State v. Blue

No. 47 November 25, 2025 439

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

VANESSA ROCHELLE BLUE,

aka Vanessa Rochelle Branton,

Petitioner on Review.

(CC 17CR58140) (CA A177721) (SC S071076)

En Banc

On review from the Court of Appeals.*

Argued and submitted March 6, 2025, at University of

Oregon Law School, Eugene, Oregon.

Matthew Blythe, Deputy Public Defender, Oregon Public

Defense Commission, Salem, argued the cause and filed the

briefs for petitioner on review. Also on the briefs was Ernest

G. Lannet, Chief Defender, Criminal Appellate Section.

Emily Nichole Snook, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on review.

Also on the brief were Dan Rayfield, Attorney General, and

Benjamin Gutman, Solicitor General.

FLYNN, C.J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is reversed, and the case is

remanded to the circuit court for further proceedings.

______________

* Appeal from Curry County Circuit Court, Cynthia Lynnae Beaman, Judge.

331 Or App 675, 547 P3d 167 (2024).

440 State v. Blue

Cite as 374 Or 439 (2025) 441

FLYNN, C.J.

Defendant challenges her conviction for unautho-

rized use of a vehicle, which was based on evidence that

defendant had signed a one-day rental contract for a U-Haul

truck and continued to use it for more than three weeks.

See ORS 164.135 (2017) (specifying elements of unautho-

rized use of a vehicle). At issue is the trial court’s decision to

admit a photograph of a rental agreement that purportedly

bears defendant’s signature, but which defendant denied

having signed. The dispute focuses on the “best evidence”

rule, OEC 1002, which generally requires a party to “prove

the content of a writing, recording or photograph” by offer-

ing the original, and particularly on one of the exceptions to

the “best evidence” rule, OEC 1003, which generally makes

a duplicate “admissible to the same extent” as its original.

That exception does not apply, however, if “[a] genuine ques-

tion is raised as to the authenticity of the original.”1 OEC

1003(1). The meaning of that limitation is at issue here.

The trial court ruled that defendant had failed to raise a

“genuine question * * * as to the authenticity of the original”

and allowed the state to rely on the photograph under OEC

1003, and the Court of Appeals affirmed. State v. Blue, 331

Or App 675, 680, 547 P3d 167 (2024).

We allowed review and now reverse. Under OEC

901, authentication requires “evidence sufficient to support

a finding that the matter in question is what its proponent

claims.” As we will explain, we conclude that a party who

opposes the admission of a duplicate under OEC 1003(1)

raises a “genuine question” as to the authenticity of the

original when there is evidence sufficient to support a find-

ing that the matter in question—the original—is not what

the proponent claims it to be. And because we conclude that

defendant offered testimony from which a jury could find

that her signature on the original had been forged, we hold

that the trial court erred in admitting the photograph in lieu

of the original contract under OEC 1003. We also conclude

that the error was not harmless. Accordingly, we reverse.

1

The duplicate exception set out in OEC 1003 also does not apply if in “the

circumstances it would be unfair to admit the duplicate in lieu of the original.”

OEC 1003(2).

442 State v. Blue

I. FACTS AND PROCEDURAL BACKGROUND

Defendant rented a U-Haul truck in Albuquerque,

New Mexico on July 1, 2017, from a Chevron gas station that

also served as an independent U-Haul dealer. She presented

her driver’s license, paid $100 in cash, and then drove the

U-Haul to Oregon where she lived in it for approximately two

weeks while she worked at a new job. The truck was eventu-

ally reported stolen, and it was spotted in late July parked at

a rest area on the Southern Oregon coast. At the time, defen-

dant was sitting in the driver’s seat, and her personal belong-

ings were in the back of the truck. Defendant was charged

with two counts of unauthorized use of a vehicle (UUV).2

This case arises out of a retrial of the charges

against defendant, after the first trial ended in a hung jury.

In the first trial, defendant testified that she had asked for

a 30-day rental, made a $100 deposit, and was never pre-

sented with a contract. The state introduced a photograph of

a signed U-Haul contract. On cross-examination, defendant

testified, “I didn’t sign no contract.” When asked about a sig-

nature on the exhibit, she stated, “That’s not my signature.”

