If you only remember one point about evidence law in Oregon, remember this: Oregon evidence practice is organized under the Oregon Evidence Code (ORS ch. 40). Relevance starts at ORS §§ 40.150, 40.170; hearsay starts at ORS §§ 40.460, 40.465. Procedure, examples, and the opinions below hang off Oregon Evidence Code (ORS ch. 40). Authenticity is a separate fight under ORS §§ 40.490, 40.495. Depositions at trial: ORS § 40.480(2)(a) and ORCP 39 and 43 govern civil deposition use at trial when witnesses are unavailable. Criminal discovery follows ORS ch. 135; deposition testimony at trial requires ORS ch. 40 hearsay exceptions with unavailability under ORS § 40.480(1).
Hearsay: start with the definition
Most hearsay objections in Oregon are won or lost on the definition, not on an exception. Under ORS §§ 40.460, 40.465, hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Non-hearsay purposes — verbal acts, effect on the listener, notice, circumstantial evidence of state of mind, and impeachment — remain available when the proponent can articulate them without asking the jury to believe the declarant.
Layered hearsay (hearsay within hearsay) requires an exception or exclusion for each layer. Machine-generated data and non-assertive conduct sit outside the hearsay definition in FRE-aligned jurisdictions, but they still need authenticity and, often, expert or business-records foundations.
Oregon hearsay opinions
STATE OF OREGON, Plaintiff-Respondent v. STEVEN PAUL BLAYLOCK
STATE OF OREGON, Plaintiff-Respondent v. STEVEN PAUL BLAYLOCK, 267 Or. App. 455 (2014)
…m’s out-of-court statements under various exceptions to the hearsay rule. In his fifth assignment of error, defendant challenges the trial court’s imposition of no-contact provisions in its judgment. As explained below, we reject the evidentiary arguments that defendant makes in conjunction with his first four assignments of error and, therefore, affirm defendant’s murder convi…
Practitioners open STATE OF OREGON, Plaintiff-Respondent v. STEVEN PAUL BLAYLOCK when Oregon hearsay turns on the distinction in this sentence: "In his fifth assignment of error, defendant challenges the trial court’s imposition of no-contact provisions in its judgment." Do not lift it out of the facts the court was deciding.
WRIGHT, Appellant, v. SWANN Et Al, Respondents
WRIGHT, Appellant, v. SWANN Et Al, Respondents, 261 Or. 440 (1972)
…urt has recognized an exception to the general rule against hearsay evidence in cases involving "spontaneous statements" or "excited utterances" and has held that this exception extends to statements made by bystanders, as well as by participants in the so-called "exciting event."[1] *150 The primary question to be decided in this case is whether the "spontaneous statement" or…
On hearsay, WRIGHT, Appellant, v. SWANN Et Al, Respondents speaks to the Oregon dispute in this passage: "urt has recognized an exception to the general rule against hearsay evidence in cases involving 'spontaneous statements' or 'excited utterances' and has held that this exception extends to statements made by bystanders, as well as by participants in the so-called 'exciting event." The surrounding opinion shows how the court applied that language to the record.
STATE OF OREGON, Respondent, v. JAMES E. WAITES, Appellant
STATE OF OREGON, Respondent, v. JAMES E. WAITES, Appellant, 7 Or. App. 137 (1971)
…ng the complaint made to her by the prosecuting witness was hearsay, and is therefore inadmissible unless coming within one of the recognized exceptions to the hearsay rule. State v. Emery, 4 Or App 527, 480 P2d 445 (1971). *140 One -well-established exception -would permit Mrs. Bryan to testify to all the details of the complaint made, if it -was reasonably contemporaneous wit…
On hearsay, STATE OF OREGON, Respondent, v. JAMES E. WAITES, Appellant speaks to the Oregon dispute in this passage: "State v. Emery, 4 Or App 527, 480 P2d 445 (1971). *140 One -well-established exception -would permit Mrs." The surrounding opinion shows how the court applied that language to the record.
STATE OF OREGON, Respondent, v. JOSEPH ALBERT O’BRIEN, Appellant — Thornton, J., dissenting
…rsal. First, at trial, and over objection on the grounds of hearsay, Russel Edmonds was permitted to testify to out-of-court statements allegedly made by Joe Lyda. These statements were to the effect that the paper bag allegedly sold to the defendant con39tained “ some twigs of stems and seeds from the last purchase of Ms marijuana ' The admission into evid…
On hearsay, STATE OF OREGON, Respondent, v. JOSEPH ALBERT O’BRIEN, Appellant — Thornton, J., dissenting speaks to the Oregon dispute in this passage: "First, at trial, and over objection on the grounds of hearsay, Russel Edmonds was permitted to testify to out-of-court statements allegedly made by Joe Lyda." The surrounding opinion shows how the court applied that language to the record.
STATE OF OREGON, Respondent, v. ANDREW PULVER, AKA Andrew Pulver, Jr., Appellant
…of their uniform product bar codes (UPCs), was inadmissible hearsay. Because we conclude that the evidence was not hearsay, we affirm. The facts can be recounted briefly. Defendant was apprehended by a police officer after stealing two pairs of athletic shoes from a Fred Meyer store. The police officer turned the shoes over to a Fred Meyer security guard. At trial, the state ca…
STATE OF OREGON, Respondent, v. ANDREW PULVER, AKA Andrew Pulver, Jr., Appellant is worth reading on Oregon hearsay because the court put the point in its own words: "UPCs), was inadmissible hearsay. Because we conclude that the evidence was not hearsay, we affirm. The facts can be recounted briefly. Defendant was apprehended by a police officer after stealing two pairs of athletic shoes from a Fred Meyer store." Use that passage as the starting point, then read the facts that precede it.
STATE OF OREGON, Respondent, v. CHARLES JUNIOR EMERY, Appellant
STATE OF OREGON, Respondent, v. CHARLES JUNIOR EMERY, Appellant, 4 Or. App. 527 (1971)
…but not to the specific details. I would object to that as hearsay. ” ① 530 The court overruled the objection and Mrs. Barnes testified that the victim said that her step-dad had been playing around with her. I said, ‘"What do you mean?’ She says, ‘He has been feeling me out.’ I said, ‘"What do you mean by that?’ She says, ‘Well, he took my bottoms off.’ She says, ‘H…
On hearsay, STATE OF OREGON, Respondent, v. CHARLES JUNIOR EMERY, Appellant speaks to the Oregon dispute in this passage: "I would object to that as hearsay. ” ① 530 The court overruled the objection and Mrs. Barnes testified that the victim said that her step-dad had been playing around with her. I said, ‘'What do you mean?" The surrounding opinion shows how the court applied that language to the record.
STATE OF OREGON, Plaintiff-Respondent, v. DAVID MICHAEL OLSEN, Defendant-Appellant
…t. He also contends that the trial court erred in admitting hearsay statements made by the five-year-old victim, T, because the state did not comply with the statutory prerequisites to admissibility of such statements. We conclude that admitting the fact of defendant’s prior conviction was not error, but that (as the state concedes) admitting the hearsay was and that, contrary…
On hearsay, STATE OF OREGON, Plaintiff-Respondent, v. DAVID MICHAEL OLSEN, Defendant-Appellant speaks to the Oregon dispute in this passage: "He also contends that the trial court erred in admitting hearsay statements made by the five-year-old victim, T, because the state did not comply with the statutory prerequisites to admissibility of such statements." The surrounding opinion shows how the court applied that language to the record.
Walking through Oregon facts
Use this walkthrough to see which Oregon authority does the work at each step.
