be admitted. No statement may be admitted under this paragraph unless the proponent of the statement makes known to the adverse party the proponents intention to offer the statement and the particulars of the statement no later than 15 days before trial, except for good cause shown. For purposes of this paragraph, in addition to those situations described in ORS 40.465 (Rule 804. Hearsay exceptions when the declarant is unavailable) (1), the declarant shall be considered unavailable if the declarant has a substantial lack of memory of the subject matter of the statement, is presently incompetent to testify, is unable to communicate about the abuse or sexual conduct because of fear or other similar reason or is substantially likely, as established by expert testimony, to suffer lasting severe emotional trauma from testifying. Unless otherwise agreed by the parties, the court shall examine the declarant in chambers and on the record or outside the presence of the jury and on the record. The examination shall be conducted immediately prior to the commencement of the trial in the presence of the attorney and the legal guardian or other suitable person as designated by the court. If the declarant is found to be unavailable, the court shall then determine the admissibility of the evidence. The determinations shall be appealable under ORS 138.060 (Appeal by state) (1)(c) or (2)(a). The purpose of the examination shall be to aid the court in making its findings regarding the availability of the declarant as a witness and the reliability of the statement of the declarant. In determining whether a statement possesses indicia of reliability under this paragraph, the court may consider, but is not limited to, the following factors:

(A) The personal knowledge of the declarant of the event;

(B) The age and maturity of the declarant or extent of disability if the declarant is a person with a developmental disability;

(C) Certainty that the statement was made, including the credibility of the person testifying about the statement and any motive the person may have to falsify or distort the statement;

(D) Any apparent motive the declarant may have to falsify or distort the event, including bias, corruption or coercion;

(E) The timing of the statement of the declarant;

(F) Whether more than one person heard the statement;

(G) Whether the declarant was suffering pain or distress when making the statement;

(H) Whether the declarants young age or disability makes it unlikely that the declarant fabricated a statement that represents a graphic, detailed account beyond the knowledge and experience of the declarant;

(I) Whether the statement has internal consistency or coherence and uses terminology appropriate to the declarants age or to the extent of the declarants disability if the declarant is a person with a developmental disability;

(J) Whether the statement is spontaneous or directly responsive to questions; and

(K) Whether the statement was elicited by leading questions.

(c) This subsection applies to all civil, criminal and juvenile proceedings.

(d) This subsection applies to a child declarant, a declarant who is an elderly person as defined in ORS 124.050 (Definitions for ORS 124.050 to 124.095) or an adult declarant with a developmental disability. For the purposes of this subsection, developmental disability means any disability attributable to mental retardation, autism, cerebral palsy, epilepsy or other disabling neurological condition that requires training or support similar to that required by persons with mental retardation, if either of the following apply:

(A) The disability originates before the person attains 22 years of age, or if the disability is attributable to mental retardation the condition is manifested before the person attains 18 years of age, the disability can be expected to continue indefinitely, and the disability constitutes a substantial handicap to the ability of the person to function in society.

(B) The disability results in a significant subaverage general intellectual functioning with concurrent deficits in adaptive behavior that are manifested during the developmental period.

(19) Reputation among members of a persons family by blood, adoption or marriage, or among a persons associates, or in the community, concerning a persons birth, adoption, marriage, divorce, death, legitimacy, relationship by blood or adoption or marriage, ancestry, or other similar fact of a persons personal or family history.

(20) Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located.

(21) Reputation of a persons character among associates of the person or in the community.

(22) Evidence of a final judgment, entered after a trial or upon a plea of guilty, but not upon a plea of no contest, adjudging a person guilty of a crime other than a traffic offense, to prove any fact essential to sustain the judgment, but not including, when offered by the government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