Before the retrial, the state requested a pretrial

ruling that the photograph of the signed U-Haul contract

would be admissible. The concern stemmed from testimony

in the first trial that the photograph did not depict a docu-

ment maintained in the U-Haul database but instead had

been taken and sent from the Chevron gas station in New

Mexico for the prosecutor to use as evidence at trial.3 Given

2

The relevant version of the UUV statute at the time defendant committed

the offense provided:

“(1) A person commits the crime of unauthorized use of a vehicle when:

“(a) The person takes, operates, exercises control over, rides in or other-

wise uses another’s vehicle * * * without consent of the owner; [or]

“* * * * *

“(c) Having custody of a vehicle * * * pursuant to an agreement with the

owner thereof whereby such vehicle * * * is to be returned to the owner at a

specified time, the person knowingly retains or withholds possession thereof

without consent of the owner for so lengthy a period beyond the specified time

as to render such retention or possession a gross deviation from the agreement.”

ORS 164.135 (2017).

3

The state offered testimony from a field manager for U-Haul to establish

that he had received the photograph of the contract from someone at the Chevron

Cite as 374 Or 439 (2025) 443

the source of the photograph, the trial court questioned

whether the state should be required to offer the original

as the “best evidence” of the contents of the document, or

whether the exception in OEC 1003 made the photograph

admissible to the same extent as the original. Defendant

argued that the exception in OEC 1003 did not apply,

because there was a genuine question as to the authenticity

of the original. Defendant supported her argument by point-

ing to her testimony in the first trial that she had not signed

the agreement and that the signature on the photograph

was not her signature. The trial court ruled that the excep-

tion under OEC 1003 applied and that defendant’s concerns

about fraud could be addressed through testimony at trial.4

During trial, the Oregon U-Haul field manager

testified that the photograph of the signed contract was a

reproduction of a document kept at the independent U-Haul

dealer in Albuquerque, New Mexico. The photograph itself

depicts a printed contract for an “In-Town Rental” from the

Albuquerque Chevron, with a “Rental Due Date” one day

after the “Rental Out Date” and defendant’s name typed

and signed at the bottom. Defendant testified, as she had in

the first trial, that she had not been shown the contract in

the photograph and that it was not her signature at the bot-

tom of the document. She explained that she had rented the

truck for the purpose of driving to Oregon. Her understand-

ing was that the rental was for 30 days, but she also testified

that she had experienced some trouble communicating with

the U-Haul dealer due to language differences. Defendant

acknowledged that she had thought it was odd to be given

a truck with no contract, but she testified that the dealer

explained that the printer was broken so no contract could

be printed out. To support her claim that the New Mexico

dealer had faked the signed one-day rental contract, defen-

dant offered evidence that the only record in the U-Haul

database was an unsigned version of the rental contract in

station, which also served as an independent U-Haul dealer in Albuquerque, New

Mexico.

4

Another rule, OEC 1003-1, permits the admission of reproductions of busi-

ness records, but the Oregon U-Haul field manager was not able to testify to the

business practices of the independent dealer at the Chevron in New Mexico. The

state emphasized in the Court of Appeals that the trial court’s ruling allowed the

duplicate based on OEC 1003, and not OEC 1003-1.

444 State v. Blue

the photograph. In his closing argument, defense counsel

argued that the lack of a signature in the U-Haul database

was evidence that the independent dealer in Albuquerque

had not actually given defendant a contract to sign, and he

emphasized that nobody with personal knowledge had testi-

fied regarding the signed contract except for defendant who

had denied signing it. The jury found defendant guilty of

UUV, and defendant appealed.

In the Court of Appeals, defendant again argued

that the photograph was not the “best evidence” of the con-

tents of the original document—specifically of the purported

signature—and was not admissible in place of the original

under OEC 1003(1), because defendant had raised a “genu-

ine question” as to the authenticity of the original document.

Defendant noted that the standard under OEC 1003(1) is

an issue of first impression for Oregon appellate courts and

proposed that what an opponent must demonstrate to raise

a “genuine question as to the authenticity” should mirror

the summary judgment standard, which asks whether the

opponent has raised a “genuine issue as to a material fact.”

See ORCP 47 C (setting out summary judgment standard).

She argued that her prior testimony that she had not signed

the contract raised a genuine question as to the authenticity

of the original.

