Oregon Evidence Code—A Brief History

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.

Photo of the Oregon State Capitol building reflecting in a large pool.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.


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.

Making the Most of BarBooks Notes

The BarBooks™ online library provides Oregon State Bar members, law students, and libraries with a wealth of information. It comprises 48 legal treatises, most of which are published by the OSB Legal Publications Department in conjunction with a myriad of volunteer authors and editorial review boards.

We can revise our treatises only as often as Bar staff resources allow. However, the new BarBooks platform has given us a tool to provide more frequent updates to our books: the Notes feature.

Have you ever noticed the Notes tab with a number next to it, but didn’t click on it? Well, that’s where the Notes live. There are two kinds of notes: Public Notes and Private Notes.

Graphic shows 213 Notes in the Torts book

Public Notes

OSB Legal Publications uses Public Notes to provide more frequent updates. We began Shepardizing statutory citations in our books shortly before the new platform launched in June 2022. We have been working our way through the books ever since and are close to completing this initial pass, creating Public Notes to alert readers to statutory changes that have occurred since each book was published.

All of the Public Notes we create include the notation “OSB Legal Pubs Note” so that you know they were created by someone on the OSB Legal Pubs team.

Each Public Note is connected to highlighted text within the book. If you see highlighted text in a book, click on it and the Notes tab will open with the connected Public Note at the top of the page.

This is what a Public Note looks like:

Graphic shows a sample OSB Legal Pubs Note that is public

Private Notes

Graphic shows the pop-up Add a Note menu that appears when text is highlighted in BarBooks. To create your own Private Notes, which no one but you can see, highlight text that you want to connect a Note to. A menu of three icons will pop up.

Click the first icon to select the highlighting color for that text. A Note will be created that you can then edit.

Click the second icon to open the Note creation and editing box without selecting a highlighting color.

Click the third icon to turn the highlighted text into a hyperlink (only for you). A Note will be created that you can then edit.

This is what the Note creation and editing box looks like:

Graphic shows formatting tools and other features of the dialog box to create and edit a note in BarBooks

Because your Private Notes may be in the same book with a number of Public Notes, a best practice is to include some type of identifying information in all of your Private Notes so that you can easily find them again without scrolling through an entire list of mingled Notes. For example, you could include your initials and a client code. If you already have Notes but didn’t do this, you can still add the tags. Click on any Note you have created, and you will see the Edit and Remove buttons. Simply click on Edit to add an appropriate tag.

Graphic is a Private Note with an example of tagging, in this case with LK Note, Jones113

Searching Notes

You can search Public and Private Notes from within a book using the Search box at the top of the Notes tab. For example, I tagged a Private Note with “LK Note,” and when I search for that term a list of 213 Notes is shortened to a list of one.

Graphic is an example of searching notes within a book to find Private Notes with tag

From the homepage of BarBooks, you can search for Notes in all books at once. This is particularly helpful if you have created Private Notes in multiple books and need to find them all. If you have tagged them, it’s easy to do. Simply insert your tag in the main search box, uncheck documents and check notes, and hit enter. In this example, I found seven Notes with the tag “LK Note” in four books. To view the Notes in one of those books, simply click on the book.

Graphic shows how to search for notes across all books from BarBooks homepage

Both search features search only the text within the Note itself, not the highlighted and connected text from the book.

Loading Speed

If you are familiar with Notes and have created or accessed them, you may have noticed that the Notes tab is slow to load and new Notes are slow to save, especially when there are a lot of Notes in a book. We are aware of this issue, and the provider of the platform is working on a solution, which they hope to deploy soon. We appreciate your patience.

If you are creating notes, our research editor discovered a work-around. If you populate the Notes search field with a dummy search, something that is not likely to appear in any of the Notes, creating new Notes works with no delays. I tried this by searching for the letter “z” and it worked great.

Notes and New Editions of Books

 When a new edition of a book is published on BarBooks, we will need to remove the older edition. If you have Private Notes connected to the older edition, they will not be transferred to the new edition. When we delete the old edition, all Notes will disappear and cannot be recovered.

