ORS 40.240 Rule 504-2

Nurse-patient privilege. A licensed professional nurse shall not, without the consent of a patient who was cared for by such nurse, be examined in a civil action or proceeding, as to any information acquired in caring for the patient, which was necessary to enable the nurse to care for the patient. [1981 c.892 §33b] 40.245 Rule 504-3. School employee-student privilege. (1) A certificated staff member of an elementary or secondary school may not be examined in any civil action or proceeding as to any conversation between the certificated staff member and a student that relates to the personal affairs of the student or family of the student, and that if disclosed would tend to damage or incriminate the student or family. Any violation of the privilege provided by this subsection may result in the suspension of certification of the professional staff member as provided in ORS 342.175, 342.177 and 342.180.

A licensed school counselor regularly employed and designated in that capacity by a public school may not, without the consent of the student, be examined as to any communication made by the student to the counselor in the official capacity of the counselor in any civil action or proceeding or a criminal action or proceeding in which the student is a party concerning the past use, abuse or sale of drugs, controlled substances or alcoholic liquor. Any violation of the privilege provided by this subsection may result in the suspension of the license of the professional school counselor as provided in ORS 342.175, 342.177 and 342.180. However, in the event that the student’s condition presents a clear and imminent danger to the student or to others, the counselor shall report this fact to an appropriate responsible authority or take other emergency measures that the situation demands. [1981 c.892 §33c; 2021 c.97 §6] 40.250 Rule 504-4. Regulated social worker-client privilege. A regulated social worker under ORS 675.510 to 675.600 may not be examined in a civil or criminal court proceeding as to any communication given the regulated social worker by a client in the course of noninvestigatory professional activity when the communication was given to enable the regulated social worker to aid the client, except when:

The client or a person legally responsible for the client’s affairs gives consent to the disclosure;

The client initiates legal action or makes a complaint against the regulated social worker to the State Board of Licensed Social Workers;

The communication reveals a clear intent to commit a crime that reasonably is expected to result in physical injury to a person;

The communication reveals that a minor was the victim of a crime, abuse or neglect; or

The regulated social worker is a public employee and the public employer has determined that examination in a civil or criminal court proceeding is necessary in the performance of the duty of the regulated social worker as a public employee. [1981 c.892 §33d; 1989 c.721 §46; 2009 c.442 §28] 40.252 Rule 504-5. Communications revealing intent to commit certain crimes.

In addition to any other limitations on privilege that may be imposed by law, there is no privilege under ORS 40.225, 40.230,

40.250, 40.264 or 40.274 for communications if:

In the professional judgment of the person receiving the communications, the communications reveal that the declarant has a clear and serious intent at the time the communications are made to subsequently commit a crime involving physical injury, a threat to the physical safety of any person, sexual abuse or death or involving an act described in ORS 167.322;

In the professional judgment of the person receiving the communications, the declarant poses a danger of committing the crime; and

The person receiving the communications makes a report to another person based on the communications.

The provisions of this section do not create a duty to report any communication to any person.

A person who discloses a communication described in subsection (1) of this section, or fails to disclose a communication described in subsection (1) of this section, is not liable to any other person in a civil action for any damage or injury arising out of the disclosure or failure to disclose. [2001 c.640 §2; 2007 c.731 §4; 2015 c.265 §3; 2019 c.604 §18]

40.225 to 40.295 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation. 40.255 Rule 505. Spousal privilege. (1) As used in this section, unless the context requires otherwise:

“Confidential communication” means a communication by a spouse to the other spouse and not intended to be disclosed to any other person.

“Marriage” means a marital relationship between two individuals, legally recognized under the laws of this state.

“Spouse” means an individual in a marriage with another individual.

In any civil or criminal action, a spouse has a privilege to refuse to disclose and to prevent the other spouse from disclosing any confidential communication made by one spouse to the other during the marriage. The privilege created by this subsection may be claimed by either spouse. The authority of the spouse to claim the privilege and the claiming of the privilege is presumed in the absence of evidence to the contrary.

In any criminal proceeding, neither spouse, during the marriage, shall be examined adversely against the other as to any other matter occurring during the marriage unless the spouse called as a witness consents to testify.

There is no privilege under this section:

In all criminal actions in which one spouse is charged with bigamy or with an offense or attempted offense against the person or property of the other spouse or of a child of either, or with an offense against the person or property of a third person committed in the course of committing or attempting to commit an offense against the other spouse;

As to matters occurring prior to the marriage; or

In any civil action where the spouses are adverse parties. [1981 c.892 §34; 1983 c.433 §1; 2016 c.46 §1] 40.260 Rule 506. Member of clergy-penitent privilege. (1) As used in this section, unless the context requires otherwise:

“Confidential communication” means a communication made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

“Member of the clergy” means a minister of any church, religious denomination or organization or accredited Christian Science practitioner who in the course of the discipline or practice of that church, denomination or organization is authorized or accustomed to hearing confidential communications and, under the discipline or tenets of that church, denomination or organization, has a duty to keep such communications secret.