The Court of Appeals disagreed. The court relied on

federal cases decided after the Oregon Evidence Code was

enacted that applied the analogous federal rule of evidence for

the proposition that “mere speculation” does not raise a gen-

uine question as to authenticity. Blue, 331 Or App at 680-81.

And the court concluded that defendant needed to offer more

than testimony that she did not sign the contract in order to

raise a “genuine question” as to its authenticity. Id. at 681.

II. DISCUSSION

The ultimate issue in this case is whether defen-

dant raised a “genuine question” as to the authenticity of

the original contract, within the meaning of OEC 1003(1),

with testimony that she had never signed the contract and

that it was not her signature on the photographed contract.

The provisions of the Oregon Evidence Code are statutes,

Cite as 374 Or 439 (2025) 445

and, when construing statutes, our task is to determine

the meaning that the legislature intended by considering

the text, in context, as well as any legislative history that

informs the question. State v. Gaines, 346 Or 160, 171-72,

206 P3d 1042 (2009).

The text of OEC 1003 specifies, in full:

“A duplicate is admissible to the same extent as an orig-

inal unless:

“(1) A genuine question is raised as to the authenticity

of the original; or

“(2) In the circumstances it would be unfair to admit

the duplicate in lieu of the original.”

The significance of an original is addressed in OEC 1002,

the so-called “best evidence” rule, which provides:

“To prove the content of a writing, recording or pho-

tograph, the original writing, recording or photograph is

required, except as otherwise provided in [OEC 1001 to

1008] or other law.”

Thus, OEC 1003 appears to create a default exception to the

“best evidence” rule—making “a duplicate * * * admissible

to the same extent as the original”—although that excep-

tion itself has exceptions, including the exception at issue

here—that is, when “[a] genuine question is raised as to the

authenticity of the original.” OEC 1003(1).

Both the best evidence rule of OEC 1002 and the

exception of OEC 1003 are original provisions of the Oregon

Evidence Code, which the legislature adopted in 1981. Or

Laws 1981, ch 892, §§ 72, 73. To understand both the rule

and the exception in OEC 1003(1), it is helpful to appreciate

the statutory and common-law context out of which those

provisions of the Oregon Evidence Code arose. See Montara

Owners Assn. v. La Noue Development, LLC, 357 Or 333,

341, 353 P3d 563 (2015) (explaining why the context for

interpreting a statute’s text includes the preexisting law).

Prior to the adoption of the Oregon Evidence Code, a

predecessor to OEC 1002 specified that “[t]he original writing

shall be produced and proved” unless certain statutory excep-

tions applied. Former ORS 41.610 (1953), repealed by Or Laws

446 State v. Blue

1981, ch 892, § 98. Those exceptions described circumstances

under which something other than the original writing itself

could be used as “evidence of the contents of a writing.” Former

ORS 41.640(1) (1953), repealed by Or Laws 1981, ch 892, § 98.

Our case law had described that predecessor statute as a cod-

ification of the common-law “best evidence” rule. Lumbermens

Mut. Cas. v. Jamieson, 251 Or 608, 610-11, 447 P2d 384 (1968).

We had explained that “ ‘the purpose of the best evidence rule

is to secure the most reliable information as to the contents of

documents when those contents are disputed.’ ” Dean Vincent,

Inc. v. Stearns, 276 Or 533, 537, 555 P2d 448 (1976) (quoting

State v. White, 4 Or App 151, 156, 477 P2d 917 (1970)); see also

State v. Nano, 273 Or 366, 368, 543 P2d 660 (1975) (explaining

that “[m]ost scholars believe” that one purpose of the rule is

“preventing fraud”). Nano emphasized that the best evidence

rule “prevent[s] a wilful or unintentional mistransmission of

the contents of the writing,” which is especially important for

“operative or dispositive instruments.” 273 Or at 368. When,

however, “there is no good faith dispute [about] the accuracy

of the document presented,” we had reiterated the caution of

earlier decisions that “the ‘mystical ideal’ of seeking the orig-

inal will not be pursued.” Dean Vincent, Inc., 276 Or at 537

(quoting White, 4 Or App at 156). For example, the rule did not

apply to the contract offered in evidence in Dean Vincent, Inc.,

because there was “no real dispute as to the execution or the

terms of the agreement.” Id.

