2015 ORS 40.465¹
Rule 804. Hearsay exceptions when the declarant is unavailable

(1) "Unavailability as a witness" includes situations in which the declarant:

(a) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of a statement;

(b) Persists in refusing to testify concerning the subject matter of a statement despite an order of the court to do so;

(c) Testifies to a lack of memory of the subject matter of a statement;

(d) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(e) Is absent from the hearing and the proponent of the declarant’s statement has been unable to procure the declarant’s attendance (or in the case of an exception under subsection (3)(b), (c) or (d) of this section, the declarant’s attendance or testimony) by process or other reasonable means.

(2) A declarant is not unavailable as a witness if the declarant’s exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant’s statement for the purpose of preventing the witness from attending or testifying.

(3) The following are not excluded by ORS 40.455 (Rule 802. Hearsay rule) if the declarant is unavailable as a witness:

(a) Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(b) A statement made by a declarant while believing that death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

(c) A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

(d)(A) A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood or adoption or marriage, ancestry, or other similar fact of personal or family history, even though the declarant had no means of acquiring personal knowledge of the matter stated; or

(B) A statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared.

(e) A statement made at or near the time of the transaction by a person in a position to know the facts stated therein, acting in the person’s professional capacity and in the ordinary course of professional conduct.

(f) A statement offered against a party who intentionally or knowingly engaged in criminal conduct that directly caused the death of the declarant, or directly caused the declarant to become unavailable as a witness because of incapacity or incompetence.

(g) A statement offered against a party who engaged in, directed or otherwise participated in wrongful conduct that was intended to cause the declarant to be unavailable as a witness, and did cause the declarant to be unavailable.

(h) 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 offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which 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. However, a statement may not be admitted under this paragraph 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 the 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 §65; 2005 c.458 §1]

(Rule 804)

See also annota­tions under ORS 41.830, 41.840, 41.850, 41.860, 41.870, 41.890 and 41.900 in permanent edi­tion.

Notes of Decisions

Under Former Similar Statutes

State­ment made in professional capacity (ORS 41.860)

Records made in professional capacity in ordinary course of professional con­duct were admissible even though they included state­ments of opinion. Williams v. Laurence-David, Inc., 271 Or 712, 534 P2d 173 (1975)

Court does not have discre­tion re­gard­ing admissibility of record qualifying under excep­tion for records of professional. Williams v. Laurence-David, Inc., 271 Or 712, 534 P2d 173 (1975)

Former testimony (ORS 41.900)

Where absent witness is party to ac­tion, admission of former testimony requires showing of necessity that witness cannot per­sonally appear. Rogers v. Donovan, 268 Or 24, 518 P2d 1306 (1974)

In crim­i­nal trial, testimony given by absent declarant as witness at an­oth­er hearing is not admissible unless pros­e­cu­­tion has made substantial effort to procure attendance of declarant. State v. Smyth, 286 Or 293, 593 P2d 1166 (1979)

Under Evidence Code

Where pros­e­cu­­tion's key witness invoked Fifth Amend­ment privilege and refused to testify in retrial, testimony at first trial was admissible against defendant; witness was "unavailable" through no fault of prosecutor though plea agree­ment between witness and prosecutor only re­quired witness' testimony at first trial, not at sub­se­quent retrials. State v. Brooks, 64 Or App 404, 668 P2d 466 (1983), Sup Ct review denied

Paragraph (3)(f), the residual excep­tion, is available only if evidence is not admissible under any other excep­tion; where eight year old child testified that she did not remember telling psychologist or case worker about sexual contact with respondent, testimony of psychologist and case worker narrating in detail substance of child's complaint to them was not admissible because of specific hearsay excep­tion for evidence of complaint of sexual miscon­duct under ORS 40.460 (Rule 803. Hearsay exceptions) (Rule 803). State ex rel Children's Services Division v. Page, 66 Or App 535, 674 P2d 1196 (1984)

Where dying victim was unable to speak, evidence was sufficient for trial court to conclude that victim understood ques­tions of sheriff's depart­ment of­fi­cer and was able to com­mu­ni­cate by employing hand signal system used between of­fi­cer and victim. State v. Holterman, 69 Or App 509, 687 P2d 1097 (1984), Sup Ct review denied

In pros­e­cu­­tion for sexual assault of child, victim's state­ments to her mother were admissible hearsay under residual excep­tion, paragraph (3)(f), where declarant was incompetent to testify and state­ments were made in circumstances guaranteeing trustworthiness. State v. Bounds, 71 Or App 744, 694 P2d 566 (1984), Sup Ct review denied

Where defendant was charged with assault, victim testified that she could not remember any physical contact between herself and defendant and police of­fi­cer testified about state­ments victim had made to him, state­ments were not admissible under residual excep­tions to hearsay rule because they lacked sufficient guarantee of trustworthiness. State v. Apper­son, 85 Or App 429, 736 P2d 1026 (1987)

Where defendant availed self of opportunity to cross-examine witness at preliminary hearing and motives for develop­ment of testimony at hearing were similar to that at trial and witness was "unavailable" within meaning of this sec­tion, trial court did not err in admitting in evidence testimony at preliminary hearing of witness who was absent from trial. State v. Montgomery, 88 Or App 163, 744 P2d 592 (1987), Sup Ct review denied