(23) Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

(24) Notwithstanding the limits contained in subsection (18a) of this section, in any proceeding in which a child under 12 years of age at the time of trial, or a person with a developmental disability as described in subsection (18a)(d) of this section, may be called as a witness to testify concerning an act of abuse, as defined in ORS 419B.005 (Definitions), or sexual conduct performed with or on the child or person with a developmental disability by another, the testimony of the child or person with a developmental disability taken by contemporaneous examination and cross-examination in another place under the supervision of the trial judge and communicated to the courtroom by closed-circuit television or other audiovisual means. Testimony will be allowed as provided in this subsection only if the court finds that there is a substantial likelihood, established by expert testimony, that the child or person with a developmental disability will suffer severe emotional or psychological harm if required to testify in open court. If the court makes such a finding, the court, on motion of a party, the child, the person with a developmental disability or the court in a civil proceeding, or on motion of the district attorney, the child or the person with a developmental disability in a criminal or juvenile proceeding, may order that the testimony of the child or the person with a developmental disability be taken as described in this subsection. Only the judge, the attorneys for the parties, the parties, individuals necessary to operate the equipment and any individual the court finds would contribute to the welfare and well-being of the child or person with a developmental disability may be present during the testimony of the child or person with a developmental disability.

(25)(a) Any document containing data prepared or recorded by the Oregon State Police pursuant to ORS 813.160 (Methods of conducting chemical analyses) (1)(b)(C) or (E), or pursuant to ORS 475.235 (Burden of proof) (4), if the document is produced by data retrieval from the Law Enforcement Data System or other computer system maintained and operated by the Oregon State Police, and the person retrieving the data attests that the information was retrieved directly from the system and that the document accurately reflects the data retrieved.

(b) Any document containing data prepared or recorded by the Oregon State Police that is produced by data retrieval from the Law Enforcement Data System or other computer system maintained and operated by the Oregon State Police and that is electronically transmitted through public or private computer networks under an electronic signature adopted by the Oregon State Police if the person receiving the data attests that the document accurately reflects the data received.

(c) Notwithstanding any statute or rule to the contrary, in any criminal case in which documents are introduced under the provisions of this subsection, the defendant may subpoena the analyst, as defined in ORS 475.235 (Burden of proof) (6), or other person that generated or keeps the original document for the purpose of testifying at the preliminary hearing and trial of the issue. Except as provided in ORS 44.550 (Definitions for ORS 44.550 to 44.566) to 44.566 (Provisions not applicable if public body a party), no charge shall be made to the defendant for the appearance of the analyst or other person.

(26)(a) A statement that purports to narrate, describe, report or explain an incident of domestic violence, as defined in ORS 135.230 (Definitions for ORS 135.230 to 135.290), made by a victim of the domestic violence within 24 hours after the incident occurred, if the statement:

(A) Was recorded, either electronically or in writing, or was made to a peace officer as defined in ORS 161.015 (General definitions), corrections officer, youth correction officer, parole and probation officer, emergency medical services provider or firefighter; and

(B) Has sufficient indicia of reliability.

(b) In determining whether a statement has sufficient indicia of reliability under paragraph (a) of this subsection, the court shall consider all circumstances surrounding the statement. The court may consider, but is not limited to, the following factors in determining whether a statement has sufficient indicia of reliability:

(A) The personal knowledge of the declarant.

(B) Whether the statement is corroborated by evidence other than statements that are subject to admission only pursuant to this subsection.

(C) The timing of the statement.

(D) Whether the statement was elicited by leading questions.

(E) Subsequent statements made by the declarant. Recantation by a declarant is not sufficient reason for denying admission of a statement under this subsection in the absence of other factors indicating unreliability.

(27) A report prepared by a forensic scientist that contains the results of a presumptive test conducted by the forensic scientist as described in ORS 475.235 (Burden of proof), if the forensic scientist attests that the report accurately reflects the results of the presumptive test.

(28)(a) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that:

(A) The statement is relevant;

(B) The statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts; and

(C) The general purposes of the Oregon Evidence Code and the interests of justice will best be served by admission of the statement into evidence.

