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Chapter 41 — EvidenceGenerally 2009 EDITION  EVIDENCEGENERALLY EVIDENCEAND WITNESSES 41.010       Judicialevidence; proof 41.110       Satisfactoryevidence 41.270       Proofof usage 41.415       Photographof victim in prosecution for criminal homicide 41.500       “Secondaryevidence” defined for ORS 41.500 to 41.580 41.510       Indispensableevidence 41.520       Evidenceto prove a will 41.530       Evidenceof representations as to third persons 41.560       Grantor assignment of trust 41.570       Contractsand communications made by telegraph 41.580       Statuteof frauds 41.660       Admissibilityof objects cognizable by the senses 41.675       Inadmissibilityof certain data provided to peer review body of health care providers andhealth care groups 41.685       Inadmissibilityof certain data relating to emergency medical services system 41.740       Parolevidence rule 41.815       Evidenceof compliance with or attempt to comply with ORCP 32 I; when admissible 41.905       Admissibilityof certain traffic offense procedures in subsequent civil action 41.910       Certainintercepted communications inadmissible 41.930       Admissibilityof copies of original records 41.945       Applicationof ORS 41.930 and ORCP 55 H       41.010Judicial evidence; proof. Judicial evidence is the means, sanctioned by law,of ascertaining in a judicial proceeding the truth respecting a question offact. Proof is the effect of evidence, the establishment of the fact byevidence.       41.020 [Repealed by1981 c.892 §98]       41.030 [Repealed by1981 c.892 §98]       41.040 [Repealed by1981 c.892 §98]       41.050 [Repealed by1981 c.892 §98]       41.060 [Repealed by1981 c.892 §98]       41.070 [Repealed by1981 c.892 §98]       41.080 [Repealed by1981 c.892 §98]       41.090 [Repealed by1981 c.892 §98]       41.100 [Repealed by1981 c.892 §98]       41.110Satisfactory evidence. Satisfactory evidence is that which ordinarilyproduces moral certainty or conviction in an unprejudiced mind. It alone willjustify a verdict. Evidence less than this is insufficient evidence.       41.120 [Repealed by1981 c.892 §98]       41.130 [Repealed by1981 c.892 §98]       41.140 [Repealed by1981 c.892 §98]       41.150 [Repealed by1981 c.892 §98]       41.210 [Repealed by1981 c.892 §98]       41.220 [Repealed by1981 c.892 §98]       41.230 [Repealed by1981 c.892 §98]       41.240 [Repealed by1981 c.892 §98]       41.250 [Repealed by 1981c.892 §98]       41.260 [Repealed by1981 c.892 §98]       41.270Proof of usage.(1) Usage shall be proved by the testimony of at least two witnesses.      (2)Evidence may be given of usage to explain the true character of an act,contract or instrument when such true character is not otherwise plain, butusage is never admissible except as a means of interpretation. [Amended by 1981c.892 §86]       41.280 [Repealed by1981 c.892 §98]       41.310 [Repealed by1981 c.892 §98]       41.315 [1987 c.774 §§1,2;repealed by 1995 c.688 §6]       41.320 [Repealed by1981 c.892 §98]       41.330 [Repealed by1981 c.892 §98]       41.340 [Repealed by1981 c.892 §98]       41.350 [Amended by1971 c.127 §1; repealed by 1981 c.892 §98]       41.360 [Amended by1957 c.679 §1; 1961 c.726 §399; repealed by 1981 c.892 §98]       41.410 [Repealed by1981 c.892 §98]       41.415Photograph of victim in prosecution for criminal homicide. In aprosecution for any criminal homicide, a photograph of the victim while aliveshall be admissible evidence when offered by the district attorney to show thegeneral appearance and condition of the victim while alive. [1987 c.2 §8]       41.420 [Repealed by1981 c.892 §98]       41.430 [Repealed by1981 c.892 §98]       41.440 [Repealed by1981 c.892 §98]       41.450 [Repealed by1981 c.892 §98]       41.460 [Repealed by1981 c.892 §98]       41.470 [Repealed by1981 c.892 §98]       41.480 [Repealed by1981 c.892 §98]       41.500“Secondary evidence” defined for ORS 41.500 to 41.580. As used in ORS41.500 to 41.580, “secondary evidence” means a copy, or oral evidence, of anoriginal writing or object. [1981 c.892 §81]       41.510Indispensable evidence. Certain evidence is necessary to the validity ofparticular acts or the proof of particular facts.       41.520Evidence to prove a will. Evidence of a will shall be the written instrumentitself, or secondary evidence of the contents of the will, in the casesprescribed by law. [Amended by 1969 c.591 §271]       41.530Evidence of representations as to third persons. No evidence isadmissible to charge a person upon a representation as to the credit, skill orcharacter of a third person, unless the representation, or some memorandumthereof, be in writing, and either subscribed by or in the handwriting of theparty to be charged.       41.540 [Repealed by1977 c.479 §1]       41.550 [Repealed by1961 c.726 §427]       41.560Grant or assignment of trust. Every grant or assignment of anyexisting trust in lands, tenements, hereditaments, goods or things in action isvoid, unless it is in writing and subscribed by the party making it or by the lawfullyauthorized agent of the party.       41.570Contracts and communications made by telegraph. Contracts madeby telegraph shall be held to be in writing; and all communications sent bytelegraph, and signed by the sender, or by the authority of the sender, shallbe held to be in writing.       41.580Statute of frauds.(1) In the following cases the agreement is void unless it, or some note ormemorandum thereof, expressing the consideration, is in writing and subscribedby the party to be charged, or by the lawfully authorized agent of the party;evidence, therefore, of the agreement shall not be received other than thewriting, or secondary evidence of its contents in the cases prescribed by law:      (a)An agreement that by its terms is not to be performed within a year from themaking.      (b)An agreement to answer for the debt, default or miscarriage of another.      (c)An agreement by an executor or administrator to pay the debts of the testatoror intestate out of the estate of the executor or administrator.      (d)An agreement made upon consideration of marriage, other than a mutual promiseto marry.      (e)An agreement for the leasing for a longer period than one year, or for the saleof real property, or of any interest therein.      (f)An agreement concerning real property made by an agent of the party sought tobe charged unless the authority of the agent is in writing.      (g)An agreement authorizing or employing an agent or broker to sell or purchasereal estate for a compensation or commission; but if the note or memorandum ofthe agreement is in writing and subscribed by the party to be charged, or bythe lawfully authorized agent of the party, and contains a description of theproperty sufficient for identification, and authorizes or employs the agent orbroker to sell the property, and expresses with reasonable certainty the amountof the commission or compensation to be paid, the agreement shall not be voidfor failure to state a consideration.      (h)An agreement, promise or commitment to lend money, to otherwise extend credit,to forbear with respect to the repayment of any debt payable in money, tomodify or amend the terms under which the person has lent money or otherwiseextended credit, to release any guarantor or cosigner or to make any otherfinancial accommodation pertaining to an existing debt or other extension ofcredit. This paragraph does not apply:      (A)If no party to the agreement, promise or commitment is a financial institutionas defined in ORS 706.008, a consumer finance company licensed under ORSchapter 725 or a mortgage banker as defined in ORS 86A.100; or      (B)To a loan of money or extension of credit to a natural person which isprimarily for personal, family or household purposes and not for business oragricultural purposes or which is secured solely by residential propertyconsisting of one to four dwelling units, one of which is the primary residenceof the debtor.      (2)(a)Except as provided in this subsection, defenses and exceptions created byprovisions of the Oregon Revised Statutes or recognized by the courts of thisstate do not apply to subsection (1)(h) of this section.      (b)An agreement, promise or commitment which does not satisfy the requirements ofsubsection (1)(h) of this section, but which is valid in other respects, isenforceable if the party against whom enforcement is sought admits in the party’spleading, testimony or otherwise in court that the agreement, promise orcommitment was made. The agreement is not enforceable under this paragraphbeyond the dollar amount admitted.      (c)Nothing in subsection (1)(h) of this section precludes a party from seeking toprove the modification of any term relating to the time of repayment.      (3)(a)If a financial institution as defined in ORS 706.008, a consumer financecompany licensed under ORS chapter 725 or a mortgage banker as defined in ORS86A.100 lends money or extends credit, and subsection (1)(h) of this sectionapplies to the loan or extension of credit, the financial institution, consumerfinance company or mortgage banker shall, not later than the time the loan orextension of credit is initially made, include within the loan or creditdocument, or within a separate document which identifies the loan or extensionof credit, a statement which is underlined or in at least 10-point bold typeand which is substantially to the following effect:______________________________________________________________________________      UnderOregon law, most agreements, promises and commitments made by us concerningloans and other credit extensions which are not for personal, family orhousehold purposes or secured solely by the borrower’s residence must be inwriting, express consideration and be signed by us to be enforceable.______________________________________________________________________________      (b)The financial institution, consumer finance company or mortgage banker shallobtain the borrower’s signature on the original document described in paragraph(a) of this subsection and shall give the borrower a copy. [Amended by 1989c.967 §§1,19; 1993 c.508 §39; 1997 c.631 §373; 2003 c.386 §1]       41.590 [Repealed by1961 c.726 §427]       41.610 [Repealed by1981 c.892 §98]       41.615 [1959 c.353 §§1,3(subsection (2) enacted in lieu of 41.630); 1973 c.231 §1; repealed by 1977c.358 §1 (41.616 enacted in lieu of 41.615)]       41.616 [1977 c.358 §2(enacted in lieu of 41.615); repealed by 1979 c.284 §199]       41.617 [1977 c.358 §3;repealed by 1979 c.284 §199]       41.618 [1977 c.358 §4;repealed by 1979 c.284 §199]       41.620 [Repealed by1979 c.284 §199]       41.622 [1977 c.744 §2;repealed by 1979 c.284 §199]       41.625 [1959 c.349 §1;repealed by 1977 c.240 §1; (41.626 enacted in lieu of 41.625)]       41.626 [1977 c.240 §2(enacted in lieu of 41.625); repealed by 1979 c.284 §199]       41.630 [Repealed by1959 c.353 §2 (subsection (2) of 41.615 enacted in lieu of 41.630)]       41.631 [1977 c.240 §4;repealed by 1979 c.284 §199]       41.635 [1977 c.240 §3and 1977 c.358 §5; repealed by 1979 c.284 §199]       41.640 [Repealed by1981 c.892 §98]       41.650 [Repealed by1981 c.892 §98]       41.660Admissibility of objects cognizable by the senses. Whenever anobject, cognizable by the senses, has such a relation to the fact in dispute asto afford reasonable grounds of belief respecting it, or to make an item in thesum of the evidence, the object may be exhibited to the jury, or its existence,situation and character may be proved by witnesses. The exhibition of theobject to the jury shall be regulated by the sound discretion of the court.       41.670 [Repealed by1981 c.892 §98]       41.675Inadmissibility of certain data provided to peer review body of health careproviders and health care groups. (1) As used in this section, “peerreview body” includ
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  • Chapter 41 — EvidenceGenerally