A lawyer in Oregon wants to offer a medical record, a party email, and a statement the declarant made while believing death was imminent.
- Clear relevance and unfair prejudice under ORS §§ 40.150, 40.170.
- If the email is the opposing party's, test ORS § 40.475(1)(b) before the hearsay definition in ORS §§ 40.460, 40.465.
- For the medical record, lay the business-records foundation in ORS § 40.475(6) and the treatment purpose in ORS § 40.475(4).
- For the deathbed statement, meet ORS § 40.480(2)(b), then authenticate every exhibit under ORS §§ 40.490, 40.495.
Oregon keeps hearsay, character, and authenticity on different rules inside the Oregon Evidence Code (ORS ch. 40). Winning one does not win the others.
Party admissions
Statements of an opposing party are among the most important routes around the hearsay bar. Oregon treats them under ORS § 40.475(1)(b). Nothing about the statement need be against interest, contemporaneous, or based on personal knowledge — the theory is adversarial, not reliability-based. A party cannot complain that his own words are unreliable when offered against him.
Scope questions dominate practice: the party's own statement; adopted statements (including silence in circumstances where a reasonable person would deny); statements by authorized speakers; agent or employee statements on matters within the scope of the relationship; and, in criminal conspiracy cases, coconspirator statements during and in furtherance of the conspiracy. A defendant generally cannot introduce his own exculpatory out-of-court statement as a "party admission" against himself — the rule runs one way.
Oregon party-admission opinions
State v. Davis
State v. Davis, 372 Or. 618 (2024)
…er the notes were nevertheless admissible under OEC 404(4). Admission under OEC 404(4) is limited by OEC 403, which provides that otherwise admissible evi- dence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” Cite as 372 Or 618 (2024) 621 On remand, the trial court ruled that the notes were admissible under OEC 404(4) and…
Oregon opinions such as State v. Davis are cited where party admissions is disputed. The court stated: "OEC 404(4). Admission under OEC 404(4) is limited by OEC 403, which provides that otherwise admissible evi- dence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." That is the language to brief; the rest of the decision supplies the procedural posture.
Arrowood Indemnity Co. v. Fasching
Arrowood Indemnity Co. v. Fasching, 369 Or. 214 (2022)
…demonstrate a lack of trustworthiness” that weighed against admission of the documents because McGough had averred that the documents attached to the affidavit included a promissory note, but no promissory note was attached. 220 Arrowood Indemnity Co. v. Fasching reliability as those prepared directly by the business whose records are presented by its records custodian in court…
On party admissions, Arrowood Indemnity Co. v. Fasching speaks to the Oregon dispute in this passage: "McGough had averred that the documents attached to the affidavit included a promissory note, but no promissory note was attached. 220 Arrowood Indemnity Co. v." The surrounding opinion shows how the court applied that language to the record.
OXLEY Et Al. v. LINNTON PLYWOOD ASSOCIATION
OXLEY Et Al. v. LINNTON PLYWOOD ASSOCIATION, 205 Or. 78 (1955)
…ng its own statements, may be considered as evidence, being admissions against interest. The weight of the evidence is a matter exclusively for determination by the trial court. “Admissions” have been defined as statements by a party or someone identified with him in legal interest of the existence of a fact which is relevant to the cause of his adversary. The term embraces any…
On party admissions, OXLEY Et Al. v. LINNTON PLYWOOD ASSOCIATION speaks to the Oregon dispute in this passage: "The weight of the evidence is a matter exclusively for determination by the trial court. “Admissions” have been defined as statements by a party or someone identified with him in legal interest of the existence of a fact which is relevant to the cause of his adversary." The surrounding opinion shows how the court applied that language to the record.
MADRON Et Al v. THOMSON Et Al
MADRON Et Al v. THOMSON Et Al, 245 Or. 513 (1966)
…if the prior statements are those of a party. Out-of-court admissions *517of a party are admissible as probative testimony despite their hearsay quality. ORS 41.900(2); Bingham v. Lipman, 40 Or 363, 369, 67 P 98 (1901); Franklin v. Webber, 93 Or 151, 156, 182 P 819 (1919); other cases from other jurisdictions collected in McCormick, Evidence (1954), 74, n 4. Riley is a party a…
On party admissions, MADRON Et Al v. THOMSON Et Al speaks to the Oregon dispute in this passage: "Out-of-court admissions *517of a party are admissible as probative testimony despite their hearsay quality. ORS 41.900(2); Bingham v. Lipman, 40 Or 363, 369, 67 P 98 (1901); Franklin v." The surrounding opinion shows how the court applied that language to the record.
STATE OF OREGON, Plaintiff-Respondent v. SAMUEL RAY CAIN, aka Samuel R. Cain
…that standard of review in mind, the facts relating to the admission of Exhibit 1 are as follows. Exhibit 1 is a computer print-out of a chart prepared by the department that lists information about defendant’s claims for each week that he claimed unemployment benefits, including: (1) the earnings that defendant reported to the department, (2) defendant’s earnings as reported…
STATE OF OREGON, Plaintiff-Respondent v. SAMUEL RAY CAIN, aka Samuel R. Cain is worth reading on Oregon party admissions because the court put the point in its own words: "that standard of review in mind, the facts relating to the admission of Exhibit 1 are as follows. Exhibit 1 is a computer print-out of a chart prepared by the department that lists information about defendant’s claims for each week that he claimed unemployment benefits, including" Use that passage as the starting point, then read the facts that precede it.
Viola J. WASHINGTON, Respondent on Review, v. TASECA HOMES, INC., and Morris S. Bush, Defendants, Michael S. BUSH
…he trial court erred in excluding from evidence defendant’s admission at deposition that no carelessness of plaintiff caused the collision. On plaintiffs appeal, the Court of Appeals held that the exclusion of defendant’s statement exculpating plaintiff was reversible error. Washington v. Taseca Homes, Inc., 101 Or App 607, 792 P2d 453 (1990). We affirm the decision of the Cour…
Oregon opinions such as Viola J. WASHINGTON, Respondent on Review, v. TASECA HOMES, INC., and Morris S. Bush, Defendants, Michael S. BUSH are cited where party admissions is disputed. The court stated: "On plaintiffs appeal, the Court of Appeals held that the exclusion of defendant’s statement exculpating plaintiff was reversible error. Washington v. Taseca Homes, Inc., 101 Or App 607, 792 P2d 453 (1990)." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE OF OREGON, Plaintiff-Respondent v. MARTIN RIOS MARTINEZ
STATE OF OREGON, Plaintiff-Respondent v. MARTIN RIOS MARTINEZ, 275 Or. App. 451 (2015)
…defendant stored on his phone were admissible as “adoptive admissions” under OEC 801(4)(b)(B) (exempting from the hearsay rule a statement that is offered against a party and is “[a] statement of which the party has manifested the party’s adoption or belief in its truth”). The trial court noted defendant’s objection and announced that it would make evidentiary rulings on the t…
Oregon opinions such as STATE OF OREGON, Plaintiff-Respondent v. MARTIN RIOS MARTINEZ are cited where party admissions is disputed. The court stated: "OEC 801(4)(b)(B) (exempting from the hearsay rule a statement that is offered against a party and is “[a] statement of which the party has manifested the party’s adoption or belief in its truth”)." That is the language to brief; the rest of the decision supplies the procedural posture.
