ORS 40.465
Rule 804. Hearsay exceptions when the declarant is unavailable


“Unavailability as a witness” includes situations in which the declarant:


Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of a statement;


Persists in refusing to testify concerning the subject matter of a statement despite an order of the court to do so;


Testifies to a lack of memory of the subject matter of a statement;


Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or


Is absent from the hearing and the proponent of the declarant’s statement has been unable to procure the declarant’s attendance (or in the case of an exception under subsection (3)(b), (c) or (d) of this section, the declarant’s attendance or testimony) by process or other reasonable means.


A declarant is not unavailable as a witness if the declarant’s exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant’s statement for the purpose of preventing the witness from attending or testifying.


The following are not excluded by ORS 40.455 (Rule 802. Hearsay rule) if the declarant is unavailable as a witness:


Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.


A statement made by a declarant while believing that death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.


A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.


Intentionally left blank —Ed.


A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood or adoption or marriage, ancestry, or other similar fact of personal or family history, even though the declarant had no means of acquiring personal knowledge of the matter stated; or


A statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared.


A statement made at or near the time of the transaction by a person in a position to know the facts stated therein, acting in the person’s professional capacity and in the ordinary course of professional conduct.


A statement offered against a party who intentionally or knowingly engaged in criminal conduct that directly caused the death of the declarant, or directly caused the declarant to become unavailable as a witness because of incapacity or incompetence.


A statement offered against a party who engaged in, directed or otherwise participated in wrongful conduct that was intended to cause the declarant to be unavailable as a witness, and did cause the declarant to be unavailable.


A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of the Oregon Evidence Code and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this paragraph unless the proponent of it makes known to the adverse party the intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing, or as soon as practicable after it becomes apparent that the statement is probative of the issues at hand, to provide the adverse party with a fair opportunity to prepare to meet it.


For purposes of subsection (3)(f) and (g) of this section, the proponent of a statement is not required to issue a material witness order, as defined in ORS 136.608 (Application procedure), or seek sanctions for contempt in order to show the unavailability of the declarant under subsection (1)(e) of this section. [1981 c.892 §65; 2005 c.458 §1; 2021 c.324 §1]

Source: Section 40.465 — Rule 804. Hearsay exceptions when the declarant is unavailable, https://www.­oregonlegislature.­gov/bills_laws/ors/ors040.­html.

See also annotations under ORS 41.830, 41.840, 41.850, 41.860, 41.870, 41.890 and 41.900 in permanent edition.

Notes of Decisions

Under former similar statutes

Statement made in professional capacity (ORS 41.860)

Records made in professional capacity in ordinary course of professional conduct were admissible even though they included statements of opinion. Williams v. Laurence-David, Inc., 271 Or 712, 534 P2d 173 (1975)

Court does not have discretion regarding admissibility of record qualifying under exception for records of professional. Williams v. Laurence-David, Inc., 271 Or 712, 534 P2d 173 (1975)

Former testimony (ORS 41.900)

Where absent witness is party to action, admission of former testimony requires showing of necessity that witness cannot personally appear. Rogers v. Donovan, 268 Or 24, 518 P2d 1306 (1974)

In criminal trial, testimony given by absent declarant as witness at another hearing is not admissible unless prosecution has made substantial effort to procure attendance of declarant. State v. Smyth, 286 Or 293, 593 P2d 1166 (1979)

Under Evidence Code

Where prosecution’s key witness invoked Fifth Amendment privilege and refused to testify in retrial, testimony at first trial was admissible against defendant; witness was “unavailable” through no fault of prosecutor though plea agreement between witness and prosecutor only required witness’ testimony at first trial, not at subsequent retrials. State v. Brooks, 64 Or App 404, 668 P2d 466 (1983), Sup Ct review denied

Paragraph (3)(f), the residual exception, is available only if evidence is not admissible under any other exception; where eight year old child testified that she did not remember telling psychologist or case worker about sexual contact with respondent, testimony of psychologist and case worker narrating in detail substance of child’s complaint to them was not admissible because of specific hearsay exception for evidence of complaint of sexual misconduct under ORS 40.460 (Rule 803). State ex rel Children’s Services Division v. Page, 66 Or App 535, 674 P2d 1196 (1984)