     

    2009 EDITION

     

     

    EVIDENCEGENERALLY

     

    EVIDENCEAND WITNESSES

     

    41.010       Judicialevidence; proof

     

    41.110       Satisfactoryevidence

     

    41.270       Proofof usage

     

    41.415       Photographof victim in prosecution for criminal homicide

     

    41.500       “Secondaryevidence” defined for ORS 41.500 to 41.580

     

    41.510       Indispensableevidence

     

    41.520       Evidenceto prove a will

     

    41.530       Evidenceof representations as to third persons

     

    41.560       Grantor assignment of trust

     

    41.570       Contractsand communications made by telegraph

     

    41.580       Statuteof frauds

     

    41.660       Admissibilityof objects cognizable by the senses

     

    41.675       Inadmissibilityof certain data provided to peer review body of health care providers andhealth care groups

     

    41.685       Inadmissibilityof certain data relating to emergency medical services system

     

    41.740       Parolevidence rule

     

    41.815       Evidenceof compliance with or attempt to comply with ORCP 32 I; when admissible

     

    41.905       Admissibilityof certain traffic offense procedures in subsequent civil action

     

    41.910       Certainintercepted communications inadmissible

     

    41.930       Admissibilityof copies of original records

     

    41.945       Applicationof ORS 41.930 and ORCP 55 H

     

          41.010Judicial evidence; proof. Judicial evidence is the means, sanctioned by law,of ascertaining in a judicial proceeding the truth respecting a question offact. Proof is the effect of evidence, the establishment of the fact byevidence.

     

          41.020 [Repealed by1981 c.892 §98]

     

          41.030 [Repealed by1981 c.892 §98]

     

          41.040 [Repealed by1981 c.892 §98]

     

          41.050 [Repealed by1981 c.892 §98]

     

          41.060 [Repealed by1981 c.892 §98]

     

          41.070 [Repealed by1981 c.892 §98]

     

          41.080 [Repealed by1981 c.892 §98]

     

          41.090 [Repealed by1981 c.892 §98]

     

          41.100 [Repealed by1981 c.892 §98]

     

          41.110Satisfactory evidence. Satisfactory evidence is that which ordinarilyproduces moral certainty or conviction in an unprejudiced mind. It alone willjustify a verdict. Evidence less than this is insufficient evidence.