(b) A statement may not be admitted under this subsection unless the proponent of it makes known to the adverse party the intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing, or as soon as practicable after it becomes apparent that such statement is probative of the issues at hand, to provide the adverse party with a fair opportunity to prepare to meet it. [1981 c.892 §64; 1989 c.300 §1; 1989 c.881 §1; 1991 c.391 §1; 1995 c.200 §1; 1995 c.476 §1; 1995 c.804 §2; 1999 c.59 §13; 1999 c.674 §1; 1999 c.945 §1; 2001 c.104 §11; 2001 c.533 §1; 2001 c.870 §5; 2003 c.538 §2; 2005 c.118 §3; 2007 c.63 §2; 2007 c.70 §12; 2007 c.636 §3; 2009 c.610 §9; 2011 c.661 §14; 2011 c.703 §21]

(Rule 803)

See also annota­tions under ORS 41.670, 41.680, 41.690, 41.840, 41.870 and 41.900 in permanent edi­tion.

Notes of Decisions

Under Former Similar Statutes

Records of regularly con­ducted ac­tivity (ORS 41.690)

This sec­tion vests considerable discre­tion in trial judge concerning admissibility. Stanfield v. Laccoarce, 284 Or 651, 588 P2d 1271 (1978)

Whether routinely prepared record is made within regular course of business depends on whether circumstances under which record is made furnish sufficient checks against misstate­ment to invest record with some badge of truthfulness. Lepire v. Motor Vehicles Div., 47 Or App 67, 613 P2d 1084 (1980)

Excited utterance (ORS 41.870)

Declara­tions of rape victim identifying her attacker that were made more than hour after attack were admissible under spontaneous exclama­tion excep­tion to hearsay rule. State v. Wilson, 20 Or App 553, 532 P2d 825 (1975)

Victims initial communica­tion with police, consisting of five-minute telephone conversa­tion, was spontaneous exclama­tion within excep­tion to hearsay rule. State v. Jones, 27 Or App 767, 557 P2d 264 (1976), Sup Ct review denied

Under Evidence Code

In general

This Rule permits of­fi­cer who testifies in crim­i­nal trial to read relevant parts of his report into record when he has insufficient present recollec­tion to testify fully and accurately. State v. Scally, 92 Or App 149, 758 P2d 365 (1988)

Hearsay state­ment may not be admitted over Confronta­tion Clause objec­tion unless pros­e­cu­­tion produces declarant or demonstrates unavailability of declarant. State v. Wilcox, 180 Or App 557, 43 P3d 1182 (2002), Sup Ct review denied

Hearsay state­ment does not violate confronta­tion right where declarant is unavailable or is available, actually present and ready to testify. State v. Crain, 182 Or App 446, 50 P3d 1206 (2002)

If victims state­ments relate victims memory of past inten­tion and present conclusions about past event, and conclusions are based on reflec­tion of past, state­ments are inadmissible as state­ments of memory and belief. State v. Richardson, 253 Or App 75, 288 P3d 995 (2012), Sup Ct review denied

Excited utterance

Out-of-court state­ments made by four-year old child describing sexual assaults that might have occurred as much as 30 days earlier were not properly admissible as excited utterance excep­tion to hearsay rule. State v. Hollywood, 67 Or App 546, 680 P2d 655 (1984), Sup Ct review denied

State­ments made by four-year old victim to her mother about alleged sexual attack were made within short period of time with no intervening opportunity for outside influence and therefore it was not error to admit them as excited utterances. State v. Mace, 67 Or App 753, 681 P2d 140 (1984), Sup Ct review denied

Where victim of sexual miscon­duct is incompetent to testify because of age, unexcited hearsay declara­tions of sexual miscon­duct are admissible through excep­tion to rule against hearsay. State v. Harris, 78 Or App 490, 712 P2d 242 (1986)

State­ments to 911 dispatcher and state­ments made to responding police of­fi­cer qualified as excited utterances. State v. Wolfs, 119 Or App 262, 850 P2d 1139 (1993), Sup Ct review denied

State­ment is related to startling event if subject of state­ment would likely be evoked by event. State v. Stonaker, 149 Or App 728, 945 P2d 573 (1997), Sup Ct review denied; State v. Yong, 206 Or App 522, 138 P3d 37 (2006), Sup Ct review denied

Admission of hearsay state­ment consisting of excited utterance is not exempt from state constitu­tional require­ment that declarant be unavailable. State v. Moore, 159 Or App 144, 978 P2d 395 (1999), affd 334 Or 328, 49 P3d 785 (2002)