Where dying victim was unable to speak, evidence was sufficient for trial court to conclude that victim understood questions of sheriff’s department officer and was able to communicate by employing hand signal system used between officer and victim. State v. Holterman, 69 Or App 509, 687 P2d 1097 (1984), Sup Ct review denied

In prosecution for sexual assault of child, victim’s statements to her mother were admissible hearsay under residual exception, paragraph (3)(f), where declarant was incompetent to testify and statements were made in circumstances guaranteeing trustworthiness. State v. Bounds, 71 Or App 744, 694 P2d 566 (1984), Sup Ct review denied

Where defendant was charged with assault, victim testified that she could not remember any physical contact between herself and defendant and police officer testified about statements victim had made to him, statements were not admissible under residual exceptions to hearsay rule because they lacked sufficient guarantee of trustworthiness. State v. Apperson, 85 Or App 429, 736 P2d 1026 (1987)

Where defendant availed self of opportunity to cross-examine witness at preliminary hearing and motives for development of testimony at hearing were similar to that at trial and witness was “unavailable” within meaning of this section, trial court did not err in admitting in evidence testimony at preliminary hearing of witness who was absent from trial. State v. Montgomery, 88 Or App 163, 744 P2d 592 (1987), Sup Ct review denied

Where nothing in text of ORS 40.460 limits rule’s application to prior testimony given in same criminal prosecution and rule does not require mutuality of parties, transcripts from criminal prosecutions in another state based upon different criminal conduct were admissible. State v. Moen, 309 Or 45, 786 P2d 111 (1990)

Where defendant had opportunity at security release hearing and motive to develop testimony similar to motive at trial, witnesses’ testimony during security release hearing was admissible at defendant’s trial. State v. Douglas, 310 Or 438, 800 P2d 288 (1990)

Wife’s out-of-court statement that she had seen defendant driving and thought he was intoxicated was not admissible under hearsay exception for statements against pecuniary interest. State v. Lyman, 107 Or App 390, 812 P2d 23 (1991)

Trial court did not err in admitting uncorroborated hearsay evidence of confession since corroboration is required only of exculpatory statements. State v. Tucker, 109 Or App 519, 820 P2d 834 (1991), Sup Ct review denied

Trial court properly ruled that witness was not available to testify where there was testimony that witness had no long-term memory to speak of, was unable to travel because of physical and mental health and hospital records reflected moderate impairment of gross memory abilities. State v. Pinnell, 311 Or 98, 806 P2d 110 (1991)

Where prosecutor informed trial court that state had prepared “transport order” from state prison for potential witness and defendant offered no evidence witness would testify to lack of memory or claim privilege against self-incrimination, defendant failed to show that witness was “unavailable” for purpose of introducing witness’ statements under this section. State v. Thoma, 313 Or 268, 834 P2d 1020 (1992)

Deposition testimony of witness unavailable to subpoena is admissible under ORS 45.250 without showing that offering party sought voluntary return of witness per this section. Hansen v. Abrasive Engineering and Manufacturing, 317 Or 378, 856 P2d 625 (1993)

Refusal of witness to testify based on Fifth Amendment right against self-incrimination did not mean that witness’s prior out-of-court statements on same matter were statements against penal interest. State v. Jacob, 125 Or App 643, 866 P2d 507 (1994), Sup Ct review denied

Unavailability of witness must be established by means sanctioned by law for introduction of judicial evidence. State v. Ordonez-Villanueva, 138 Or App 236, 908 P2d 333 (1995), Sup Ct review denied

In determining that statement against penal interest by hearsay declarant had sufficient indicia of reliability to be admissible, factors considered were: 1) whether declarant was pressured to make statement; 2) timing of statement; 3) to whom statement was addressed; 4) purpose of making statement; and 5) statement content. State v. Wilson, 323 Or 498, 918 P2d 826 (1996)