When the legislature adopted the Oregon Evidence

Code in 1981, it again codified Oregon’s strong preference for

an original through the rule and exceptions set out at OEC

1002 to 1007.5 Collectively, the rules create a framework

under which, “[t]o prove the content of a writing, recording

or photograph, the original writing, recording or photograph

is required,” unless one of the specified exceptions is met.

OEC 1002.

With that context, we turn to the particular excep-

tion at issue here: “A duplicate is admissible to the same

extent as an original” unless a “genuine question is raised

as to the authenticity of the original.” OEC 1003(1). A “dupli-

cate” is defined as

5

OEC 1003-1 was a later addition. Or Laws 1995, ch 760, § 3.

Cite as 374 Or 439 (2025) 447

“a counterpart produced by the same impression as the

original, or from the same matrix, or by means of photogra-

phy, including enlargements and miniatures, by mechani-

cal or electronic re-recording, by chemical reproduction, by

optical imaging[,] or by other equivalent techniques that

accurately reproduce the original * * *.”

OEC 1001(1) (emphasis added). Thus, OEC 1003 captures

the concept that a “counterpart” of the original produced

through techniques that “accurately reproduce the original”

is generally just as good as the original when trying to prove

the content of the original. But there are exceptions.

There is no dispute here that the state’s purpose

in admitting the photograph was to “prove the content of

a writing”—the terms of a contract for a truck rental and

defendant’s signature on it. There also is no dispute that the

photograph the state offered meets the definition of a “dupli-

cate” for purposes of the exception set out in OEC 1003.6

Rather, as described above, the dispute focuses on whether

“[a] genuine question” was raised as to “the authenticity

of the original,” so as to make the exception to the “best

evidence” rule for duplicates under OEC 1003 inapplicable.

Thus, we turn to the meaning of those phrases, beginning

with “authenticity of the original.”

A. Authenticity of the Original

In general, “authenticity” refers to the requirement

for admitting evidence that the offered item “is what its pro-

ponent claims.” OEC 901(1). Here, the state contended that

the original was a contract that defendant signed for the

New Mexico rental. OEC 901(1) explains that

“[t]he requirement of authentication or identification as

a condition precedent to admissibility is satisfied by evi-

dence sufficient to support a finding that the matter in

question is what its proponent claims.”

6

To account for technological advancements, when data is stored on a com-

puter or similar device the definition of “original” includes “any printout or other

output readable by sight, shown to reflect the data accurately.” OEC 1001(2). No

party contends that the photograph of the signed contract at issue here would

qualify as an original under that definition, because the state offered the pho-

tograph as evidence of a paper document to claim that defendant had physically

signed it.

448 State v. Blue

The requirement that evidence is what the proponent claims

it to be is a question of fact and a condition of the evidence

being relevant. See Legislative Commentary to OEC 901,

reprinted in Laird C. Kirkpatrick, Oregon Evidence § 901.02,

951 (7th ed 2020) (hereinafter Oregon Evidence) (explaining

that “[t]his requirement of showing authenticity or identity

falls in the category of relevancy dependent upon fulfillment

of a condition of fact”). Whether proffered evidence is authen-

tic is a question for the factfinder to resolve, unless there

is insufficient evidence offered that to support a finding of

authenticity. See id. (explaining that the requirement of rel-

evance “is governed by the procedure set forth in subsection

(2) of section 5 (Rule 104) of this Act”); OEC 104(2) (“When

the relevancy of evidence depends upon the fulfillment of a

condition of fact, the court shall admit it upon, or subject to,

the introduction of evidence sufficient to support a finding

of the fulfillment of the condition.”). One of the many ways

for a party to authenticate a piece of evidence is to present

“[t]estimony by a witness with knowledge that a matter is

what it is claimed to be.” OEC 901(2)(a).

Under OEC 1003(1), the question is whether there is

a dispute as to authenticity of the original. Thus, as we turn

to what it means to raise a “genuine question” as to authen-

ticity, we do so with the understanding that the “question”

relates to whether the original document is what the pro-

ponent claims it to be, which ultimately is a determination

for the factfinder if there is evidence sufficient to support a

finding of authenticity. OEC 901(1).