However, we will always try to give you enough notice to save your Private Notes before the book is deleted. If you have tagged your Notes, as suggested above, you can search for all of your Notes and print them. If you have a PDF creator as a printer option, you can save them as a PDF instead of printing a hard copy.

Important Updates to Criminal Jury Instructions

The 2022 supplement to the Uniform Criminal Jury Instructions is now available for preorder. The Uniform Criminal Jury Instructions Committee had its work cut out for it in 2022, resulting in 35 amended instructions and two new instructions. Culpable mental states and delivery of controlled substances were just two of the topics the Committee tackled in response to appellate case law. Legal Publications Attorney Editor Dean Land, who is OSB’s liaison to the Committee, has provided the following insight into the Committee’s work. Continue reading

BarBooks by the Numbers

BarBooks graphic of tablet screen and books.The BarBooks™ online library is one of the highest rated member benefits that the Oregon State Bar offers to its membership. Members can also purchase subscriptions for their support staff. Continue reading

BarBooks Webinar

We relaunched the BarBooks™ online library on a new platform on June 8, 2022. Many members and subscribers dived right in and started using the new platform without any trouble. Others have struggled to navigate the change. Whether you fall in the first category, the second category, or somewhere in between, the BarBooks Ins and Outs webinar scheduled for November 30, noon to 1:00 p.m. will help you make the most of your BarBooks research experience. Continue reading

Stops and Frisks in Oregon

The 2022 revision of Criminal Law in Oregon is scheduled to release in December. The chapter on Stop and Frisk is written by Laura Fine and excerpted here. The chapter will be as up-to-date as possible upon publication, including caveats and note regarding legislation that become effective after it is in print. This excerpt includes links to the public pages of the Fastcase online database.

To read the full chapter, log into the BarBooks™ online library or preorder a copy of the print publication or eBook download from our online bookstore. Continue reading

Legal Websites on Criminal Law

In preparation for the upcoming release of the 2022 revision of Criminal Law in Oregon, we decided to share a few blogs and websites related to criminal law matters. These sites were gleaned from chapters of the new revision and a basic Google search for criminal law blogs. We do not guarantee the accuracy of the information contained in these sites, which can change over time. Many of these links and more are included in the new edition of Criminal Law in Oregon. Continue reading

Legal Opinion Practice in Real Estate Transactions

Following the recommendation of the Committee, the Executive Committee of the Real Estate and Land Use Section of the Oregon State Bar (“Executive Committee”) formally adopted the updated 2022 Oregon Model Opinion Report and the accompanying 2022 Oregon Model Opinion for use in Oregon secured real estate transactions on September 16, 2022. Continue reading

Statutory Updates to PIP and UIM Insurance

The OSB Legal Publication Torts was last revised in 2012. A new revision is in the early planning stages, but in the meantime the Legal Publications team has provided statutory updates using the new Public Notes feature that is part of the new BarBooks™ online library platform.

This post highlights two areas related to automobile insurance. To view the complete list of notes updating these and other chapters of Torts, visit the BarBooks online library. Continue reading

Lawyers and Mental Health Professionals in Criminal Law Cases

The 2022 revision of Criminal Law in Oregon is scheduled to release in December. It will be available for preorder soon, in both print and digital formats. This revision contains up-to-date case law and statutory changes that have happened since the 2013 revision was released. We are excited to be offering this new edition in a durable, convenient, and accessible perfect bound format.

The chapter on Mental Illness and Incapacity, authored by Laura Graser, Elizabeth N. Wakefield, and Harris S. Matarazzo, addresses the issue of working with mental health professionals. This post is an excerpt from that chapter, which also covers the guilty except for insanity defense,  Psychiatric Security Review Board (PSRB) jurisdiction, civil commitment proceedings, and sex-offender classification. The full chapter is available on the BarBooks online library and will be available as an eBook in December. Continue reading