In determining whether statement by hearsay declarant is admissible as statement against penal interest, statement must be prima facie inculpatory and circumstantially reliable. State v. Jones, 171 Or App 375, 15 P3d 616 (2000), Sup Ct review denied

On de novo review, hearsay testimony to which no objection was made at trial may be considered by reviewing court for any weight testimony may have. Petersen v. Crook County, 172 Or App 44, 17 P3d 563 (2001)

Circumstances indicating “trustworthiness” of statement against penal interest means both circumstances indicating statement was actually made and circumstances indicating truth of statement. State v. Lytsell, 187 Or App 169, 67 P3d 955 (2003)

Where witness testifies in court that contents of written statement by witness are truthful, testimony is sufficient to make contents of statement part of evidentiary record for purpose of appellate review. Lowrance v. Trow, 225 Or App 250, 200 P3d 637 (2009)

Exclusion of hearsay on basis that declarant is available as witness violates Due Process Clause of United States Constitution where (1) hearsay constitutes reliable, materially exculpatory evidence, (2) profferer of hearsay establishes that hearsay subjects declarant to criminal liability and (3) corroborating circumstances clearly indicate hearsay’s trustworthiness. 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)

For testimony to be admissible, wrongful conduct that is intended to cause declarant to be unavailable does not need to be for sole or primary purpose of causing witness to be unavailable. State v. Supanchick, 245 Or App 651, 263 P3d 378 (2011), aff’dState v. Supanchick, 354 Or 737, 323 P3d 231 (2014)

Confrontation Clause of federal Constitution does not require wrongful conduct that causes declarant to be unavailable as witness to be for sole or primary purpose of causing witness to be unavailable. State v. Supanchick, 245 Or App 651, 263 P3d 378 (2011), aff’d State v. Supanchick, 354 Or 737, 323 P3d 231 (2014)

Admissibility of testimony of declarant who is unavailable as witness because of wrongful conduct causes declarant to be unavailable is firmly rooted and does not need particularized guarantee of trustworthiness. State v. Supanchick, 245 Or App 651, 263 P3d 378 (2011), aff’d State v. Supanchick, 354 Or 737, 323 P3d 231 (2014)

When determining trustworthiness of hearsay statement not specifically covered by statute, trial courts should not consider credibility of witness who provides corroborating testimony. State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491, 256 P3d 104 (2011)

As used in this section, “by process” requires proponent of declarant’s statement to have served declarant with subpoena but does not refer to more intrusive forms of process such as material witness subpoena or remedial contempt order, which may, nonetheless, still be required under totality of circumstances to show unavailability by “other reasonable means.” State v. Iseli, 366 Or 151, 458 P3d 653 (2020)

Totality of circumstances encompasses wide range of factors that guide extent to which other means are reasonable for proponent to pursue in efforts to procure declarant’s attendance, including: 1) proponent’s efforts to procure declarant’s attendance beyond service of subpoena; 2) resources available to proponent; 3) available options not pursued; 4) any limit on proponent’s efforts; 5) likelihood that additional efforts would procure attendance; 6) importance of declarant’s testimony; and 7) cost of procuring declarant and stakes of case. State v. Iseli, 366 Or 151, 458 P3d 653 (2020)

In assessing what other reasonable means should be pursued to procure attendance, trial court shall consider, in addition to wide range of factors, facts related to declarant’s reluctance or nonattendance and extent wrongful conduct by another may have caused nonattendance. State v. Iseli, 366 Or 151, 458 P3d 653 (2020)

State was required to use “other reasonable means” to procure witness, who may have simply wanted to avoid making multiple court appearances, when witness’s testimony was critical to criminal prosecution. State v. Cecconi, 308 Or App 534, 480 P3d 953 (2021)

