Oregon Evidence Distinctions

Question 1

In the Oregon Evidence Code, what is “habit?”

Answer 1

Habit =
regular practice of meeting a particular kind of situation with a specific, distinctive type of conduct.

“distinctive” = at least a semi-automatic and recurring response, beyond mere obedience to law, by an actor who is confronted by a particular situation to which a variety of definable responses are more or less equally reasonable.

Question 2

What things are included in the FRE, but excluded in the OEC for things to balance against the probative value of evidence?

Answer 2

“Unfair surprise” and “Waste of time” are OMITTED by the OEC

Question 3

What is the rule in the OEC regarding subsequent remedial measures?

Answer 3

OEC doesn’t talk about subsequent remedial measures for strict liability.

However, Oregon Supreme Court ruled that subsequent remedial measures are inadmissible for both strict liability and negligence cases.

Question 4

What are the OEC rules regarding violent character evidence

Answer 4

(1) Civil cases: where self-defense is claimed, evidence of either party’s violent character is admissible
(2) Criminal cases: where ∆ has alleged self-defense and provided evidence of V’s violent character, Prosecution may rebut w/ evidence of V’s peaceful character but NOT ∆’s VIOLENT CHARACTER

Question 5

What are the OEC regarding a rape victim’s past behavior?

Answer 5

Specific evidence of victim’s past sexual behavior is inadmissible unless the evidence:

(1) is necessary to explain or rebut scientific or medical evidence offered by the state,
(2) relates to the motive of bias of the victim, or
(3) is constitutionally required.

Also, opinion/reputation of V’s past sexual behavior or manner of dress is PROHIBITED

Question 6

What is the OEC regarding specific acts of past misconduct?

Answer 6

Evidence may be used for purposes OTHER than ∆’s propensity to commit the crime charged (Think MIMIC)

Question 7

What is the OEC regarding patterns of abuse?

Answer 7

Any party can introduce evidence, including expert testimony, of a pattern or history of abuse of a person so long as that evidence is not inadmissible under any other rule.

(battered women’s syndrome admissible to explain a witness’s behavior)

Question 8

Is the impact of a crime on the victim’s family or personal characteristics of the victim admissible?

Answer 8

In a capital sentencing hearing, YES.

Question 9

What are the specific OEC rules on judicial notice of facts?

Answer 9

(1) Facts in criminal cases can’t be judicially noted for the first time on appeal because they must be submitted to the jury.
(2) In criminal cases, judge must instruct the jury that it may but is not required to accept a fact judicially noticed in favor of the PROSECUTION.

BUT…the judge may properly instruct the jury to find a fact judicially noted in favor of defense.

Question 10

What is the OEC regarding jury views of the scene?

Answer 10

Jury views do not constitute evidence.

Question 11

What are the OEC regarding self-authenticating documents?

Answer 11

(1) Business records are not self-authenticating
(2) Data recorded by Oregon State Police and produced by data retrieval from a computer system operated by the OSP ARE self-authenticating

Question 12

What is the OEC distinction regarding the Best Evidence Rule?

Answer 12

“Duplicate” includes faxes

Question 13

What does Oregon’s Dead Man Act state?

Answer 13

Oregon requires:
competent satisfactory evidence other than the testimony of the claimant
to support a claim that has been disallowed by a decedent’s personal representative

Question 14

What is the OEC regarding the procedures of eyewitness identification of a person?

Answer 14

In a criminal trial, when facts demonstrate that an eyewitness could have relied on something other than her own perception to identify the ∆, the state MUST establish by a PREPONDERANCE of the evidence that the identification was based on a permissible basis and not on an impermissible one.

Question 15

What is the OEC rule regarding expert opinion on ultimate issues?

Answer 15

Oregon has not adopted the FRE regarding expert opinion on ultimate issues of the ∆’s sanity or mental state in criminal cases.

Question 16

What is the OEC regarding authoritative texts an treatises?

Answer 16

The federal hearsay exception for learned treatises is OMITTED by the OEC

Question 17

What is the OEC rule regarding evidence of witness bias or interest in the form of a statement or conduct?

Answer 17

(1) When examining a witness regarding a statement, don’t have to show statement to the witness at that time. But, on request, have to show it to opposing party.
(2) If witness admits statement/conduct, the impeachment is complete and additional evidence of that bias or interest is INADMISSIBLE
(3) However, if witness does not admit statement/conduct, extrinsic evidence may be introduced to prove

Question 18

When may convictions be used to impeach the credibility of a witness?