Hearsay state­ment is admissible based on declarant unavailability only if state is unable to produce declarant as witness. State v. Jackson, 187 Or App 679, 69 P3d 722 (2003)

Appellate review of trial courts findings re­gard­ing circumstances of state­ment is for supporting evidence in record, but appellate review of trial courts legal conclusion that state­ment is or is not excited utterance uses error of law standard. State v. Cunningham, 337 Or 528, 99 P3d 271 (2004)

Where defendant assaulted and threatened victim then held victim captive after assault, and victim made state­ments to third party upon victims escape 24 hours after assault, victims state­ments were excited utterance as used in this sec­tion because victim was under continuous emo­­tion­al shock or unabated fright when victim made state­ments. State v. Underwood, 266 Or App 274, 337 P3d 969 (2014), Sup Ct review denied

State­ments of state of mind

State­ments by mur­der victim to friends that indicated that victim did not like defendant were admissible to show that victim did not voluntarily have sexual intercourse with defendant even though state­ment suggested something about con­duct of defendant. State v. Engweiler, 118 Or App 132, 846 P2d 1163 (1993), Sup Ct review denied

State­ment re­gard­ing intent of declarant to engage in ac­tion is not evidence of likely ac­tion by an­oth­er per­son. Holmes v. Morgan, 135 Or App 617, 899 P2d 738 (1995), Sup Ct review denied

State­ment that merely reflects or that reasonably supports inference re­gard­ing declarants state of mind constitutes asser­tion of declarants state of mind. State v. Clegg, 332 Or 432, 31 P3d 408 (2001)

State­ments made for purposes of medical diagnosis or treat­ment

When it is shown that physician reasonably relied on child-victims identifica­tion of her abuser as member of her family in diagnosing and treating victim, physicians testimony about victims identifica­tion of her abuser is admissible. State v. Vosika, 83 Or App 298, 731 P2d 449 (1987)

Testimony of two physicians, including victims identifica­tion of defendant as per­son who had sexually abused her, was admissible as state­ment for medical diagnosis or treat­ment because physician would reasonably rely on state­ments and record supports finding that victim understood she was being interviewed and examined for diagnosis and treat­ment. State v. Newby, 97 Or App 598, 777 P2d 994 (1989), Sup Ct review denied

Where patients state­ments to physician about defendants presence in her home, his abusive con­duct, and her resulting fears com­mu­ni­cated to physician ongoing cause of patients situa­tional depression and were used to diagnose and treat patients illness, state­ments were admissible under this sec­tion. State v. Moen, 309 Or 45, 786 P2d 111 (1990)

State­ments made by child victim to physician and to physicians assistant about sexual abuse by defendant were admissible as state­ments made for purposes of medical diagnosis or treat­ment, even though reason victim was taken to physician was for possible diagnosis of sexual abuse. State v. Logan, 105 Or App 556, 806 P2d 137 (1991); State v. Barkley, 108 Or App 756, 817 P2d 1328 (1991), affd 315 Or 420, 846 P2d 390 (1993); State ex rel Juv. Dept. v. Jackson, 122 Or App 389, 858 P2d 158 (1993), Sup Ct review denied

Videotaped interview of child victim of sexual abuse was admissible because interview was for purpose of diagnosing childs condi­tion and prescribing treat­ment. State v. Verley, 106 Or App 751, 809 P2d 723 (1991), Sup Ct review denied; State v. Barkley, 108 Or App 756, 817 P2d 1328 (1991), affd 315 Or 420, 846 P2d 390 (1993); State ex rel Juv. Dept. v. Cornett, 121 Or App 264, 855 P2d 171 (1993)

Admissibility of videotape depends on admissibility of state­ments contained in it. State v. Verley, 106 Or App 751, 809 P2d 723 (1991), Sup Ct review denied; State v. Barkley, 108 Or App 756, 817 P2d 1328 (1991), affd 315 Or 420, 846 P2d 390 (1993)

