Evidence Code

ORS 40.125
Rule 309. Presumptions in criminal proceedings


The judge is not authorized to direct the jury to find a presumed fact against the accused.


When the presumed fact establishes guilt or is an element of the offense or negates a defense, the judge may submit the question of guilt or the existence of the presumed fact to the jury only if:


A reasonable juror on the evidence as a whole could find that the facts giving rise to the presumed fact have been established beyond a reasonable doubt; and


The presumed fact follows more likely than not from the facts giving rise to the presumed fact. [1981 c.892 §18]

(Rule 309)

Notes of Decisions

An instruction that could give the jury impression that, in absence of evidence from defendant an element of the charge is to be presumed from proof of different facts, violates this rule because it does not make clear to the jury that finding the presumed fact is merely an inference that it is permitted to draw. State v. Nossaman, 63 Or App 789, 666 P2d 1351 (1983)

Jury instruction requiring inference in prosecution for negotiating bad check that if defendant did not make good on check within ten days after receiving notice of refusal that he had knowledge at time check was drawn that it would be dishonored was improper instruction permitting jury to make presumption as to element of crime and was reversible error. State v. Short, 88 Or App 567, 746 P2d 742 (1987)

Trial court may not instruct jury that it may infer firearm was loaded from fact that defendant pointed firearm at another. State v. Campbell, 100 Or App 153, 785 P2d 370 (1990), Sup Ct review denied

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Notes of Decisions

General rule is that polygraph evidence is inadmissible in proceeding governed by Oregon Evidence Code. State v. Brown, 297 Or 404, 687 P2d 751 (1984)

Party could introduce results of polygraph test taken by spouse for purpose of showing that response of party upon learning polygraph results was reasonable. Fromdahl and Fromdahl, 314 Or 496, 840 P2d 683 (1992)

Where state law completely precludes reliable, materially exculpatory evidence, exclusion of that evidence violates Due Process Clauses of United States Constitution. State v. Cazares-Mendez, 233 Or App 310, 227 P3d 172 (2010), aff'd State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491, 256 P3d 104 (2011)

Oregon Evidence Code articulates minimum standards of reliability that apply to many types of evidence for admissibility, including eyewitness identification evidence, and parties must employ code to address admissibility of eyewitness testimony. State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012)

Law Review Citations

59 OLR 43 (1980); 19 WLR 343 (1983)

Chapter 40

Evidence Code

Annotations are listed under the heading "Under former similar statute" if they predate the adoption of the Evidence Code, which went into effect January 1, 1982.


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Jun. 26, 2021