Business records
The business-records exception under ORS § 40.475(6) is the everyday path for medical charts, employment files, bank statements, and maintenance logs. The foundation requires a record made at or near the time by — or from information transmitted by — someone with knowledge; kept in the course of a regularly conducted activity; and made as a regular practice. A custodian or other qualified witness (or a qualifying certification where the jurisdiction allows it) lays the foundation. The opponent may still attack lack of trustworthiness when the source or method of preparation indicates unreliability — litigation-driven reports are the classic failure mode.
Do not confuse authenticity with the business-records exception. You still need to show the exhibit is what you claim it is; the hearsay exception then answers why the out-of-court assertions inside it may be considered for their truth.
Oregon business-records opinions
BROWN, Respondent on Review, v. J. C. PENNEY COMPANY, INC. Et Al, Defendants, SHIELDS Et Al, Petitioners on Review
…the printout as an exception to the hearsay rule under the business records exception in former ORS 41.690, 7 which provided: *702 “A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business…
BROWN, Respondent on Review, v. J. C. PENNEY COMPANY, INC. Et Al, Defendants, SHIELDS Et Al, Petitioners on Review is worth reading on Oregon business records because the court put the point in its own words: "the printout as an exception to the hearsay rule under the business records exception in former ORS 41.690, 7 which provided: *702 “A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to" Use that passage as the starting point, then read the facts that precede it.
Arrowood Indemnity Co. v. Fasching
Arrowood Indemnity Co. v. Fasching, 369 Or. 214 (2022)
…the documents were admissible under OEC 803(6), the Oregon “business records” exception to the hearsay rule, and granted plaintiff’s motion for sum- mary judgment. The Court of Appeals affirmed. Held: In order for a record to be eligible for Oregon’s “business records” exception, OEC 803(6), the proponent of the record must present evidence regarding the record-making practices…
On business records, Arrowood Indemnity Co. v. Fasching speaks to the Oregon dispute in this passage: "OEC 803(6), the Oregon “business records” exception to the hearsay rule, and granted plaintiff’s motion for sum- mary judgment. The Court of Appeals affirmed." The surrounding opinion shows how the court applied that language to the record.
STATE of Oregon, on Review v. Kelly Lee EDMONDS, on Review.
STATE of Oregon, on Review v. Kelly Lee EDMONDS, on Review., 364 Or. 410 (2019)
…nquestionably hearsay evidence, can be introduced under the business records exception, OEC 803(6). That question is complicated by the existence of the official records exception, OEC 803(8)(b), an overlapping hearsay exception that specifically excludes from its scope "matters observed by police officers and other law enforcement personnel" in criminal cases. We hold that the…
STATE of Oregon, on Review v. Kelly Lee EDMONDS, on Review. is worth reading on Oregon business records because the court put the point in its own words: "OEC 803(6). That question is complicated by the existence of the official records exception, OEC 803(8)(b), an overlapping hearsay exception that specifically excludes from its scope 'matters observed by police officers and other law enforcement personnel' in criminal cases." Use that passage as the starting point, then read the facts that precede it.
STATE OF OREGON, Plaintiff-Respondent v. SAMUEL RAY CAIN, aka Samuel R. Cain
…that the exhibit was admissible as a summary of underlying business records under OEC 1006, as well as a business record under OEC 803(6). *631On appeal, defendant renews his hearsay objection, contending that although part of Exhibit 1 was admissible as a business record of the department under OEC 803(6), in accordance with Younger’s foundational testimony, the critical part…
Oregon opinions such as STATE OF OREGON, Plaintiff-Respondent v. SAMUEL RAY CAIN, aka Samuel R. Cain are cited where business records is disputed. The court stated: "OEC 1006, as well as a business record under OEC 803(6)." That is the language to brief; the rest of the decision supplies the procedural posture.
U.S. BANK NATIONAL ASSOCIATION, as Trustee FOR the STRUCTURED ASSET INVESTMENT LOAN TRUST, 2005-10, its successors
…er] personal knowledge of the facts and [her] review of the business records herein." Brown attested that she was familiar with Wells Fargo's business records relating to the servicing of defendant's mortgage and that "[t]he copies of the Records attached to this Declaration are copies of the Records described. These Records are maintained in the ordinary course of business by…
Practitioners open U.S. BANK NATIONAL ASSOCIATION, as Trustee FOR the STRUCTURED ASSET INVESTMENT LOAN TRUST, 2005-10, its successors when Oregon business records turns on the distinction in this sentence: "Brown attested that she was familiar with Wells Fargo's business records relating to the servicing of defendant's mortgage and that '[t]he copies of the Records attached to this Declaration are copies of the Records described." Do not lift it out of the facts the court was deciding.
In the Matter of the Refusal to Submit to a Breath Test By: LEPIRE, Respondent, v. MOTOR VEHICLES DIVISION, Appellant
…under ORS 41.680 to 41.710, Oregon’s version of the Uniform Business Records as Evidence Act, to prove (a) that at the time petitioner was requested to submit to a breath test, the officer had reasonable grounds to believe that petitioner had been driving under the influence of intoxicants, ORS 487.805(3)(b), and (b) that petitioner was fully advised of his rights under the Imp…
In the Matter of the Refusal to Submit to a Breath Test By: LEPIRE, Respondent, v. MOTOR VEHICLES DIVISION, Appellant is worth reading on Oregon business records because the court put the point in its own words: "Oregon’s version of the Uniform Business Records as Evidence Act, to prove (a) that at the time petitioner was requested to submit to a breath test, the officer had reasonable grounds to believe that petitioner had been driving under the influence of intoxicants, ORS 487." Use that passage as the starting point, then read the facts that precede it.
Jerry MORGAN and Debbie Morgan, Plaintiffs-Respondents v. VALLEY PROPERTY AND CASUALTY INSURANCE COMPANY
…ling. We agree that the spreadsheet was not admissible as a business record because its information about dollar values originated from outside sources who were not under a duty to report such information to the adjusters. See State v. Cain , 260 Or.App. 626, 632-34, 320 P.3d 600 (2014) (discussing duty to report requirement). We reverse and remand. We review the trial court's…
On business records, Jerry MORGAN and Debbie Morgan, Plaintiffs-Respondents v. VALLEY PROPERTY AND CASUALTY INSURANCE COMPANY speaks to the Oregon dispute in this passage: "We agree that the spreadsheet was not admissible as a business record because its information about dollar values originated from outside sources who were not under a duty to report such information to the adjusters. See State v. Cain , 260 Or.App. 626, 632-34, 320 P." The surrounding opinion shows how the court applied that language to the record.
STATE OF OREGON, Plaintiff-Respondent v. KELLY LEE EDMONDS
STATE OF OREGON, Plaintiff-Respondent v. KELLY LEE EDMONDS, 285 Or. App. 855 (2017)
…e transcript was admissible under the hearsay exception for business records, OEC 803(6). As we will explain, we accept the state’s concession, and we conclude that we should exercise our discretion to affirm on the alternative basis proffered by the state. We therefore affirm. We begin by relating the facts and procedural events pertinent to defendant’s claim of error. Defenda…
Oregon opinions such as STATE OF OREGON, Plaintiff-Respondent v. KELLY LEE EDMONDS are cited where business records is disputed. The court stated: "OEC 803(6). As we will explain, we accept the state’s concession, and we conclude that we should exercise our discretion to affirm on the alternative basis proffered by the state. We therefore affirm." That is the language to brief; the rest of the decision supplies the procedural posture.
Important hearsay exceptions that do not require unavailability
Three present-sense and mental-state exceptions carry most of the remaining traffic in Oregon trial practice.
Excited utterance — ORS § 40.475(2). A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. Timing is elastic; composure defeats the exception even minutes after the event, while visible distress can preserve it for hours.