Where nothing in text of ORS 40.460 (Rule 803. Hearsay exceptions) limits rule's applica­tion to prior testimony given in same crim­i­nal pros­e­cu­­tion and rule does not require mutuality of parties, transcripts from crim­i­nal pros­e­cu­­tions in an­oth­er state based upon different crim­i­nal con­duct were admissible. State v. Moen, 309 Or 45, 786 P2d 111 (1990)

Where defendant had opportunity at security release hearing and motive to develop testimony similar to motive at trial, witnesses' testimony during security release hearing was admissible at defendant's trial. State v. Douglas, 310 Or 438, 800 P2d 288 (1990)

Wife's out-of-court state­ment that she had seen defendant driving and thought he was intoxicated was not admissible under hearsay excep­tion for state­ments against pecuniary interest. State v. Lyman, 107 Or App 390, 812 P2d 23 (1991)

Trial court did not err in admitting uncorroborated hearsay evidence of confession since corrobora­tion is re­quired only of exculpatory state­ments. State v. Tucker, 109 Or App 519, 820 P2d 834 (1991), Sup Ct review denied

Trial court properly ruled that witness was not available to testify where there was testimony that witness had no long-term memory to speak of, was unable to travel because of physical and mental health and hospital records reflected moderate impair­ment of gross memory abilities. State v. Pinnell, 311 Or 98, 806 P2d 110 (1991)

Where prosecutor informed trial court that state had prepared "transport order" from state prison for potential witness and defendant offered no evidence witness would testify to lack of memory or claim privilege against self-incrimina­tion, defendant failed to show that witness was "unavailable" for purpose of introducing witness' state­ments under this sec­tion. State v. Thoma, 313 Or 268, 834 P2d 1020 (1992)

Deposi­tion testimony of witness unavailable to sub­poe­na is admissible under ORS 45.250 (Use of deposition) without showing that offering party sought voluntary return of witness per this sec­tion. Hansen v. Abrasive Engineering and Manufacturing, 317 Or 378, 856 P2d 625 (1993)

Refusal of witness to testify based on Fifth Amend­ment right against self-incrimina­tion did not mean that witness's prior out-of-court state­ments on same matter were state­ments against penal interest. State v. Jacob, 125 Or App 643, 866 P2d 507 (1994), Sup Ct review denied

Unavailability of witness must be es­tab­lished by means sanc­tioned by law for introduc­tion of judicial evidence. State v. Ordonez-Villanueva, 138 Or App 236, 908 P2d 333 (1995), Sup Ct review denied

In Determining That State­ment Against Penal Interest By Hearsay Declarant Had Sufficient Indicia of Reliability to Be Admissible, Factors Considered Were

1) whether declarant was pressured to make state­ment; 2) timing of state­ment; 3) to whom state­ment was addressed; 4) purpose of making state­ment; and 5) state­ment content. State v. Wilson, 323 Or 498, 918 P2d 826 (1996)

In determining whether state­ment by hearsay declarant is admissible as state­ment against penal interest, state­ment must be prima facie inculpatory and circumstantially reliable. State v. Jones, 171 Or App 375, 15 P3d 616 (2000), Sup Ct review denied

On de novo review, hearsay testimony to which no objec­tion was made at trial may be considered by reviewing court for any weight testimony may have. Petersen v. Crook County, 172 Or App 44, 17 P3d 563 (2001)

Circumstances indicating "trustworthiness" of state­ment against penal interest means both circumstances indicating state­ment was actually made and circumstances indicating truth of state­ment. State v. Lytsell, 187 Or App 169, 67 P3d 955 (2003)

Where witness testifies in court that contents of written state­ment by witness are truthful, testimony is sufficient to make contents of state­ment part of evidentiary record for purpose of appellate review. Lowrance v. Trow, 225 Or App 250, 200 P3d 637 (2009)

Exclusion of hearsay on basis that declarant is available as witness violates Due Process Clause of United States Constitu­tion where (1) hearsay constitutes reliable, ma­te­ri­ally exculpatory evidence, (2) profferer of hearsay es­tab­lishes that hearsay subjects declarant to crim­i­nal liability and (3) corroborating circumstances clearly indicate hearsay's trustworthiness. 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)

For testimony to be admissible, wrongful con­duct that is intended to cause declarant to be unavailable does not need to be for sole or primary purpose of causing witness to be unavailable. State v. Supanchick, 245 Or App 651, 263 P3d 378 (2011), aff'dState v. Supanchick, 354 Or 737, 323 P3d 231 (2014)

Confronta­tion Clause of federal Constitu­tion does not require wrongful con­duct that causes declarant to be unavailable as witness to be for sole or primary purpose of causing witness to be unavailable. State v. Supanchick, 245 Or App 651, 263 P3d 378 (2011), aff'd State v. Supanchick, 354 Or 737, 323 P3d 231 (2014)

Admissibility of testimony of declarant who is unavailable as witness because of wrongful con­duct causes declarant to be unavailable is firmly rooted and does not need particularized guarantee of trustworthiness. State v. Supanchick, 245 Or App 651, 263 P3d 378 (2011), aff'd State v. Supanchick, 354 Or 737, 323 P3d 231 (2014)

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)

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), 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 (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.