B. Genuine Question

The dispute in this case is focused on what the leg-

islature intended to require with the specification that rais-

ing a “genuine question” as to authenticity of the original

means that the proponent cannot rely on OEC 1003 to avoid

producing the original.7

7

The Court of Appeals seems to have assumed that the exception in OEC

1003 is the only way that the state could have offered evidence that defendant

had signed the contract. See Blue, 331 Or App at 681 (reasoning that, “[e]xclusion

of the duplicate solely because defendant denied that she signed it would have

removed that evidence from the jury’s consideration”). But a conclusion that the

offered evidence was not admissible under OEC 1003 does not mean that the

state lacks other means to offer the evidence. The record below does not support

Cite as 374 Or 439 (2025) 449

Defendant argues that an opponent raises a “genu-

ine question” as to authenticity by presenting evidence from

which a reasonable jury could infer that the original is not

what the proponent contends it to be. Defendant points by

analogy to the standard for summary judgment under ORCP

47 C, which turns on whether there is a “genuine issue” as to

a material fact. In addressing the predecessor to that rule,

former ORS 18.105 (1977), repealed by Or Laws 1979, ch 284,

§ 199, this court explained that “courts generally read ‘genu-

ine issue’ to mean ‘triable issue’ ” and that, “[b]efore a party

has a triable issue, he or she must have sufficient evidence

to be entitled to a jury determination.” Seeborg v. General

Motors Corporation, 284 Or 695, 700, 588 P2d 1100 (1978)

(applying former ORS 18.105 (1977)). According to defen-

dant, the legislature’s use of the same term—“genuine”—to

describe disputes as to the factual question of authenticity

in OEC 1003 is significant. By analogy, defendant contends,

if there is a basis for the jury to find that an original writ-

ing, recording, or photograph is not authentic, then there is

a genuine question as to authenticity that makes the default

exception in OEC 1003, permitting duplicates to be admissi-

ble to the same extent as an original, inapplicable.

The state argues that raising a “genuine question”

under OEC 1003(1) requires a “substantial showing,” such

that a factfinder would be compelled to find that the origi-

nal is not authentic.8 The state supports its proposed rule by

relying on federal case law and treatises, because the legis-

lative history of OEC 1003 indicates that it was modeled on

the federal rule.

In other words, the state and defendant part com-

pany on the question of what happens when there is conflict-

ing evidence from which a jury could find in favor of either

party on the question of the authenticity of an original

an assumption that the state is unable to produce the original. Nor does it sug-

gest that the state is unable to offer testimony of a witness with knowledge suf-

ficient to lay a foundation for admitting the photograph under OEC 1003-1 as a

duplicate of a business record maintained by the Chevron station in the ordinary

course of its business.

8

Elsewhere in its brief the state proposes a standard that comes close to

matching the standard that defendant proposes—that, “[t]o raise a genuine ques-

tion, the party must show that the original is needed to assist the factfinder with

resolving a question of authenticity.”

450 State v. Blue

writing, recording, or photograph. According to defendant,

if there is evidence from which the jury could find that the

original is not what the proponent claims it to be, then the

jury should be allowed to make that determination by exam-

ining the original. But, according to the state, OEC 1003

allows the proponent to rely on a duplicate to prove the con-

tent of a writing, recording, or photograph absent proof that

would compel the jury to find the original is not what the

proponent claims it to be. The text, context, and legislative

history of OEC 1003 persuade us that defendant’s under-

standing better captures the standard that the legislature

likely intended.

Turning first to the terms themselves, the legisla-

ture did not define the phrase “genuine question.” But both

terms are words of common usage, and we often presume a

legislative intent to give such words their ordinary mean-

ing. Brown v. GlaxoSmithKline, LLC, 372 Or 225, 231, 548

P3d 817 (2024). In ordinary usage, a genuine question has

some basis for being asked and is not abstract or frivolous.

See Webster’s Third New Int’l Dictionary 948 (unabridged ed

2002) (defining “genuine” as “having a real existence : con-

forming to reality : not abstract or frivolous”); id. at 1863

(defining “question” as “a subject or aspect that is in dispute,

open for discussion, or to be inquired into : issue”; “something

the correctness or existence of which is open to doubt”). In

the context of OEC 1003, that plain meaning suggests that

a “genuine question” as to the authenticity of the original

refers to a fact-based reason for contending that the original

is not what the proponent claims it to be. And, given that the

question of authenticity is a question for the jury if there is

“evidence sufficient to support a finding that the matter in

question is what its proponent claims,” OEC 901, the plain

meaning suggests that raising a genuine question requires

the opponent to point to some evidence that would permit

the jury to agree with the opponent that the original is not

what the proponent claims it to be.