Present sense impression — ORS § 40.475(1). A statement describing or explaining an event or condition made while or immediately after the declarant perceived it. Contemporaneity is strict — seconds and minutes, not hours — and excitement is not required.
Then-existing mental, emotional, or physical condition — ORS § 40.475(3). Statements of then-existing state of mind (including intent and plan) come in; statements of memory or belief offered to prove the fact remembered generally do not. Intent-to-meet-another-person cases remain the hardest applications.
Declarant unavailable
When the declarant is unavailable under ORS § 40.480(1), Oregon opens a second suite of exceptions. Unavailability typically includes privilege, refusal to testify despite court order, lack of memory, death or then-existing infirmity, and absence despite reasonable efforts to procure attendance. The proponent bears the burden of proving unavailability with specific facts — a bare assertion that the witness "could not be found" is not enough.
Former testimony under ORS § 40.480(2)(a) is the workhorse once unavailability is shown: testimony given as a witness at a trial, hearing, or lawful deposition, offered against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect. Criminal confrontation analysis runs in parallel and is not satisfied merely because a hearsay exception applies.
Dying declarations
Dying declarations under ORS § 40.480(2)(b) remain a narrow but decisive exception in homicide and, in many jurisdictions, civil cases involving the cause or circumstances of what the declarant believed to be impending death. The foundational showing is the declarant's belief that death was imminent — not that death in fact followed within any particular time — plus a statement concerning the cause or circumstances of what the declarant believed to be the impending death. Courts police coaching and narrative expansions aggressively.
Oregon dying-declaration opinions
STATE v. FOOT YOU
STATE v. FOOT YOU, 24 Or. 61 (1893)
…or rehearing has been filed in which it is claimed that the dying declarations of the deceased were inadmissible in evidence because, as argued, they contain merely his opinion as to who did the shooting. The rule is well settled that dying declarations must relate to such facts only as the deceased would have been competent to testify to if sworn as a witness in the case, and…
Practitioners open STATE v. FOOT YOU when Oregon dying declaration turns on the distinction in this sentence: "or rehearing has been filed in which it is claimed that the dying declarations of the deceased were inadmissible in evidence because, as argued, they contain merely his opinion as to who did the shooting. The rule is well settled that dying declarations must relate to such facts" Do not lift it out of the facts the court was deciding.
State of Oregon v. Garver
State of Oregon v. Garver, 190 Or. 291 (1950)
…ing the cause of his death. The statement was received as a dying declaration. According to the evidence the declaration of Abbott was made in the Good Samaritan Hospital while he lay *310 on the operating table some-two hours before he died. Beeh testified: “Mr. Abbott was laying there moaning and groaning with pain and made a statement that, ‘I am dying, I am dying; why don’t…
Practitioners open State of Oregon v. Garver when Oregon dying declaration turns on the distinction in this sentence: "The statement was received as a dying declaration. According to the evidence the declaration of Abbott was made in the Good Samaritan Hospital while he lay *310 on the operating table some-two hours before he died. Beeh testified: “Mr." Do not lift it out of the facts the court was deciding.
STATE OF OREGON v. AH LEE
STATE OF OREGON v. AH LEE, 8 Or. 214 (1880)
…xt objection urged is that the court erred in admitting the dying declarations of the deceased to go as evidence to the jury against the accused, and in support of this objection it is urged that as the deceased was shown to be a Chinaman, it must be presumed that he was a worshiper of Joss, and had the heathenish religion of his race, and that there was no evidence that he had…
Oregon opinions such as STATE OF OREGON v. AH LEE are cited where dying declaration is disputed. The court stated: "xt objection urged is that the court erred in admitting the dying declarations of the deceased to go as evidence to the jury against the accused, and in support of this objection it is urged that as the deceased was shown to be a Chinaman, it must be presumed that he was a worshi" That is the language to brief; the rest of the decision supplies the procedural posture.
STATE OF OREGON v. THOMAS GARRAND
STATE OF OREGON v. THOMAS GARRAND, 5 Or. 216 (1874)
…aid for the admission of the statements of the deceased, as dying declarations. Second, that the declarations themselves are not competent. Upon the first point in this objection I w.ould remark that it is certainly correct that, the declaration must be made under a consciousness of impending death. Mr. Wharton, in his excellent work on criminal law, gives several instances of…
STATE OF OREGON v. THOMAS GARRAND is worth reading on Oregon dying declaration because the court put the point in its own words: "Second, that the declarations themselves are not competent. Upon the first point in this objection I w.ould remark that it is certainly correct that, the declaration must be made under a consciousness of impending death. Mr." Use that passage as the starting point, then read the facts that precede it.
STATE v. JU NUN
STATE v. JU NUN, 53 Or. 1 (1908)
…ed that the court erred in the admission in evidence of the dying declarations of the deceased. He was shot through the lungs about 11 o’clock at night, and died the next afternoon. In the morning, after his removal to the hospital, he made a statement as to the cause and manner of his death; and it is the admission of this statement of which the defendant complains, on the gro…
On dying declaration, STATE v. JU NUN speaks to the Oregon dispute in this passage: "He was shot through the lungs about 11 o’clock at night, and died the next afternoon." The surrounding opinion shows how the court applied that language to the record.
Oliver P. Goodall v. State of Oregon
Oliver P. Goodall v. State of Oregon, 1 Or. 333 (1861)
Boise, J. The dying declaration of the deceased being admitted in evidence, the counsel for the prisoner offered to prove that the deceased was a disbeliever in a future state of rewards and punishments, for the purpose of discrediting his dying declarations. And I am of opinion that such evidence should have been admitted; for this…
Oliver P. Goodall v. State of Oregon is worth reading on Oregon dying declaration because the court put the point in its own words: "Boise, J. The dying declaration of the deceased being admitted in evidence, the counsel for the prisoner offered to prove that the deceased was a disbeliever in a future state of rewards and punishments, for the purpose of discrediting his dying declarations." Use that passage as the starting point, then read the facts that precede it.
STATE OF OREGON, Respondent, v. STEVEN ARTHUR CONWAY, Appellant
STATE OF OREGON, Respondent, v. STEVEN ARTHUR CONWAY, Appellant, 70 Or. App. 721 (1984)
…(1972), where the court upheld the constitutionality of the dying declaration exception: “[The Oregon Confrontation Right] does not apply to such documentary evidence to establish collateral facts, as would be admissible under the rules of the common law in other cases.” 14 Or at 305. Under that standard, there is no question but that the public records exception satisfies the…
On dying declaration, STATE OF OREGON, Respondent, v. STEVEN ARTHUR CONWAY, Appellant speaks to the Oregon dispute in this passage: "The Oregon Confrontation Right] does not apply to such documentary evidence to establish collateral facts, as would be admissible under the rules of the common law in other cases.” 14 Or at 305." The surrounding opinion shows how the court applied that language to the record.
STATE v. YEE GUENG
STATE v. YEE GUENG, 57 Or. 509 (1910)
…and, this objection would not have been tenable, and, since dying declarations are admitted only on account of the exigencies of the occasion, so often discussed and so well understood, no reason exists in such a case for relying on any certain belief with reference to a future life, its rewards or punishments, any more than could be urged against a witness testifying in the pr…
Oregon opinions such as STATE v. YEE GUENG are cited where dying declaration is disputed. The court stated: "and, this objection would not have been tenable, and, since dying declarations are admitted only on account of the exigencies of the occasion, so often discussed and so well understood, no reason exists in such a case for relying on any certain belief with reference to a future l" That is the language to brief; the rest of the decision supplies the procedural posture.
