OR Bar Evidence 2 — Questions and Answers
Question 1: A witness at trial testifies that immediately after a car crash she heard the driver yell, 'I ran the red light!' The driver objects on hearsay grounds. How should the court rule?
- Sustained; the statement is inadmissible hearsay
- Overruled; the statement qualifies as an excited utterance (Correct answer)
- Overruled; the statement is a party admission only if the witness is the opposing party
- Sustained; spontaneous statements about fault are excluded under OEC 407
Correct answer: Overruled; the statement qualifies as an excited utterance
An excited utterance is a statement relating to a startling event made while the declarant was under the stress of excitement, and it qualifies as a hearsay exception under OEC 803(2).
Question 2: A hospital's computerized billing records are offered to show the dates a patient was treated. The records were created in the regular course of business. Which hearsay exception applies?
- Present sense impression
- Business records exception (Correct answer)
- Public records exception
- Recorded recollection
Correct answer: Business records exception
Business records made at or near the time of the event by a person with knowledge, kept in the regular course of business, are admissible under OEC 803(6).
Question 3: A client tells her attorney that she hid the murder weapon in her garage. At trial, the prosecution subpoenas the attorney to testify about this communication. The attorney refuses. What privilege applies?
- Work-product doctrine
- Attorney-client privilege (Correct answer)
- Spousal communications privilege
- Fifth Amendment privilege against self-incrimination
Correct answer: Attorney-client privilege
Confidential communications between an attorney and client made for the purpose of seeking legal advice are protected by the attorney-client privilege.
Question 4: A shooting victim, believing she is about to die, tells a bystander, 'Jake shot me.' She then recovers and refuses to testify. The prosecution offers the out-of-court statement. Which exception best applies?
- Excited utterance, because she was under stress
- Dying declaration, if the declarant believed death was imminent (Correct answer)
- Former testimony, because she is unavailable
- Present sense impression, because it described a current condition
Correct answer: Dying declaration, if the declarant believed death was imminent
A dying declaration requires that the declarant believed death was imminent when making the statement; the declarant need not actually die for the exception to apply in civil cases, though Oregon limits it to homicide and civil proceedings.
Question 5: During a drug conspiracy trial, a co-conspirator's recorded phone call stating 'We're delivering the package Tuesday' is offered against the defendant. The statement was made during and in furtherance of the conspiracy. The defendant objects on hearsay grounds. The court should:
- Sustain the objection; co-conspirator statements require corroboration
- Overrule; co-conspirator statements made in furtherance of the conspiracy are not hearsay (Correct answer)
- Overrule; the statement qualifies as a business record
- Sustain; recorded calls are excluded under the best evidence rule
Correct answer: Overrule; co-conspirator statements made in furtherance of the conspiracy are not hearsay
Under OEC 801(4)(b)(E), a statement by a co-conspirator made during and in furtherance of the conspiracy is an admission by a party-opponent and is not hearsay.
Question 6: A witness testifies that she cannot remember the details of the accident she witnessed. The proponent shows her a statement she signed one week after the accident, which refreshes no memory. The proponent seeks to admit the signed statement itself. The proper basis is:
- Present recollection refreshed under OEC 612
- Past recollection recorded under OEC 803(5) (Correct answer)
- Recorded recollection as a business record
- The statement is inadmissible because the witness is available
Correct answer: Past recollection recorded under OEC 803(5)
Past recollection recorded is a hearsay exception for a memorandum made when events were fresh in the witness's memory that the witness now cannot recall sufficiently.
Question 7: An Oregon physician is called to testify about communications made by a patient during treatment. The patient objects. Oregon law provides that:
- No physician-patient privilege exists in Oregon state court proceedings
- The patient holds a physician-patient privilege for confidential communications during treatment (Correct answer)
- The privilege belongs to the physician, not the patient
- The privilege only applies in federal court under FRE 501
Correct answer: The patient holds a physician-patient privilege for confidential communications during treatment
Oregon recognizes a physician-patient privilege under OEC 504, which belongs to the patient and protects confidential communications made during the professional relationship.
OR Bar Evidence 2
A witness at trial testifies that immediately after a car crash she heard the driver yell, 'I ran the red light!' The driver objects on hearsay grounds.
How should the court rule?