A member of the clergy may not be examined as to any confidential communication made to the member of the clergy in the member’s professional character unless consent to the disclosure of the confidential communication is given by the person who made the communication.

Even though the person who made the communication has given consent to the disclosure, a member of the clergy may not be examined as to any confidential communication made to the member in the member’s professional character if, under the discipline or tenets of the member’s church, denomination or organization, the member has an absolute duty to keep the communication confidential. [1981 c.892 §35; 1999 c.7 §1] 40.262 Rule 507. Counselor-client privilege. A professional counselor or a marriage and family therapist licensed by the Oregon Board of Licensed Professional Counselors and Therapists under ORS 675.715 shall not be examined in a civil or criminal court proceeding as to any communication given the counselor or therapist by a client in the course of a noninvestigatory professional activity when such communication was given

to enable the counselor or the therapist to aid the client, except:

When the client or those persons legally responsible for the affairs of the client give consent to the disclosure. If both parties to a marriage have obtained marital and family therapy by a licensed marital and family therapist or a licensed counselor, the therapist or counselor shall not be competent to testify in a domestic relations action other than child custody action concerning information acquired in the course of the therapeutic relationship unless both parties consent;

When the client initiates legal action or makes a complaint against the licensed professional counselor or licensed marriage and family therapist to the board;

When the communication reveals the intent to commit a crime or harmful act; or

When the communication reveals that a minor is or is suspected to be the victim of crime, abuse or neglect. [1989 c.721 §20]

40.010 to 40.585 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation. 40.264 Rule 507-1. Certified advocate-victim privilege. (1) As used in this section:

“Certified advocate” means a person who:

Has completed at least 40 hours of training in advocacy for victims of domestic violence, sexual assault or stalking, approved by the Attorney General by rule; and

Is an employee or a volunteer of a qualified victim services program.

“Confidential communication” means a written or oral communication that is not intended for further disclosure, except to:

Persons present at the time the communication is made who are present to further the interests of the victim in the course of seeking safety planning, counseling, support or advocacy services;

Persons reasonably necessary for the transmission of the communication; or

Other persons, in the context of group counseling.

“Qualified victim services program” means:

A nongovernmental, nonprofit, community-based program receiving moneys administered by the state Department of Human Services or the Oregon or United States Department of Justice, or a program administered by a tribal government, that offers safety planning, counseling, support or advocacy services to victims of domestic violence, sexual assault or stalking; or

A sexual assault center, victim advocacy office, women’s center, student affairs center, health center or other program providing safety planning, counseling, support or advocacy services to victims that is on the campus of or affiliated with a two- or four-year post-secondary institution that enrolls one or more students who receive an Oregon Opportunity Grant.

“Victim” means a person seeking safety planning, counseling, support or advocacy services related to domestic violence, sexual assault or stalking at a qualified victim services program.

Except as provided in subsection (3) of this section, a victim has a privilege to refuse to disclose and to prevent any other person from disclosing:

Confidential communications made by the victim to a certified advocate in the course of safety planning, counseling, support or advocacy services.

Records that are created or maintained in the course of providing services regarding the victim.

The privilege established by this section does not apply to the disclosure of confidential communications, only to the extent disclosure is necessary for defense, in any civil, criminal or administrative action that is brought against the certified advocate, or against the qualified victim services program, by or on behalf of the victim.

The privilege established in this section is not waived by disclosure of the communications by the certified advocate to another person if the disclosure is reasonably necessary to accomplish the purpose for which the certified advocate is consulted.

This section does not prohibit the disclosure of aggregate, nonpersonally identifying data.

This section applies to civil, criminal and administrative proceedings and to institutional disciplinary proceedings at a two-year or four-year post-secondary institution that enrolls one or more students who receive an Oregon Opportunity Grant. [2015 c.265 §2; 2017 c.256 §1]

40.225 to 40.295 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation. 40.265 Rule 508a. Stenographer-employer privilege. A stenographer shall not, without the consent of the stenographer’s employer, be examined as to any communication or dictation made by the employer to the stenographer in the course of professional employment. [1981 c.892 §36]

40.270 Rule 509. Public officer privilege. A public officer shall not be examined as to public records determined to be exempt from disclosure under ORS 192.338, 192.345 and 192.355. [1981 c.892 §37] 40.272 Rule 509-1. Sign language interpreter privilege. (1) As used in this section:

“Person with a disability” means a person who cannot readily understand or communicate the spoken English language, or cannot understand proceedings in which the person is involved, because of deafness or because of a physical hearing impairment or cannot communicate in the proceedings because of a physical speaking impairment.