     

          41.120 [Repealed by1981 c.892 §98]

     

          41.130 [Repealed by1981 c.892 §98]

     

          41.140 [Repealed by1981 c.892 §98]

     

          41.150 [Repealed by1981 c.892 §98]

     

          41.210 [Repealed by1981 c.892 §98]

     

          41.220 [Repealed by1981 c.892 §98]

     

          41.230 [Repealed by1981 c.892 §98]

     

          41.240 [Repealed by1981 c.892 §98]

     

          41.250 [Repealed by 1981c.892 §98]

     

          41.260 [Repealed by1981 c.892 §98]

     

          41.270Proof of usage.(1) Usage shall be proved by the testimony of at least two witnesses.

          (2)Evidence may be given of usage to explain the true character of an act,contract or instrument when such true character is not otherwise plain, butusage is never admissible except as a means of interpretation. [Amended by 1981c.892 §86]

     

          41.280 [Repealed by1981 c.892 §98]

     

          41.310 [Repealed by1981 c.892 §98]

     

          41.315 [1987 c.774 §§1,2;repealed by 1995 c.688 §6]

     

          41.320 [Repealed by1981 c.892 §98]

     

          41.330 [Repealed by1981 c.892 §98]

     

          41.340 [Repealed by1981 c.892 §98]

     

          41.350 [Amended by1971 c.127 §1; repealed by 1981 c.892 §98]

     

          41.360 [Amended by1957 c.679 §1; 1961 c.726 §399; repealed by 1981 c.892 §98]

     

          41.410 [Repealed by1981 c.892 §98]

     

          41.415Photograph of victim in prosecution for criminal homicide. In aprosecution for any criminal homicide, a photograph of the victim while aliveshall be admissible evidence when offered by the district attorney to show thegeneral appearance and condition of the victim while alive. [1987 c.2 §8]

     

          41.420 [Repealed by1981 c.892 §98]

     

          41.430 [Repealed by1981 c.892 §98]

     

          41.440 [Repealed by1981 c.892 §98]

     

          41.450 [Repealed by1981 c.892 §98]

     

          41.460 [Repealed by1981 c.892 §98]

     

          41.470 [Repealed by1981 c.892 §98]

     

          41.480 [Repealed by1981 c.892 §98]

     

          41.500“Secondary evidence” defined for ORS 41.500 to 41.580. As used in ORS41.500 to 41.580, “secondary evidence” means a copy, or oral evidence, of anoriginal writing or object. [1981 c.892 §81]

     

          41.510Indispensable evidence. Certain evidence is necessary to the validity ofparticular acts or the proof of particular facts.

     

          41.520Evidence to prove a will. Evidence of a will shall be the written instrumentitself, or secondary evidence of the contents of the will, in the casesprescribed by law. [Amended by 1969 c.591 §271]

     

          41.530Evidence of representations as to third persons. No evidence isadmissible to charge a person upon a representation as to the credit, skill orcharacter of a third person, unless the representation, or some memorandumthereof, be in writing, and either subscribed by or in the handwriting of theparty to be charged.

     

          41.540 [Repealed by1977 c.479 §1]

     

          41.550 [Repealed by1961 c.726 §427]

     

          41.560Grant or assignment of trust. Every grant or assignment of anyexisting trust in lands, tenements, hereditaments, goods or things in action isvoid, unless it is in writing and subscribed by the party making it or by the lawfullyauthorized agent of the party.

     

          41.570Contracts and communications made by telegraph. Contracts madeby telegraph shall be held to be in writing; and all communications sent bytelegraph, and signed by the sender, or by the authority of the sender, shallbe held to be in writing.

     

          41.580Statute of frauds.(1) In the following cases the agreement is void unless it, or some note ormemorandum thereof, expressing the consideration, is in writing and subscribedby the party to be charged, or by the lawfully authorized agent of the party;evidence, therefore, of the agreement shall not be received other than thewriting, or secondary evidence of its contents in the cases prescribed by law:

          (a)An agreement that by its terms is not to be performed within a year from themaking.

          (b)An agreement to answer for the debt, default or miscarriage of another.

          (c)An agreement by an executor or administrator to pay the debts of the testatoror intestate out of the estate of the executor or administrator.

          (d)An agreement made upon consideration of marriage, other than a mutual promiseto marry.

          (e)An agreement for the leasing for a longer period than one year, or for the saleof real property, or of any interest therein.

          (f)An agreement concerning real property made by an agent of the party sought tobe charged unless the authority of the agent is in writing.

          (g)An agreement authorizing or employing an agent or broker to sell or purchasereal estate for a compensation or commission; but if the note or memorandum ofthe agreement is in writing and subscribed by the party to be charged, or bythe lawfully authorized agent of the party, and contains a description of theproperty sufficient for identification, and authorizes or employs the agent orbroker to sell the property, and expresses with reasonable certainty the amountof the commission or compensation to be paid, the agreement shall not be voidfor failure to state a consideration.