We agree with defendant that the phrase “genuine

question” would seem to describe a standard that is analo-

gous to the longstanding standard for granting a summary

judgment—“a genuine issue as to any material fact”—which

Cite as 374 Or 439 (2025) 451

required “sufficient evidence to be entitled to a jury deter-

mination” of the fact. Seeborg, 284 Or at 700; former ORS

18.105 (1977); ORCP 47 C (1980). But this is not a case in

which we presume that the legislature intentionally bor-

rowed the summary standard when adopting OEC 1003.9

Rather, we focus on text and context for OEC 1003. That

examination persuades us that the standard the legislature

intended courts to apply in determining whether there is

a “genuine question” as to authenticity of the original is a

standard that we can understand to be analogous to whether

a party has raised a “genuine” issue regarding a “material

fact” for purposes of opposing summary judgment, or other

motions—such as a directed verdict—that require the court

simply to determine whether there is “sufficient evidence”

to entitle the party to have a jury decide the fact at issue.

See Jones v. General Motors Corp., 325 Or 404, 413, 939 P2d

608 (1997) (explaining that the summary judgment focus

on “sufficient evidence” to allow the jury to decide the fac-

tual issues “has led both courts and commentators to com-

pare the motion for summary judgment to the motion for a

directed verdict” (internal quotation marks omitted)).

In addition to the common meaning of “genuine,”

the broader statutory context suggests that the legislature

intended a “genuine question” as to the authenticity of an

original to exist when there is some evidence that would

permit the jury to find that the original is not what the

proponent claims it to be. Turning to that context, we reit-

erate that, collectively OEC 1002 through 1008 define the

requirements of the “best evidence” rule. OEC 1002 sets out

the general principle that the original must be produced to

prove the content of a writing, recording, or photograph, and

OEC 1003 through 1007 identify circumstances under which

evidence other than the original is admissible in lieu of the

original. Together OEC 1002 and 1003 serve the purpose of

9

Although we often presume that the legislature enacts or amends statutes

with an awareness of controlling precedent interpreting the pertinent statutory

wording, this court usually only does so when the word in question is used in

related statutes. Polacek and Polacek, 349 Or 278, 284, 243 P3d 1190 (2010). An

evidentiary rule and a rule of civil procedure are not inherently related, and

we are unwilling to presume that the legislature intentionally incorporated the

summary judgment standard.

452 State v. Blue

“preventing a wilful or unintentional mistransmission” of

“operative or dispositive instruments.” Nano, 273 Or at 368.

The state’s contention that raising a genuine ques-

tion as to authenticity of an original means establishing

that a jury would be compelled to find that the original is

not authentic undermines the authentication requirement,

because evidence that is conclusively not authentic should

be excluded altogether. The state’s proposal would reduce

OEC 1003(1) to the essentially meaningless proposition that,

when the original fails to satisfy the condition precedent for

relevance—authenticity—the duplicate also is not relevant.

And it undermines the best evidence principle, because it

ignores the code’s preference that the jury consider the origi-

nal when resolving factual questions, which include whether

the original is authentic. If a duplicate were to be admitted

as the best evidence of the contents of an original when there

is a genuine question that the original is what it purports

to be, the factfinder is left to resolve disputes about the con-

tents without the best evidence of those contents. Text and

context, thus, support defendant’s contention that, when

there is evidence from which a jury could find that an origi-

nal is not what it purports to be, OEC 1003(1) maintains the

preference established by OEC 1002 that the original is the

best evidence to prove the content.

The legislative history for the code confirms that the

best evidence rules, collectively, were intended to reduce the

risk that a jury would be basing its decision on fraudulent

or otherwise inaccurate evidence. As indicated above, OEC

1003(1) was enacted in 1981 as part of the Oregon Evidence

Code. Or Laws 1981, ch 892, § 73. The code was a product of

the 1979-81 Interim Joint Committee on the Judiciary, and

the work product of that committee was reflected in House

Bill (HB) 2030 introduced in the 1981 session of the legis-

lature. See State v. Jancsek, 302 Or 270, 278, 280, 730 P2d

14 (1986) (explaining history). The Interim Committee, in

turn, had relied on earlier work of the Advisory Committee

on Evidence Law Revision, which had submitted a proposed

new Oregon Evidence Code accompanied by an extensive

commentary to the Interim Committee in 1979. State v.