Identifica­tion state­ment made by five-year old child to physician during medical examina­tion is admissible in pros­e­cu­­tion for sexual abuse of child. State v. Alvarez, 110 Or App 230, 822 P2d 1207 (1991), Sup Ct review denied

Testimony by nurse who ques­tioned child about cause of childs severe burns was admissible as state­ment for medical diagnosis or treat­ment because child made state­ments for purpose of medical diagnosis by nurse. State v. Jensen, 313 Or 587, 837 P2d 525 (1992)

State­ments made by medical expert concerning medical diagnosis or treat­ment of child abuse, although supporting childs testimony, are admissible and are not direct com­ment on childs credibility. State v. Wilson, 121 Or App 460, 855 P2d 657 (1993), Sup Ct review denied

Videotape of childs interview with per­sonnel at hospital-based child abuse evalua­tion center was admissible because childs state­ments to interviewer met all three require­ments of hearsay excep­tion for state­ments made for purposes of medical diagnosis or treat­ment. State v. Wilson, 121 Or App 460, 855 P2d 657 (1993), Sup Ct review denied

Whether child is old enough to understand that ques­tions are part of medical exam is based on circumstances, not chronological age of child. State v. Booth, 124 Or App 282, 862 P2d 518 (1993), Sup Ct review denied

Where state­ment meets require­ments of excep­tion, state­ment may originate with per­son other than declarant or per­son being diagnosed or treated. State ex rel Juvenile Dept. v. Pfaff, 164 Or App 470, 994 P2d 147 (1999), Sup Ct review denied

Public records

Certificates of breathalyzer inspec­tions are admissible under public records excep­tion to hearsay rule. State v. Smith, 66 Or App 703, 675 P2d 510 (1984)

Admissibility of Intoxilyzer certifica­tions as public records excep­tion to hearsay rule does not violate constitu­tional right to confronta­tion of witnesses. State v. Conway, 70 Or App 721, 690 P2d 1128 (1984), Sup Ct review denied; State v. William, 199 Or App 191, 110 P3d 1114 (2005), Sup Ct review denied

Public records excep­tion for certified copy of docu­ment does not apply to original docu­ment newly created by data retrieval from Law Enforce­ment Data System and attested to by per­son performing retrieval. State v. Barber, 209 Or App 604, 149 P3d 260 (2006), Sup Ct review denied

Warrants are admissible under public records excep­tion to hearsay rule. State v. Carter, 238 Or App 417, 241 P3d 1205 (2010), Sup Ct review denied

Investigative reports

Factual findings resulting from investiga­tion pursuant to law are limited to reports based upon per­sonal knowledge of investigator or upon verifiable fact rather than opinion. Sleigh v. Jenny Craig Weight Loss Centres, Inc., 161 Or App 262, 984 P2d 891 (1999), modified 163 Or App 20, 988 P2d 916 (1999)

Complaint of sexual miscon­duct

Testimony of mother recounting state­ment made by three-year-old victim to mother about sexual attacks by defendant were admissible as excep­tion to hearsay rule allowing complaint of sexual miscon­duct by prosecuting witnesses; it is unnecessary for child victim to testify as precondi­tion for admission of childs complaint of sexual miscon­duct. State v. Campbell, 299 Or 633, 705 P2d 694 (1985)

Out of court state­ment by unavailable child concerning abuse of an­oth­er child was not within scope of excep­tion. State v. Hill, 129 Or App 180, 877 P2d 1230 (1994)

For purposes of require­ment that proponent make inten­tion to offer hearsay state­ment known to adverse party no later than 15 days before trial, trial begins on scheduled trial date unless postpone­ment has been granted. State v. Iverson, 185 Or App 9, 57 P3d 953 (2002), Sup Ct review denied

State­ments concerning abuse include victims whole expression of abuse and how victim related that expression to others. State v. Hobbs, 218 Or App 298, 179 P3d 682 (2008), Sup Ct review denied

To offer particulars of state­ment, state must identify specifically which hearsay state­ments it will offer as evidence. State v. Chase, 240 Or App 541, 248 P3d 432 (2011)