Medical diagnosis or treatment statements
Statements made for medical diagnosis or treatment under ORS § 40.475(4) cover medical history, past or present symptoms, and their general cause when reasonably pertinent to diagnosis or treatment. The exception is not limited to treating physicians; statements to nurses, EMTs, and consulting clinicians can qualify when the diagnostic purpose is genuine. Fault and identity remain the usual battleground: "I was hit by a car" is often pertinent; "the light was green" usually is not; abuser identity in child-abuse and domestic-violence cases is heavily litigated.
Oregon medical-statement opinions
STATE OF OREGON, Respondent on Review/Petitioner on Review, v. CRAIG MICHAEL BARKLEY, Petitioner on
…exclusion for out-of-court statements made for purposes of medical diagnosis or treatment. 3 In his first assignment of error on appeal, defendant argued that the trial court erred in admitting any part of *424 the videotape, because the child did not make any statements for the purposes contemplated by OEC 803(4), because all her statements exceeded the proper subject matter…
Oregon opinions such as STATE OF OREGON, Respondent on Review/Petitioner on Review, v. CRAIG MICHAEL BARKLEY, Petitioner on are cited where medical diagnosis hearsay is disputed. The court stated: "exclusion for out-of-court statements made for purposes of medical diagnosis or treatment. 3 In his first assignment of error on appeal, defendant argued that the trial court erred in admitting any part of *424 the videotape, because the child did not make any statements for the" That is the language to brief; the rest of the decision supplies the procedural posture.
STATE OF OREGON, Respondent, v. CARL DUANE WILSON, Appellant
STATE OF OREGON, Respondent, v. CARL DUANE WILSON, Appellant, 121 Or. App. 460 (1993)
…ual abuse.2 She testified to the following: “Q [I]s there a medical diagnosis, a recognized medical diagnosis called sexual abuse? “A Yes, there is. “Q All right. Tell us a little bit about that, please. “A Well, it’s a diagnosis like any other diagnosis, like heart attack or a gall bladder problem or low back pain. If the diagnosis — usually the general diagnosis is child abus…
Oregon opinions such as STATE OF OREGON, Respondent, v. CARL DUANE WILSON, Appellant are cited where medical diagnosis hearsay is disputed. The court stated: "She testified to the following: “Q [I]s there a medical diagnosis, a recognized medical diagnosis called sexual abuse?" That is the language to brief; the rest of the decision supplies the procedural posture.
STATE OF OREGON, Respondent on Review, v. JOHANNES JENSEN, Petitioner on Review
STATE OF OREGON, Respondent on Review, v. JOHANNES JENSEN, Petitioner on Review, 313 Or. 587 (1992)
…dence under OEC 803(4) (statements made for the purposes of medical diagnosis or treatment). 3 The trial court ruled that, although the testimony was hearsay, it nonetheless was admissible under OEC 803(4). The jury thereafter found defendant guilty of first-degree assault and first-degree criminal mistreatment. On appeal, defendant assigned error to the trial court’s admission…
STATE OF OREGON, Respondent on Review, v. JOHANNES JENSEN, Petitioner on Review is worth reading on Oregon medical diagnosis hearsay because the court put the point in its own words: "OEC 803(4) (statements made for the purposes of medical diagnosis or treatment). 3 The trial court ruled that, although the testimony was hearsay, it nonetheless was admissible under OEC 803(4)." Use that passage as the starting point, then read the facts that precede it.
STATE OF OREGON, Respondent, v. WILLIAM RANDAL LOGAN, Appellant
STATE OF OREGON, Respondent, v. WILLIAM RANDAL LOGAN, Appellant, 105 Or. App. 556 (1991)
…assistant. She characterized “sexual abuse” as a legitimate medical diagnosis. The identity of the abuser is important to her in deciding a proper course of treatment. In this case, she diagnosed chronic sexual abuse and recommended that the child receive individual therapy from a therapist trained in sexual abuse and that she be protected from defendant. First, defendant conte…
STATE OF OREGON, Respondent, v. WILLIAM RANDAL LOGAN, Appellant is worth reading on Oregon medical diagnosis hearsay because the court put the point in its own words: "She characterized “sexual abuse” as a legitimate medical diagnosis. The identity of the abuser is important to her in deciding a proper course of treatment." Use that passage as the starting point, then read the facts that precede it.
STATE OF OREGON, Respondent, v. EUGENE IRVING BOOTH, Appellant
STATE OF OREGON, Respondent, v. EUGENE IRVING BOOTH, Appellant, 124 Or. App. 282 (1993)
…exception for out-of-court statements made for purposes of medical diagnosis or treatment. The rule provides in pertinent part: “The following are not excluded by [OEC 802, the general rule against the admission of hearsay], even though the declarant is available as a witness: “ (4) Statements made for purposes of medical diagnosis or treatment and describing medical history,…
Oregon opinions such as STATE OF OREGON, Respondent, v. EUGENE IRVING BOOTH, Appellant are cited where medical diagnosis hearsay is disputed. The court stated: "exception for out-of-court statements made for purposes of medical diagnosis or treatment. The rule provides in pertinent part: “The following are not excluded by [OEC 802, the general rule against the admission of hearsay], even though the declarant is available as a witness: “" That is the language to brief; the rest of the decision supplies the procedural posture.
Use of depositions at trial
ORS § 40.480(2)(a) and ORCP 39 and 43 govern civil deposition use at trial when witnesses are unavailable. Criminal discovery follows ORS ch. 135; deposition testimony at trial requires ORS ch. 40 hearsay exceptions with unavailability under ORS § 40.480(1).
Deposition use is always a two-layer problem: procedural permission to read or play the deposition, plus a hearsay path (often former testimony, party admission, or impeachment). Counsel who satisfy the civil or criminal procedure rule but skip the evidence-rule foundation invite a sustained objection; counsel who have a hearsay exception but failed to preserve the deposition under the procedural rule face the same result. Video designations, counter-designations, and completeness objections should be teed up before the jury is seated.
Oregon deposition / former-testimony opinions
STATE OF OREGON Ex Rel. GLADDEN v. LONERGAN Et Al.
STATE OF OREGON Ex Rel. GLADDEN v. LONERGAN Et Al., 201 Or. 163 (1954)
…part of the civil code of this state. It provides: “44.230 Deposition or production of prisoners. (1) If the witness is a prisoner confined in a prison within this state, an order for his examination in the prison upon deposition, or for his temporary removal and production before a court or officer for the purpose of being orally examined, may be made as follows: “ (a) By the…
STATE OF OREGON Ex Rel. GLADDEN v. LONERGAN Et Al. is worth reading on Oregon deposition / former testimony because the court put the point in its own words: "It provides: “44.230 Deposition or production of prisoners." Use that passage as the starting point, then read the facts that precede it.
In the Matter of the Application for Admission to the Oregon State Bar of DAVID SYLVAN FINE, Petitioner
…licant’s testimony before the Board of Bar Examiners and on deposition was that he entered the conspiracy to bomb the Math Center and participate in the act itself without any reflection and that his decision resulted from his immaturity at age 18. On deposition taken June 4,1985, in these bar proceedings, applicant testified that he was very concerned that the risk of injury t…
Practitioners open In the Matter of the Application for Admission to the Oregon State Bar of DAVID SYLVAN FINE, Petitioner when Oregon deposition / former testimony turns on the distinction in this sentence: "Board of Bar Examiners and on deposition was that he entered the conspiracy to bomb the Math Center and participate in the act itself without any reflection and that his decision resulted from his immaturity at age 18." Do not lift it out of the facts the court was deciding.
