Author: Linda Kruschke

Adoption of the Oregon Evidence Code

The current Oregon Evidence Code was adopted in 1981. See Or Laws 1981, ch 892. Prior to 1981, the evidence rules in Oregon had not seen a major overhaul since 1862. For a thorough history of the law of evidence in Oregon, culminating in the Oregon Evidence Code, see Laird C. Kirkpatrick, Reforming Evidence Law in Oregon, 59 Or L Rev 43 (1980), and Robert E. Jones, An Overview of the Oregon Evidence Code, 19 Willamette L Rev 343 (1983).

“In the last two decades [1960s and 1970s], there has been a significant national movement towards codifying or recodifying state evidence rules. An initial impetus for this movement was the 1953 promulgation of the Uniform Rules of Evidence by the Commissioners on the Uniform State Laws. . . . The most significant factor encouraging reform, however, was the adoption of the Federal Rules of Evidence in 1975. . . . A comprehensive new evidence code for Oregon, based to a significant extent on the Federal Rules of Evidence, will be presented to the 1981 legislature.”

Kirkpatrick, 59 Or L Rev at 43–44.

The proposal presented to the legislature in 1981 was prepared by the hard work of the Oregon Advisory Committee on Evidence Law Revision, which comprised “[f]ifteen distinguished attorneys and judges from throughout the state.” Kirkpatrick, 59 Or L Rev at 46.

One of the problems with evidence law before the Oregon Evidence Code was adopted, was that it was “not consolidated in one place, it [was] not possible to have instant access to it during the course of a trial.” Kirkpatrick, 59 Or L Rev at 46. The codification made it possible, and the new OSB Legal Publications edition of the Oregon Evidence Code with Legislative Commentary makes it incredibly convenient.

After adoption, the Oregon Evidence Code was added to the Oregon Revised Statutes as chapter 40. Unfortunately, the rule numbers do not correspond logically with the ORS section numbers. For our readers’ convenience, the OSB Legal Publications style for citing the code includes both the rule and the statute in the citation. For example: OEC 404 (ORS 40.170).

 Subsequent Amendments and Other Changes

In the 42 years since its adoption, 59 sections of ORS chapter 40 have remained unchanged. This is a testament to the hard work of the Advisory Committee and the legislature in crafting a lasting legacy.

However, some things have changed since the Oregon Evidence Code was adopted that have required amendments. In total, 26 of the statutory sections have been amended, some only once or twice. But eight of those statutes have been amended more than three times.

• OEC 101 (ORS 40.015) on applicability of the code was amended by 10 legislatures, most recently in 2013.
• OEC 412 (ORS 40.210) related to the relevance of a victim’s past behavior in sex offense cases was amended by five legislatures, most recently in 2019.
• OEC 503 (ORS 40.225) on lawyer–client privilege was amended by five legislatures, most recently in 2018.
• OEC 510 (ORS 40.275) on the identity of an informer was amended by four legislatures, most recently in 2015.
• OEC 604 (ORS 40.325) related to interpreters was amended by five legislatures, most recently in 2015.
• OEC 609 (ORS 40.355) on impeachment of a witness by evidence of conviction of crime was amended seven times, most recently in 2019.
• OEC 803 (ORS 40.460) related to hearsay exceptions where the availability of declarant is immaterial was amended by 11 legislatures, most recently in 2017.
• OEC 902 (ORS 40.510) on self-authentication of documents was amended seven times, most recently in 2009.

In addition to the amendments, 12 new evidence rules have been adopted since 1981.

• OEC 404-1 (ORS 40.172) related to expert testimony on the pattern, practice, or history of abuse was adopted in 1997.
• OEC 412-1 (ORS 40.211) on evidence that is not admissible in a civil proceeding involving sexual misconduct was adopted in 2017.
• OEC 413 (ORS 40.215) related to measures and assessments intended to minimize the impact of or plan for natural disaster was adopted in 2015.
• OEC 503-1 (ORS 40.227) dealing with the right of a client to communicate with their lawyer and the inadmissibility of evidence obtained or disclosed without client’s consent was adopted in 2019.
• OEC 504-5 (ORS 40.252) on communications that reveal the intent to commit certain crimes was adopted in 2001, and subsequently amended in 2007 and 2019.
• OEC 507 (ORS 40.262) on counselor–client privilege was adopted in 1989.
• OEC 507-1 (ORS 40.264) on certified advocate–victim privilege was adopted in 2015 and amended in 2017.
• OEC 509-1 (ORS 40.272) on sign language interpreter privilege was adopted in 1993 and amended in 2007.
• OEC 509-2 (ORS 40.273) on non-English-speaking person–interpreter privilege was adopted in 1993.
• OEC 509-3 (ORS 40.274) on legislative branch offsite process counselor privilege was adopted in 2019.
• OEC 706 (ORS 40.430) related to the impeachment of an expert witness by learned treatise was adopted in 1999.
• OEC 1003-1 (ORS 40.562) related to the admissibility of a reproduction of certain documents was adopted in 1995.

Finally, one rule has been repealed. OEC 606-1 (ORS 40.340) on the competency of an attorney who represents a part of litigation to be a witness was repealed in 1987.

Conclusion

Before adoption of the Oregon Evidence Code, the need was apparent. As Laird Kirkpatrick wrote, “Evidence is too important an area of law to consign to legislative neglect. The rules of evidence affect not merely the efficiency and expense of litigation, but the quality of justice as well.” Kirkpatrick, 43 Or L Rev at 123.

The Oregon Evidence Code and related legislative commentary is also too important to have it be difficult to access. The OSB Legal Publications edition of this important information will hopefully remedy that problem.