State­ment made by special victim of sexual con­duct

Inten­tion of legislature under this rule is that defendant not be convicted on hearsay alone. State v. Renly, 111 Or App 453, 827 P2d 1345 (1992)

State­ment by unavailable declarant is not admissible unless addi­tional evidence corroborates state­ment. State v. Renly, 111 Or App 453, 827 P2d 1345 (1992)

Victim recanta­tion of prior state­ments does not render otherwise competent victim unable to com­mu­ni­cate or testify in court. State v. Higgins, 136 Or App 590, 902 P2d 612 (1995)

Where de­fense counsel was prohibited from cross-examining child at pretrial availability hearing, admission of hearsay state­ments by child violated defendants confronta­tion right. State v. Kitzman, 323 Or 589, 920 P2d 134 (1996)

Where victim testifies and is available for cross-examina­tion, child means unmarried per­son under 18 years of age. State v. Lamb, 161 Or App 66, 983 P2d 1058 (1999)

As Prerequisite to Admitting Hearsay State­ment By Unavailable Declarant, Court Must

1) determine that state­ment is circumstantially reliable; 2) determine whether independent admissible or nonadmissible corroborating evidence supports admission of state­ment; and 3) make ex­plic­it findings as to evidence relied upon for corrobora­tion. State v. Reed, 173 Or App 185, 21 P3d 137 (2001), Sup Ct review denied

Where there are multiple hearsay state­ments by declarant, corroborative evidence need not bear directly or distinctly on particular state­ment. State v. Reed, 173 Or App 185, 21 P3d 137 (2001), Sup Ct review denied

Good cause for failure to give timely notice of intent to use state­ment refers to circumstances that cause pros­e­cu­­tion to be unable to comply with notice require­ment. State v. McKinzie, 186 Or App 384, 63 P3d 1214 (2003), Sup Ct review denied

Inclusion of state­ment in discovery provided to defendant does not satisfy require­ment that pros­e­cu­­tion provide timely notice of intent to present state­ment at trial. State v. McKinzie, 186 Or App 384, 63 P3d 1214 (2003), Sup Ct review denied

Domestic violence

Other evidence presented at trial that corroborates truth of hearsay state­ment cannot be used to show state­ment itself has particularized guarantees of trustworthiness. State v. Wilcox, 180 Or App 557, 43 P3d 1182 (2002), Sup Ct review denied

Residual excep­tions

Spontaneous state­ments made by four-year-old child while she was still suffering pain from sexual assault were made under circumstances guaranteeing trustworthiness and were, therefore, admissible under this excep­tion to hearsay rule. State v. Hollywood, 67 Or App 546, 680 P2d 655 (1984), Sup Ct review denied

Excep­tion embodied in this sec­tion is to be used rarely and only in situa­tions where interest of justice requires. Star Rentals v. Seeberg Constr., 83 Or App 44, 730 P2d 573 (1986)

Excep­tion for docu­ment retrieved from Law Enforce­ment Data System and attested to by per­son performing retrieval applies only to docu­ment newly created by retrieval, not to certified copies. State v. Barber, 209 Or App 604, 149 P3d 260 (2006), Sup Ct review denied

Residual excep­tion as basis for admission of hearsay ordinarily may not be asserted for first time on ap­peal. State v. Rodriguez-Castillo, 345 Or 39, 188 P3d 268 (2008)

When determining trustworthiness of hearsay state­ment not specifically covered by statute, trial courts should not consider credibility of witness who provides corroborating testimony. State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491, 256 P3d 104 (2011)

Completed Cita­tions (For ORS 41.900 In Permanent Edi­tion)

State v. OBrien, 6 Or App 34, 485 P2d 434, 486 P2d 592 (1971), affd262 Or 30, 496 P2d 191 (1972)

Law Review Cita­tions

Under Evidence Code

22 WLR 421 (1986); 26 WLR 402, 406, 423 (1990); 37 WLR 299 (2001); 82 OLR 1125 (2003)

Chapter 40

(Generally)

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), affd 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 (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 40, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano040.­html (2015) (last ac­cessed Jul. 16, 2016).
 
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.