Guy L. Wallace v. American Toll Bridge Co.
Guy L. Wallace v. American Toll Bridge Co., 124 Or. 179 (1928)
…urt erred in admitting over the objections of defendant the depositions of four witnesses. The other alleges error in the instructions given to the jury. The evidence showed that one E. Y. Yachon, plaintiff’s assignor, made several sales of shares of the capital stock of defendant; in all these sales the entire, or a very substantial portion, of the purchase price was discharge…
Oregon opinions such as Guy L. Wallace v. American Toll Bridge Co. are cited where deposition / former testimony is disputed. The court stated: "The other alleges error in the instructions given to the jury. The evidence showed that one E. Y." That is the language to brief; the rest of the decision supplies the procedural posture.
ELLIS v. ABBOTT
ELLIS v. ABBOTT, 69 Or. 234 (1914)
…e time, place, form and manner of taking the testimony, the depositions of A. S. Ellis and L. B. Snyder were received in evidence, over objection and exception that such written, sworn declarations were incompetent, irrelevant, immaterial and improper. It is contended by defendants’ counsel that an error was committed in receiving such evidence, in the absence of testimony tend…
Oregon opinions such as ELLIS v. ABBOTT are cited where deposition / former testimony is disputed. The court stated: "A. S. Ellis and L. B. Snyder were received in evidence, over objection and exception that such written, sworn declarations were incompetent, irrelevant, immaterial and improper." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE OF OREGON, Respondent, v. BOBBY G. MONTGOMERY, Appellant
STATE OF OREGON, Respondent, v. BOBBY G. MONTGOMERY, Appellant, 88 Or. App. 163 (1987)
…nother hearing of the same or 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 * had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination.” A declarant is “unavailable” under that rule if she “[i]s absent…
Practitioners open STATE OF OREGON, Respondent, v. BOBBY G. MONTGOMERY, Appellant when Oregon deposition / former testimony turns on the distinction in this sentence: "nother hearing of the same or 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 * had an opportunity and similar motive to develop the testimony by dire" Do not lift it out of the facts the court was deciding.
STATE OF OREGON, Plaintiff-Respondent, v. RAYMOND JAY MONK, Defendant-Appellant
…ional substitutes for live testimony, including affidavits, depositions, and documentary evidence.” Id. at 782 n 5. However, in such proceedings, a defendant does have a right under the Due Process Clause “to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” Morrissey, 408 US at 489. In Johns…
STATE OF OREGON, Plaintiff-Respondent, v. RAYMOND JAY MONK, Defendant-Appellant is worth reading on Oregon deposition / former testimony because the court put the point in its own words: "Id. at 782 n 5. However, in such proceedings, a defendant does have a right under the Due Process Clause “to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” Morrissey, 408 US at 489." Use that passage as the starting point, then read the facts that precede it.
STATE OF OREGON, Plaintiff-Respondent v. MARISA ANN HARRIS
STATE OF OREGON, Plaintiff-Respondent v. MARISA ANN HARRIS, 260 Or. App. 154 (2013)
…ional substitutes for live testimony, including affidavits, depositions, and documentary evidence.” Id. at 400-01 (citations and internal quotation marks omitted). In this context, due process is a “flexible concept and confrontation may give way where other evidence provides an adequate alternative * ” Wibbens, 238 Or App at 741. Accordingly, this court has adopted a balan…
STATE OF OREGON, Plaintiff-Respondent v. MARISA ANN HARRIS is worth reading on Oregon deposition / former testimony because the court put the point in its own words: "Id. at 400-01 (citations and internal quotation marks omitted). In this context, due process is a “flexible concept and confrontation may give way where other evidence provides an adequate alternative * ” Wibbens, 238 Or App at 741." Use that passage as the starting point, then read the facts that precede it.
Authenticity: why it matters and how to prove it
Authenticity is not a hearsay doctrine and it is not optional. Under ORS §§ 40.490, 40.495, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Self-authenticating categories — certified public records, newspapers, acknowledged documents, trade inscriptions, and (where adopted) certified domestic records of a regularly conducted activity — shorten the path, but most trial exhibits still need a sponsoring witness, distinctive characteristics, chain of custody, or process-or-system evidence.
Oregon environmental, timber, and tech-industry trials require authenticated agency records, chain-of-custody proof for seized devices, and metadata foundations under ORS § 40.490.
Why authenticity gets its own section in every Oregon trial notebook:
- It is a condition precedent. An unauthenticated exhibit never reaches the relevance, hearsay, or privilege analysis in a useful way — the jury never properly considers it.
- Digital evidence multiplies the failure modes. Screenshots, social-media posts, text threads, and cloud downloads require hash values, account attribution, metadata, or a percipient witness who saw the content created or received.
- Chain of custody is authenticity by another name. Drugs, firearms, biological samples, and seized devices are excluded when the links from seizure to lab to courtroom are broken, even if a hearsay exception would otherwise apply to a lab report.
- Business-records shortcuts do not replace authentication. A custodian can explain record-keeping practices and still fail if nobody can say the particular PDF or printout is the record of this patient, this account, or this machine.
- Self-authentication is narrow. Counsel who wave a notarization or a letterhead and skip the rest of Rule 901-style analysis often lose when the document's contents are disputed.
Practical authentication checklist for Oregon trials: identify the exhibit; choose a 901 method or a 902 category; line up the sponsoring witness or certificate; preserve chain-of-custody testimony for physical and digital items; and separate the authenticity objection from any hearsay objection so the court rules on each.
Oregon authenticity opinions
State v. Sassarini
State v. Sassarini, 300 Or. App. 106 (2019)
…ng that the state met the threshold to send the question of authentication to the jury. The state presented sufficient evidence about the circumstances of the recordings that a factfinder could believe that they were accurate and reliable depictions of the incident and had not been edited by the neighbor who took them; defendant’s expert’s testimony, although raising certain ir…
On authentication, State v. Sassarini speaks to the Oregon dispute in this passage: "ng that the state met the threshold to send the question of authentication to the jury. The state presented sufficient evidence about the circumstances of the recordings that a factfinder could believe that they were accurate and reliable depictions of the incident and had not be" The surrounding opinion shows how the court applied that language to the record.
STATE OF OREGON, Plaintiff-Respondent v. CHARLES EDWARD DURANDO, III
STATE OF OREGON, Plaintiff-Respondent v. CHARLES EDWARD DURANDO, III, 262 Or. App. 299 (2014)
…was based on a contention that defendant had not adequately authenticated the document as required by OEC 901. Specifically, *308the state argued that defendant had not authenticated the document as a “public record, report, statement, or data compilation” because he had offered no evidence that the document was “from the public office where items of this nature are kept.” OEC…
On authentication, STATE OF OREGON, Plaintiff-Respondent v. CHARLES EDWARD DURANDO, III speaks to the Oregon dispute in this passage: "OEC 901. Specifically, *308the state argued that defendant had not authenticated the document as a “public record, report, statement, or data compilation” because he had offered no evidence that the document was “from the public office where items of this nature are kept." The surrounding opinion shows how the court applied that language to the record.