Carr, 302 Or 20, 25 n 2, 725 P2d 1287 (1986). The Interim

Cite as 374 Or 439 (2025) 453

Committee prepared its own updated code and commen-

tary, which was presented as an exhibit to the 1981 House

and Senate committees to which the bill was referred.

Id. Finally, those committees produced what the chairs

referred to as the “official commentary” to accompany the

new evidence code. Jancsek, 302 Or at 280 (explaining that

the commentary was denominated by the chairpersons of

the respective committees as the “official commentary”).

Although the 1981 Conference Committee Commentary

was not adopted by the entire Legislative Assembly, this

court has consistently turned to it for guidance in inter-

preting the evidence code. State v. Serrano, 346 Or 311,

324, 210 P3d 892 (2009) (explaining that, although the 1981

Conference Committee “Commentary is not an official part

of the Oregon Evidence Code, it nonetheless provides highly

useful background regarding each rule and guidance to

courts and attorneys in interpreting [the code]” (internal

quotation marks omitted)).

Then-judge Richard Unis, who led the 1981 Interim

Committee, explained to legislators that OEC 1001, which

defines how “duplicate” and “original” are used through-

out the best evidence provisions, “makes it clear” that the

original is required “only when there is a genuine issue as

to material fact, for example, suppose there is a question

of fraud.” Testimony, Joint Committee on the Judiciary,

Subcommittee on Evidence, July 1, 1980, Tape 18, Side B

(statement of then-Judge Richard Unis).

Similarly, the commentary reflects the concern

with preventing fraud. The commentary specifies that OEC

1003 was “consistent with current Oregon law.” Legislative

Commentary to OEC 1003, reprinted in Oregon Evidence,

§ 1003.02, 1009. And when describing Oregon law, the com-

mentary specifically refers to this court’s decision in Nano

and the Court of Appeals’ decision in White. Id.; Legislative

Commentary to OEC 1002, reprinted in Oregon Evidence,

§ 1002.02, 1004. Although both cases ultimately turned on

the concept now captured in the second paragraph of OEC

1003—that a duplicate is admissible to the same extent as

an original unless it would be “unfair” to treat it as such—

both cases also emphasize that an original may be required

454 State v. Blue

when there are concerns that the offered evidence is not

what the proponent claims it to be. See Nano, 273 Or at 368

(explaining that “[m]ost scholars believe” that one purpose

of the rule is “preventing fraud”); White, 4 Or App at 155-

56 (explaining that, when it appears that “what is called

the secondary evidence is clearly equal in probative value to

what is called the primary proof, and that fraud or imposi-

tion, reasonably, is not to be feared, the reason upon which

the best evidence rule rests ceases”).

Nevertheless, the state contends that the legisla-

ture’s reliance on the comparable federal rules of evidence

supports its proposal that an objection to admission of a

duplicate under OEC 1003(1) requires a showing that a fact-

finder would be compelled to find that the original is not

authentic. Because Oregon adopted the wording in OEC

1003(1) verbatim from the initial version of FRE 1003,10

any pertinent history of FRE 1003(1) or cases construing it

prior to 1981 would inform our understanding of legislative

intent. See McKean-Coffman v. Employment Div., 312 Or

543, 550, 824 P2d 410 (1992) (explaining that, when Oregon

adopts federal wording virtually verbatim, federal legis-

lative history pertaining to that wording is persuasive in

interpreting a similar Oregon statute); Computer Concepts,

Inc. v. Brandt, 310 Or 706, 714 nn 7 & 8, 801 P2d 800 (1990)

(noting that federal legislative history and federal cases

construing a federal act are persuasive when interpreting a

similar Oregon statute).