Answer 18

(1) Any felony less than 15 years old (from conviction or release) may be used
(2) Any crime involving false statement or dishonesty, and

(3) if ∆ is charged w/ committing serious violent crime against a family or household member, the ∆ may be impeached w/ evidence that he was convicted of misdemeanor assault, menacing, or harassment of a family or household member.

Question 19

If evidence of a criminal conviction is properly used to impeach a witness, does the witness have an opportunity to explain?

Answer 19

Yes, the witness is allowed to briefly explain the circumstances of the crime or former conviction.

Then, the other side has an opportunity to rebut the explanation.

Question 20

What is the OEC rule regarding impeaching a witness by showing prior acts of misconduct that did not result in a conviction?

Answer 20

Oregon prohibits impeaching a witness with specific acts of misconduct that did not result in a conviction.

Remember though, that a character witness’ testimony may be impeached by cross-examination about the party’s bad acts.

Question 21

What distinguishes the OEC Rule of Completeness from the FRE Rule of Completeness?

Answer 21

In Oregon, the rule applies not just to writings and recorded statements, but also to acts, declarations, and conversations.

Thus, if one party offers part of something, the adverse party may introduce the remainder of the thing to show the fully story.

Question 22

What is the Oregon rule regarding objections to jury instructions?

Answer 22

In Oregon, any attorney must make specific, timely exception on the record to preserve the right to appeal when dissatisfied with a jury instruction.

Question 23

In Oregon, how are claims of privilege conducted?

Answer 23

To the extent practicable, without the knowledge of the jury.

Question 24

In Oregon, who counts as a “representative” of the client for purposes of attorney-client privilege?

Answer 24

Representative of the client =

(1) a principal, officer, or director of the client
(2) a person who has authority to obtain professional legal services, or act on legal advice rendered on behalf of the client,
(3) a person who, for the purpose of effectuating legal representation for the client, makes or receives confidential communication while acting in the scope of his employment for the client.

Question 25

In Oregon, when does the attorney-client privilege not apply?

Answer 25

When the communications reveal that the client has a clear and serious intent to commit a crime involving:
physical injury, threat to the physical safety of any person, sexual abuse, or death.

Question 26

What is the Oregon rule regarding physician-patient privilege?

Answer 26

Applies ONLY to:

(1) Civil cases
(2) statements for purpose of diagnosis/treatment
(3) but statements need not have been made by the patient, if the speaker is participating at the direction of the physician

Question 27

What is the Oregon rule regarding physician committee and training data?

Answer 27

Written reports, notes, or records of any committee connected with the training, supervision, or discipline of physicians are privileged and inadmissible in any judicial proceeding.

Question 28

What is the Oregon rule regarding psychotherapy privilege?

Answer 28

Statements made to psychotherapist for diagnosis/treatment are inadmissible in ALL cases (criminal and civil)

Except:
privilege does not apply to patient communications that reveal that the patient has a clear and serious intent to commit a crime involving physical injury, threat to the physical safety of any person, sexual abuse, animal cruelty, or death.

Question 29

What is the Oregon rule regarding statements made to clinical social workers?

Answer 29

Statements to clinical social workers for the purpose diagnosis/treatment are privileged, except:

statements that reveal a clear intent to commit a crime reasonably expected to result in physical injury to a person or that reveal that a MINOR was the victim of a crime, abuse, or neglect.

Question 30

What are the Oregon rules regarding spousal immunity and communications?

Answer 30

Communications: follows Federal rule; communication is confidential if spouse intended it to be confiential

Spousal immunity:
Like federal rule, this privilege belongs to the spouse-witness.
Unlike Federal Rule, the privilege may NOT be asserted as to matters that have occurred PRIOR to the marriage.

Question 31

What is the Oregon rule regarding accountant-client privilege?

Answer 31

There is no such privilege in Oregon

Question 32

What is the Oregon rule regarding a Professional Journalist Privilege?

Answer 32

The journalist holds the privilege, meaning that an informant’s identity may be revealed over the protests of the informant. It is up to the journalist.

Question 33

What is the Oregon rule regarding Governmental Privileges?

Answer 33

Gov entities may refuse to disclose the identity of a government informant.