STATE OF OREGON, Plaintiff-Respondent v. CHARLES EDWARD DURANDO, III
STATE OF OREGON, Plaintiff-Respondent v. CHARLES EDWARD DURANDO, III, 264 Or. App. 289 (2014)
…’s exhibits on the ground that defendant had not adequately authenticated it. As noted in our original opinion, defendant argued on appeal that he had sufficiently authenticated that exhibit, which purported to be a printout from a website, “by ‘inviting the trial court to view the website and verify that the printout accurately represented the information contained therein.’”…
Practitioners open STATE OF OREGON, Plaintiff-Respondent v. CHARLES EDWARD DURANDO, III when Oregon authentication turns on the distinction in this sentence: "’s exhibits on the ground that defendant had not adequately authenticated it. As noted in our original opinion, defendant argued on appeal that he had sufficiently authenticated that exhibit, which purported to be a printout from a website, “by ‘inviting the trial court to view t" Do not lift it out of the facts the court was deciding.
Mary D. HASKINS, Petitioner, v. EMPLOYMENT DEPARTMENT and Cy’s Super Market, Respondents — Wollheim, J., dissenting
…ol executed or adopted by a party with present intention to authenticate a writing.” In ORS 71.2020(39), the term “signed” stands for the identical proposition. The courts have held that a printed name sufficed as a signature in Toon v. Wapinitia Irrigation Co., 117 Or 374, 383, 243 P 554 (1926), and that a photocopied signature was enough to certify an exhibit in State v. Barc…
On authentication, Mary D. HASKINS, Petitioner, v. EMPLOYMENT DEPARTMENT and Cy’s Super Market, Respondents — Wollheim, J., dissenting speaks to the Oregon dispute in this passage: "In ORS 71.2020(39), the term “signed” stands for the identical proposition. The courts have held that a printed name sufficed as a signature in Toon v. Wapinitia Irrigation Co." The surrounding opinion shows how the court applied that language to the record.
State v. H. D. E.
State v. H. D. E., 304 Or. App. 375 (2020)
…orted her to be. Defendant argues the state was required to authenticate the evidence under OEC 901(2)(i) because it resulted from a techni- cal process or system. The state responds that Garcia’s testimony provided the necessary foundation. Held: The trial court did not err. OEC 901 does not require particular methods of authentication. Garcia’s testimony provided prima facie…
On authentication, State v. H. D. E. speaks to the Oregon dispute in this passage: "Defendant argues the state was required to authenticate the evidence under OEC 901(2)(i) because it resulted from a techni- cal process or system. The state responds that Garcia’s testimony provided the necessary foundation. Held: The trial court did not err." The surrounding opinion shows how the court applied that language to the record.
State v. Biggs
State v. Biggs, 331 Or. App. 314 (2024)
…he events underlying defen- dant’s conviction were properly authenticated by a witness who, although he had not taken the videos, testified that the videos accurately described the events that he was present for and observed. In his second assignment of error, he argues that the trial court abused its discretion in not excluding a photograph that, in defendant’s view, was not d…
Oregon opinions such as State v. Biggs are cited where authentication is disputed. The court stated: "he events underlying defen- dant’s conviction were properly authenticated by a witness who, although he had not taken the videos, testified that the videos accurately described the events that he was present for and observed. In his second assignment of error, he argues that the" That is the language to brief; the rest of the decision supplies the procedural posture.
State v. Blue
State v. Blue, 374 Or. 439 (2025)
…7 (2024). We allowed review and now reverse. Under OEC 901, authentication requires “evidence sufficient to support a finding that the matter in question is what its proponent claims.” As we will explain, we conclude that a party who opposes the admission of a duplicate under OEC 1003(1) raises a “genuine question” as to the authenticity of the original when there is evidence s…
Practitioners open State v. Blue when Oregon authentication turns on the distinction in this sentence: "We allowed review and now reverse. Under OEC 901, authentication requires “evidence sufficient to support a finding that the matter in question is what its proponent claims." Do not lift it out of the facts the court was deciding.
Practice checklist
- State the relevance theory in one sentence before naming an exception.
- Run the 403 / unfair-prejudice balance explicitly for other-acts and graphic exhibits.
- For character or other-acts evidence, identify the non-propensity purpose and request a limiting instruction on the record.
- Decide whether an out-of-court statement is hearsay for the purpose offered before hunting exceptions.
- Lay business-records foundations with time, knowledge, regular practice, and custodial qualifications — or a qualifying certification.
- Prove unavailability with specific facts before offering former testimony or dying declarations.
- Treat deposition use as procedure-plus-hearsay; designate and counter-designate early.
- Authenticate every exhibit under ORS §§ 40.490, 40.495 (or the self-authentication path) before arguing hearsay.
- Preserve chain of custody for physical and digital evidence with named custodians.
- Search LawDiver for recent Oregon appellate evidence opinions before mediation or motions in limine.
Contents
- General standards of admissibility
- Character evidence
- Hearsay: start with the definition
- Party admissions
- Business records
- Important hearsay exceptions that do not require unavailability
- Declarant unavailable
- Dying declarations
- Medical diagnosis or treatment statements
- Use of depositions at trial
- Authenticity: why it matters and how to prove it
- Practice checklist
- Frequently asked questions
General standards of admissibility
Oregon starts every evidence dispute with relevance and unfair prejudice. Under ORS §§ 40.150, 40.170, evidence is relevant when it has any tendency to make a fact of consequence more or less probable, and relevant evidence is still excluded when its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. Preliminary questions of admissibility are for the court; conditional relevance and limited-purpose instructions keep otherwise-usable proof from becoming a Trojan horse for propensity or truth-of-the-matter use.
Oregon uses ORS 40.xxx decimals rather than "Rule 401" labels in the statute text. ORS § 40.475 consolidates many FRE 803 exceptions in one section.
Practice tip: articulate the theory of relevance in one sentence before citing the exception. Lawyers who lead with "it's a business record" without explaining what fact the record proves often lose the 403 balance even when the hearsay foundation is clean.
Character evidence
Character evidence in Oregon is governed by ORS §§ 40.210, 40.225. The default rule is familiar: evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. The same body of law then carves out the classic exceptions — essential-element character, accused-opens-the-door reputation or opinion, and other-acts evidence offered for a non-propensity purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
Other-acts notice, 403 balancing, and limiting instructions do most of the real work. In criminal cases, prosecutors who dump prior misconduct without a specific non-propensity theory invite reversal; defense counsel who open the door to good-character testimony without anticipating rebuttal create the very propensity inference the rules were designed to police.
Oregon character-evidence opinions
STATE OF OREGON, Petitioner on Review, v. SHAWN GARY WILLIAMS, Respondent on Review
…dence that may be unfairly prejudicial to the accused: “Bad character evidence (such as other crimes by the accused) is excluded under the propensity rule [of OEC 404(3)], not because it is irrelevant, but because of the risk of unfair prejudice to the accused. The propensity rule’s general prohibition of bad character evidence, codified in OEC 404(2) and OEC 404(3), is a speci…
STATE OF OREGON, Petitioner on Review, v. SHAWN GARY WILLIAMS, Respondent on Review is worth reading on Oregon character evidence because the court put the point in its own words: "Bad character evidence (such as other crimes by the accused) is excluded under the propensity rule [of OEC 404(3)], not because it is irrelevant, but because of the risk of unfair prejudice to the accused." Use that passage as the starting point, then read the facts that precede it.
State v. Davis
State v. Davis, 372 Or. 618 (2024)
…the Court of Appeals held that the notes were inadmissible character evidence under OEC 404(3), because the relevance of the notes to defendant’s motive to commit a sexual assault depended on a character-based propensity inference. State v. Davis, 290 Or App 244, 248, 414 P3d 887 (2018) (Davis I). The Court of Appeals remanded the case to the trial court for a determi- nation…
Practitioners open State v. Davis when Oregon character evidence turns on the distinction in this sentence: "Court of Appeals held that the notes were inadmissible character evidence under OEC 404(3), because the relevance of the notes to defendant’s motive to commit a sexual assault depended on a character-based propensity inference. State v." Do not lift it out of the facts the court was deciding.