“Sign language interpreter” or “interpreter” means a person who translates conversations or other communications for a person with a disability or translates the statements of a person with a disability.

A person with a disability has a privilege to refuse to disclose and to prevent a sign language interpreter from disclosing any communications to which the person with a disability was a party that were made while the interpreter was providing interpretation services for the person with a disability. The privilege created by this section extends only to those communications between a person with a disability and another, and translated by the interpreter, that would otherwise be privileged under ORS 40.225 to 40.295. [1993 c.179 §2; 2007 c.70 §11]

40.225 to 40.295 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation. 40.273 Rule 509-2. Non-English-speaking person-interpreter privilege. (1) As used in this section:

“Interpreter” means a person who translates conversations or other communications for a non-English-speaking person or translates the statements of a non- English-speaking person.

“Non-English-speaking person” means a person who, by reason of place of birth or culture, speaks a language other than English and does not speak English with adequate ability to communicate in the proceedings.

A non-English-speaking person has a privilege to refuse to disclose and to prevent an interpreter from disclosing any communications to which the non-English-speaking person was a party that were made while the interpreter was providing interpretation services for the non-English-speaking person. The privilege created by this section extends only to those communications between a non-English-speaking person and another, and translated by the interpreter, that would otherwise be privileged under ORS 40.225 to 40.295. [1993 c.179 §3]

Assembly but was not added to or made a part of ORS chapter 40 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation. 40.274 Rule 509-3. Legislative branch offsite process counselor privilege. (1) As used in this section:

“Confidential communication” means a communication between an offsite process counselor and an individual reporting information or seeking consultative services from the offsite process counselor.

“Harassment” has the meaning given that term in legislative branch personnel rules that establish a standard of conduct that applies to legislators, legislative staff or executive or judicial branch staff that regularly are present in the State Capitol or regularly interact with the legislative branch, lobbyists who are required to be registered under ORS 171.740, or contractors, including employees of contractors, who regularly perform services in the State Capitol. “Harassment” includes conduct that constitutes sexual harassment or retaliation as those terms are used in the legislative branch personnel rules that address harassment. “Harassment” includes discrimination in a place of public accommodation.

“Legislative branch” means the legislative department, as defined in ORS 174.114.

“Offsite process counselor” means an offsite process counselor who meets the qualifications established under ORS 173.930

, who performs services under ORS 173.933 and who has completed at least 40 hours of training in advocacy for victims of domestic violence, sexual assault, stalking or workplace harassment, including harassment based on race, gender or disability, that has been approved by the Attorney General by rule.

A person who reports information to an offsite process counselor that concerns harassment that the person has experienced or witnessed has a privilege to refuse to disclose and to prevent any other person from disclosing:

Confidential communication made by the person to or received by the person from the offsite process counselor; and

Records that are created or maintained by the offsite process counselor in the course of the person reporting information that concerns harassment in the State Capitol.

A person who consults with an offsite process counselor for the purpose of understanding what options are available for reporting harassment or filing a harassment complaint has a privilege to refuse to disclose and to prevent any other person from disclosing:

Confidential communication made by the person to or received by the person from the offsite process counselor; and

Records that are created or maintained by the offsite process counselor in the course of providing counsel or services to the person.

This section does not prohibit the disclosure of:

Any information if the offsite process counselor reasonably believes that the disclosure is necessary to prevent immediate physical harm or other harm described in ORS 40.252; or

Nonpersonally identifying data.

This section applies to civil, criminal and administrative proceedings and to legislative branch disciplinary proceedings. [2019 c.604 §17]

40.225 to 40.295 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation. 40.275 Rule 510. Identity of informer.

As used in this section, “unit of government” means:

The federal government or any state or political subdivision thereof;

A university that has commissioned police officers under ORS 352.121 or 353.125; or

A tribal government as defined in ORS 181A.940, if the information referred to in this section relates to or assists in an investigation conducted by an authorized tribal police officer as defined in ORS 181A.940.

A unit of government has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.

The privilege created by this section may be claimed by an appropriate representative of the unit of government if the information was furnished to an officer thereof.

No privilege exists under this section:

If the identity of the informer or the informer’s interest in the subject matter of the communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer’s own action, or if the informer appears as a witness for the unit of government.