          (h)An agreement, promise or commitment to lend money, to otherwise extend credit,to forbear with respect to the repayment of any debt payable in money, tomodify or amend the terms under which the person has lent money or otherwiseextended credit, to release any guarantor or cosigner or to make any otherfinancial accommodation pertaining to an existing debt or other extension ofcredit. This paragraph does not apply:

          (A)If no party to the agreement, promise or commitment is a financial institutionas defined in ORS 706.008, a consumer finance company licensed under ORSchapter 725 or a mortgage banker as defined in ORS 86A.100; or

          (B)To a loan of money or extension of credit to a natural person which isprimarily for personal, family or household purposes and not for business oragricultural purposes or which is secured solely by residential propertyconsisting of one to four dwelling units, one of which is the primary residenceof the debtor.

          (2)(a)Except as provided in this subsection, defenses and exceptions created byprovisions of the Oregon Revised Statutes or recognized by the courts of thisstate do not apply to subsection (1)(h) of this section.

          (b)An agreement, promise or commitment which does not satisfy the requirements ofsubsection (1)(h) of this section, but which is valid in other respects, isenforceable if the party against whom enforcement is sought admits in the party’spleading, testimony or otherwise in court that the agreement, promise orcommitment was made. The agreement is not enforceable under this paragraphbeyond the dollar amount admitted.

          (c)Nothing in subsection (1)(h) of this section precludes a party from seeking toprove the modification of any term relating to the time of repayment.

          (3)(a)If a financial institution as defined in ORS 706.008, a consumer financecompany licensed under ORS chapter 725 or a mortgage banker as defined in ORS86A.100 lends money or extends credit, and subsection (1)(h) of this sectionapplies to the loan or extension of credit, the financial institution, consumerfinance company or mortgage banker shall, not later than the time the loan orextension of credit is initially made, include within the loan or creditdocument, or within a separate document which identifies the loan or extensionof credit, a statement which is underlined or in at least 10-point bold typeand which is substantially to the following effect:

    ______________________________________________________________________________

          UnderOregon law, most agreements, promises and commitments made by us concerningloans and other credit extensions which are not for personal, family orhousehold purposes or secured solely by the borrower’s residence must be inwriting, express consideration and be signed by us to be enforceable.

    ______________________________________________________________________________

          (b)The financial institution, consumer finance company or mortgage banker shallobtain the borrower’s signature on the original document described in paragraph(a) of this subsection and shall give the borrower a copy. [Amended by 1989c.967 §§1,19; 1993 c.508 §39; 1997 c.631 §373; 2003 c.386 §1]

     

          41.590 [Repealed by1961 c.726 §427]

     

          41.610 [Repealed by1981 c.892 §98]

     

          41.615 [1959 c.353 §§1,3(subsection (2) enacted in lieu of 41.630); 1973 c.231 §1; repealed by 1977c.358 §1 (41.616 enacted in lieu of 41.615)]

     

          41.616 [1977 c.358 §2(enacted in lieu of 41.615); repealed by 1979 c.284 §199]

     

          41.617 [1977 c.358 §3;repealed by 1979 c.284 §199]

     

          41.618 [1977 c.358 §4;repealed by 1979 c.284 §199]

     

          41.620 [Repealed by1979 c.284 §199]

     

          41.622 [1977 c.744 §2;repealed by 1979 c.284 §199]

     

          41.625 [1959 c.349 §1;repealed by 1977 c.240 §1; (41.626 enacted in lieu of 41.625)]

     

          41.626 [1977 c.240 §2(enacted in lieu of 41.625); repealed by 1979 c.284 §199]

     

          41.630 [Repealed by1959 c.353 §2 (subsection (2) of 41.615 enacted in lieu of 41.630)]

     

          41.631 [1977 c.240 §4;repealed by 1979 c.284 §199]

     

          41.635 [1977 c.240 §3and 1977 c.358 §5; repealed by 1979 c.284 §199]

     

          41.640 [Repealed by1981 c.892 §98]

     

          41.650 [Repealed by1981 c.892 §98]

     

          41.660Admissibility of objects cognizable by the senses. Whenever anobject, cognizable by the senses, has such a relation to the fact in dispute asto afford reasonable grounds of belief respecting it, or to make an item in thesum of the evidence, the object may be exhibited to the jury, or its existence,situation and character may be proved by witnesses. The exhibition of theobject to the jury shall be regulated by the sound discretion of the court.

     

          41.670 [Repealed by1981 c.892 §98]

     

          41.675Inadmissibility of certain data provided to peer review body of health careproviders and health care groups. (1) As used in this section, “peerreview body” includ

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