STATE OF OREGON, Petitioner on Review, v. GLENN A. MARSHALL, Respondent on Review
…testimony and that, in essence, it called for inadmissible character evidence. Defendant argued that the testimony was admissible character evidence under OEC 404-(2)(b), 2 because it tended to suggest that the victim was falsely accusing him of robbing her. The trial court sustained the state’s objection, explaining: “I’m going to sustain the objection. The secondary area tha…
On character evidence, STATE OF OREGON, Petitioner on Review, v. GLENN A. MARSHALL, Respondent on Review speaks to the Oregon dispute in this passage: "Defendant argued that the testimony was admissible character evidence under OEC 404-(2)(b), 2 because it tended to suggest that the victim was falsely accusing him of robbing her. The trial court sustained the state’s objection, explaining: “I’m going to sustain the objection." The surrounding opinion shows how the court applied that language to the record.
State v. Travis
State v. Travis, 320 Or. App. 460 (2022)
…e of prior conduct to show sexual purpose was impermissible character evidence under OEC 404(3)); State v. Levasseur, 309 Or App 745, 753, 483 P3d 1167, adh’d as modified, 312 Or App 733, 489 P3d 630, rev den, 368 Or 788 (2021) (same); State v. Terry, 309 Or App 459, 463-64, 482 P3d 105 (2021) (same). Due to that concession, the res- olution of this appeal reduces to whether th…
Practitioners open State v. Travis when Oregon character evidence turns on the distinction in this sentence: "OEC 404(3)); State v. Levasseur, 309 Or App 745, 753, 483 P3d 1167, adh’d as modified, 312 Or App 733, 489 P3d 630, rev den, 368 Or 788 (2021) (same); State v. Terry, 309 Or App 459, 463-64, 482 P3d 105 (2021) (same)." Do not lift it out of the facts the court was deciding.
STATE OF OREGON, Appellant, v. JOHN ERVA DUNN, Respondent
STATE OF OREGON, Appellant, v. JOHN ERVA DUNN, Respondent, 160 Or. App. 422 (1999)
…hout the evidence.” The court stated in Pinnell that “[b]ad character evidence (such as other crimes by the accused) is excluded under the propensity rule, not because it is irrelevant, but because of the risk of unfair prejudice to the accused” and that the rule prohibiting it is “a specific application of OEC 403.” 311 Or at 105-06. A leading commentator suggests that propens…
STATE OF OREGON, Appellant, v. JOHN ERVA DUNN, Respondent is worth reading on Oregon character evidence because the court put the point in its own words: "Pinnell that “[b]ad character evidence (such as other crimes by the accused) is excluded under the propensity rule, not because it is irrelevant, but because of the risk of unfair prejudice to the accused” and that the rule prohibiting it is “a specific application of OEC 403." Use that passage as the starting point, then read the facts that precede it.
STATE OF OREGON, Respondent, v. IVAN ENAKIEV, Appellant
STATE OF OREGON, Respondent, v. IVAN ENAKIEV, Appellant, 175 Or. App. 589 (2001)
…h defendant that the court erred in excluding the proffered character evidence and that the error was not harmless. Accordingly, we reverse and remand for a new trial. This prosecution arose from interactions between defendant and the complainant, D, on the evening of December 15,1998. Defendant, a recent immigrant from Moldavia, was living with his family at an apartment compl…
Practitioners open STATE OF OREGON, Respondent, v. IVAN ENAKIEV, Appellant when Oregon character evidence turns on the distinction in this sentence: "Accordingly, we reverse and remand for a new trial. This prosecution arose from interactions between defendant and the complainant, D, on the evening of December 15,1998." Do not lift it out of the facts the court was deciding.
State v. Tinoco-Camarena
State v. Tinoco-Camarena, 311 Or. App. 295 (2021)
…’s injuries, and testimony from Roth would be impermissible character evidence and more prej- udicial than probative. The trial court denied defendant’s pretrial motion and his objection during the trial. The court admitted the evidence for the noncharacter purpose of show- ing that defendant’s motive and intent were to rape N when he attacked her. At the conclusion of the init…
On character evidence, State v. Tinoco-Camarena speaks to the Oregon dispute in this passage: "Roth would be impermissible character evidence and more prej- udicial than probative. The trial court denied defendant’s pretrial motion and his objection during the trial." The surrounding opinion shows how the court applied that language to the record.
STATE OF OREGON, Plaintiff-Respondent, v. MOJI MOMENI, Defendant-Appellant
STATE OF OREGON, Plaintiff-Respondent, v. MOJI MOMENI, Defendant-Appellant, 234 Or. App. 193 (2010)
…r of fact could only consider the evidence as propensity or character evidence, then the evidence should be excluded under OEC 404(3). If, however, a reasonable trier of fact could also draw from the evidence a rational inference that does not rely on the defendant's character or propensity to do evil, then the evidence is properly admissible. See Johnson, 340 Or. at 338, 131 P…
On character evidence, STATE OF OREGON, Plaintiff-Respondent, v. MOJI MOMENI, Defendant-Appellant speaks to the Oregon dispute in this passage: "OEC 404(3). If, however, a reasonable trier of fact could also draw from the evidence a rational inference that does not rely on the defendant's character or propensity to do evil, then the evidence is properly admissible. See Johnson, 340 Or." The surrounding opinion shows how the court applied that language to the record.
Frequently asked questions
What is the primary evidence source in Oregon?
Oregon applies the Oregon Evidence Code (ORS ch. 40). Oregon codified FRE-based rules in ORS ch. 40; Oregon numbers rules as ORS 40.xxx decimals that correspond to FRE rule numbers (e.g., 40.150 for Rule 401).
How do Oregon courts decide relevance and unfair prejudice?
Under ORS §§ 40.150, 40.170, evidence must make a fact of consequence more or less probable, and the court may exclude relevant evidence when unfair prejudice, confusion, or waste of time substantially outweighs its probative value.
Are party admissions hearsay in Oregon?
Party-opponent statements under ORS § 40.475(1)(b) are generally excluded from the hearsay ban (or treated as an exception, depending on local drafting). They may be offered against the party who made or adopted them without showing unavailability.
What foundation is required for business records?
Under ORS § 40.475(6), show a record made at or near the time from someone with knowledge, kept in the course of a regularly conducted activity, as a regular practice, through a custodian, qualified witness, or allowed certification — subject to trustworthiness attack.
When can I use a deposition at trial in Oregon?
ORS § 40.480(2)(a) and ORCP 39 and 43 govern civil deposition use at trial when witnesses are unavailable. Criminal discovery follows ORS ch. 135; deposition testimony at trial requires ORS ch. 40 hearsay exceptions with unavailability under ORS § 40.480(1).
Why is authenticity separate from hearsay?
Authenticity asks whether the item is what you claim it is; hearsay asks whether out-of-court assertions inside it may be used for their truth. You can lose on either ground independently. Oregon authenticity practice starts with ORS §§ 40.490, 40.495.
Where do dying declarations and medical statements fit?
Dying declarations under ORS § 40.480(2)(b) require belief in impending death and concern the cause or circumstances of that believed death. Medical statements under ORS § 40.475(4) require a genuine diagnostic or treatment purpose and reasonable pertinence to care.