If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case or of a material issue on the merits in a civil case to which the unit of government is a party, and the unit of government invokes the privilege, and the judge gives the unit of government an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the judge may direct that testimony be taken if the judge finds that the matter cannot be resolved satisfactorily upon affidavit. If the judge finds that there is a reasonable probability that the informer can give the testimony, and the unit of government elects not to disclose identity of the informer, the judge on motion of the defendant in a criminal case shall dismiss the charges to which the testimony would relate, and the judge may do so on the judge’s own motion. In civil cases, the judge may make any order that justice requires. Evidence submitted to the judge shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the unit of government. All counsel and parties shall be permitted to be present at every stage of proceedings under this paragraph except a showing in camera, at which no counsel or party shall be permitted to be present.

If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the judge is not satisfied that the information was received from an informer reasonably believed to be reliable or credible. The judge may require the identity of the informer to be disclosed. The judge shall, on request of the unit of government, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of proceedings under this paragraph except a disclosure in camera, at which no counsel or party shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the unit of government. [1981 c.892 §38; 2011 c.506 §2; 2011 c.644 §§10,37; 2013 c.180 §§2,3; 2015 c.174 §2] 40.280 Rule 511. Waiver of privilege by voluntary disclosure. A person upon whom ORS 40.225 to 40.295 confer a privilege against disclosure of the confidential matter

or communication waives the privilege if the person or the person’s predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This section does not apply if the disclosure is itself a privileged communication. Voluntary disclosure does not occur with the mere commencement of litigation or, in the case of a deposition taken for the purpose of perpetuating testimony, until the offering of the deposition as evidence. Voluntary disclosure does not occur when representatives of the news media are allowed to attend executive sessions of the governing body of a public body as provided in ORS 192.660 (4), or when representatives of the news media disclose information after the governing body has prohibited disclosure of the information under ORS 192.660 (4). Voluntary disclosure does not occur when a public body, as defined in ORS 192.311, discloses information or records in response to a written request for public records made under ORS 192.311 to 192.478. Voluntary disclosure does occur, as to psychotherapists in the case of a mental or emotional condition and physicians in the case of a physical condition upon the holder’s offering of any person as a witness who testifies as to the condition. [1981 c.892 §39; 2003 c.259 §1; 2017 c.456 §9] 40.285 Rule 512. Privileged matter disclosed under compulsion or without opportunity to claim privilege. Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if the disclosure was:

Compelled erroneously; or

Made without opportunity to claim the privilege. [1981 c.892 §40] 40.290 Rule 513. Comment upon or inference from claim of privilege. (1) The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn from a claim of privilege.

In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.

Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom. [1981 c.892 §41] 40.295 Rule 514. Effect on existing privileges. Unless expressly repealed by section 98, chapter 892, Oregon Laws 1981, all existing privileges either created under the Constitution or statutes of the State of Oregon or developed by the courts of Oregon are recognized and shall continue to exist until changed or repealed according to law. [1981 c.892 §42]

40.310 Rule 601. General rule of competency. Except as provided in ORS 40.310 to 40.335, any person who, having organs of sense can perceive, and perceiving can make known the perception to others, may be a witness. [1981 c.892 §43] 40.315 Rule 602. Lack of personal knowledge. Subject to the provisions of ORS 40.415, a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness. [1981 c.892 §44] 40.320 Rule 603. Oath or affirmation.

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the conscience of the witness and impress the mind of the witness with the duty to do so.

An oath may be administered as follows: The person who swears holds up one hand while the person administering the oath asks: “Under penalty of perjury, do you solemnly swear that the evidence you shall give in the issue (or matter) now pending between and shall be the truth, the whole truth and nothing but the truth, so help you God?” If the oath is administered to any other than a witness, the same form and manner may be used. The person swearing must answer in an affirmative manner.

An affirmation may be administered as follows: The person who affirms holds up one hand while the person administering the affirmation asks: “Under penalty of perjury, do you promise that the evidence you shall give in the issue (or matter) now pending between and shall be the truth, the whole truth and nothing but the truth?” If the affirmation is administered to any other than a witness, the same form and manner may be used. The person affirming must answer in an affirmative manner. [1981 c.892 §45] 40.325 Rule 604. Interpreters. Except as provided in ORS 45.275 (7), an interpreter is subject to the provisions of the Oregon Evidence Code relating to qualification as an expert and the administration of an oath or affirmation that the interpreter will make a true and impartial interpretation of the proceedings in an understandable manner using the interpreter’s best skills and judgment in accordance with the standards and ethics of

the interpreter profession. [1981 c.892 §47; 1981 s.s. c.3 §138; 1989 c.224 §7; 1991 c.750 §7; 2001 c.242 §4; 2005 c.385 §3; 2015 c.155 §5] 40.330 Rule 605. Competency of judge as witness. The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point. [1981 c.892 §48] 40.335 Rule 606. Competency of juror as witness. A member of the jury may not testify as a witness before that jury in the trial of the case in which the member has been sworn to sit as a juror. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.