Rule 100. Short title
Rule 101. Applicability of Oregon Evidence Code
Rule 102. Purpose and construction
Rule 103. Rulings on evidence
Rule 104. Preliminary questions
Rule 105. Limited admissibility
Rule 106. When part of transaction proved, whole admissible
Rule 201(a). Scope
Rule 201(b). Kinds of facts
Rules 201(c) and 201(d). When mandatory or discretionary
Rule 201(e). Opportunity to be heard
Rule 201(f). Time of taking notice
Rule 201(g). Instructing the jury
Rule 202. Law that is judicially noticed
Rule 305. Allocation of the burden of persuasion
Rule 306. Instructions on the burden of persuasion
Rule 307. Allocation of the burden of producing evidence
Rule 308. Presumptions in civil proceedings
Rule 309. Presumptions in criminal proceedings
Rule 310. Conflicting presumptions
Rule 311. Presumptions
Rule 401. Definition of “relevant evidence.”
Rule 402. Relevant evidence generally admissible
Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion or undue delay
Rule 404. Character evidence
Rule 404-1. Pattern, practice or history of abuse
Rule 405. Methods of proving character
Rule 406. Habit
Rule 407. Subsequent remedial measures
Rule 408. Compromise and offers to compromise
Rule 409. Payment of medical and similar expenses
Rule 410. Withdrawn plea or statement not admissible
Rule 411. Liability insurance
Rule 412. Sex offense cases
Rule 412-1. Evidence not admissible in civil proceeding involving sexual misconduct
Rule 413. Measures and assessments intended to minimize impact of or plan for natural disaster
Rule 503. Lawyer-client privilege
Rule 503-1. Right of client to communicate with lawyer
Rule 504. Psychotherapist-patient privilege
Rule 504-1. Physician-patient privilege
Rule 504-2. Nurse-patient privilege
Rule 504-3. School employee-student privilege
Rule 504-4. Regulated social worker-client privilege
Rule 504-5. Communications revealing intent to commit certain crimes
Rule 505. Spousal privilege
Rule 506. Member of clergy-penitent privilege
Rule 507. Counselor-client privilege
Rule 507-1. Certified advocate-victim privilege
Rule 508a. Stenographer-employer privilege
Rule 509. Public officer privilege
Rule 509-1. Sign language interpreter privilege
Rule 509-2. Non-English-speaking person-interpreter privilege
Rule 509-3. Legislative branch offsite process counselor privilege
Rule 510. Identity of informer
Rule 511. Waiver of privilege by voluntary disclosure
Rule 512. Privileged matter disclosed under compulsion or without opportunity to claim privilege
Rule 513. Comment upon or inference from claim of privilege
Rule 514. Effect on existing privileges
Rule 601. General rule of competency
Rule 602. Lack of personal knowledge
Rule 603. Oath or affirmation
Rule 604. Interpreters
Rule 605. Competency of judge as witness
Rule 606. Competency of juror as witness
Rule 607. Who may impeach
Rule 608. Evidence of character and conduct of witness
Rule 609. Impeachment by evidence of conviction of crime
Rule 609-1. Impeachment for bias or interest
Rule 610. Religious beliefs or opinions
Rule 611. Mode and order of interrogation and presentation
Rule 612. Writing used to refresh memory
Rule 613. Prior statements of witnesses
Rule 615. Exclusion of witnesses
Rule 701. Opinion testimony by lay witnesses
Rule 702. Testimony by experts
Rule 703. Bases of opinion testimony by experts
Rule 704. Opinion on ultimate issue
Rule 705. Disclosure of fact or data underlying expert opinion
Rule 706. Impeachment of expert witness by learned treatise
Rule 801. Definitions for ORS 40.450 to 40.475
Rule 802. Hearsay rule
Rule 803. Hearsay exceptions
Rule 804. Hearsay exceptions when the declarant is unavailable
Rule 805. Hearsay within hearsay
Rule 806. Attacking and supporting credibility of declarant
Rule 901. Requirement of authentication or identification
Rule 902. Self-authentication
Rule 903. Subscribing witness’ testimony unnecessary
Rule 1001. Definitions for ORS 40.550 to 40.585
Rule 1002. Requirement of original
Rule 1003. Admissibility of duplicates
Rule 1003-1. Admissibility of reproduction
Rule 1004. Admissibility of other evidence of contents
Rule 1005. Public records
Rule 1006. Summaries
Rule 1007. Testimony or written admission of party
Rule 1008. Functions of court and jury
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