Question 34

Nurse-patient privilege?

Answer 34

Yes, licensed professional nurse can’t be examined about info acquired while caring for patient unless patient consents.

Question 35

What are the rules of School Employee-student privilege in Oregon?

Answer 35

(1) In civil action, staff member can’t reveal personal affairs of student/family that would damage or incriminate them
(2) In civil OR criminal action, public school counselor can’t disclose w/o consent, any communication by student concerning past use/sale of drugs or alcohol.
- –but, counselor make disclose info or take emergency measures if there is clear and imminent danger to student or others

Question 36

May witnesses be excluded and sequestered during proceedings of the trial?

Answer 36

Yes, except:

(1) a party, or officer/employee of party
(2) person whose presence is shown by a party to be essential to the presentation of the party’s cause, or
(3) a victim of criminal case, including family in homicide case, or guardian when victim is a minor

Question 37

What statements count as hearsay under the federal rules, but not hearsay under the Oregon evidence rules?

Answer 37

In Oregon, NOT hearsay when:
(1) declarant testifies and is subject to cross-exam about statement, the statement is consistent w/ testimony, and the statement is offered to rebut an inconsistent statement

(2) statement is made in deposition taken in same proceeding

Question 38

What is the Oregon rule regarding Dying Declarations?

Answer 38

Admissible in all civil and criminal cases.

Question 39

What is the Oregon rule regarding statements made in a Professional Capacity?

Answer 39

IF:
a now UNAVAILABLE person made statement at or near the time of a transaction, and that person was in a position to know the facts that were stated,
THEN
that will be admissible.

Applies to both statements of fact and opinion

Question 40

What is the OEC rule regarding the present sense impression hearsay exception?

Answer 40

This is NOT an exception under the Oregon rules.

Question 41

What is the Oregon evidence rule regarding the authentication of business records?

Answer 41

Need a custodian or other qualified witness to authenticate.

Question 42

In Oregon, are police search warrants admissible?

Answer 42

Yes, under the public records exception.

Question 43

May evidence of prior convictions be admitted?

Answer 43

Yes, any crime other than a traffic offense may be used to prove a fact essential to sustain the judgment.

Question 44

How may learned treatises be used in Oregon courts?

Answer 44

(1) NOT for substantive evidence, but

(2) May be used to impeach expert witness’s testimony on cross-examination

Question 45

May a complaint of abuse or sexual misconduct be admitted in Oregon Courts?

Answer 45

Complaints by child, developmentally disabled, and adult 65 or older, YES IF:
-only used for purpose of showing that complaint was made, not for supporting the allegations therein

Question 46

Is there any instance where a complaint of abuse or sexual misconduct may be admissible to support the allegations of abuse?

Answer 46

Yes, statements by child, mentally disabled, or elderly, IF:
(1) declarant testifies and is subject to cross-exam, OR

(2) declarant was under 12 or over 65 at the time the statement was made,
is unavailable to testify, and
there are indicia of reliability.

Question 47

Without any prior written complaints, what if a child under 12 or developmentally disabled witness is substantially likely to suffer emotional or psychological harm by being required to testify in open court?

Answer 47

Testimony (direct and cross examination) may be conducted in another location and presented via audio-visual hook-up in the court room.

Question 48

Are statements of domestic violence by the victim admissible in Oregon courts?

Answer 48

Yes, IF:

(1) statement was made by victim w/in 24 hours after incident occurred,
(2) it was recorded electronically or in writing OR was made to a law enforcement officer, corrections officer, emergency medical provider, or firefighter, AND
(3) there are sufficient indicia of reliability

Question 49

In Oregon, what have courts determined are within a criminal ∆’s due process rights?

Answer 49

Due process includes the right o fan accused ro present relevant evidence on his behalf, even if such evidence does not meet the technical requirements of a hearsay exception.

Question 50

What is the Oregon rule regarding rebutting a presumption?

Answer 50

Oregon follows the MORGAN APPROACH, meaning:

A presumption will shift the burden of persuasion to the party rebutting the presumed fact.

For example: π may use a presumption to put the burden of proof on the rebutting party, and then the rebutting party must prove the fact by preponderance.

Question 51

What is the Oregon rule regarding judges commenting on evidence or witness testimony?

Answer 51

Judge is FORBIDDEN from commenting on the weight of the evidence or the credibility of the witnesses.