But we have identified neither federal cases predat-

ing the adoption of the Oregon Evidence Code nor indica-

tions in the adoption history of the Federal Rules of Evidence

that would have led the legislature to understand an objec-

tion to a duplicate under FRE 1003(1) to require conclu-

sive evidence that an original is not authentic. Indeed, the

cases that defendant cites suggest that the federal courts

were employing a standard much like that suggested by

the text of OEC 1003. United States v. Georgalis, 631 F2d

10

OEC 1003’s wording is identical to that in FRE 1003 when Congress

adopted the Federal Rules of Evidence. FRE 1003 (1975). In 2011, the language

in FRE 1003 was restyled to be more easily understood and consistent with other

evidence rules. FRE 1003 Advisory Committee Notes, 2011 Amendments. The

changes to FRE 1003 were intended to be stylistic only. Id.

Cite as 374 Or 439 (2025) 455

1199, 1205 (5th Cir 1980), reh’g den, 636 F2d 315 (5th Cir

1981) (describing requirement for opposing party to show

that there is a genuine issue “as to the authenticity of the

unintroduced original, or as to the trustworthiness of the

duplicate, or as to the fairness of substituting the duplicate

for the original”); United States v. Enstam, 622 F2d 857, 866

(5th Cir 1980), cert den, 450 US 912 (1981) (evaluating objec-

tion only to accuracy of the duplicate).11 Similarly, there is

no indication in the federal legislative history that would

have suggested to the 1981 Oregon Legislature that FRE

1003(1) required conclusive evidence that an original is

not authentic. See FRE 1003 Advisory Committee Notes on

1972 Proposed Rules, reprinted in 56 FRD 183, 343 (1972)

(explaining rule by merely tracking the statutory standard

that, “if no genuine issue exists as to authenticity and no

other reason exists for requiring the original, a duplicate is

admissible under the rule”).

In sum, we find that the text, context, and legis-

lative history show that a genuine question under OEC

1003(1) is raised when an opponent is able to make an evi-

dentiary showing from which a reasonable jury could find

that the original is not authentic—that is, not what the

proponent claims it to be. When a jury could resolve the

question of authenticity either way, OEC 1003(1) retains the

established preference that the original is the best evidence

from which the jury should resolve disputes regarding the

contents of the original. We emphasize that the Oregon

Evidence Code contains other exceptions to the best evi-

dence rule, but OEC 1003(1) is the only provision at issue in

this case.

11

The state primarily relies on one federal treatise that suggests raising a

“genuine question” under the federal rule would require evidence that would com-

pel the jury to find that the evidence is not authentic. See David W. Louisell and

Christopher B. Mueller, 5 Federal Evidence § 575-77, 439-59 (1st ed 1981) (sug-

gesting that FRE 1003 requires “cogent and compelling evidence” of the sort that

would require any reasonable person to “find that the original is not authentic”).

But the treatise cites no cases employing that standard, and there is no basis

to conclude that the opinion expressed in that treatise—which appears to have

been published in November 1981—would have been available to the Interim

Committee or any legislators who adopted Oregon’s Evidence Code. See id. at

iii-iv (preface indicating, “[a]s of November, 1981, twenty-two states had adopted

codifications of evidence law based upon the Federal Rules” but that “[t]he Oregon

adoption came too late for inclusion in this volume”).

456 State v. Blue

III. APPLICATION

As a preliminary matter, the parties disagree on

the standard of review this court applies for reviewing the

admissibility of evidence under OEC 1003(1).

Defendant asserts that this court should review

for legal error because OEC 1003(1) requires an objective

analysis—either a genuine question is raised or not—

instead of a discretionary or factual one. Defendant asserts

that nothing in the statutory provision indicates that the

trial court is called to weigh any evidence, conduct balanc-

ing, make a final authentication determination, or make

factual findings that would lead to an abuse of discretion

standard.

Conversely, the state argues for review under an

abuse of discretion standard noting that is the standard

used by federal appellate courts to review whether a “gen-

uine question” has been raised under FRE 1003. The state

argues that this court reviews rulings on authenticity for

abuse of discretion and, therefore, whether a genuine ques-

tion as to authenticity has been raised should be reviewed

the same way. But the cases on which the state relies

address a court’s discretion with respect to how precisely

a proponent must describe the chain of custody to support

admission of an exhibit—not whether a court has discre-

tion with regard to the question of whether an opponent has

pointed to evidence from which a jury could find that an

exhibit is not what the proponent claims it to be. Vander

Veer v. Toyota Motor Distributors, 282 Or 135, 146-47, 577

P2d 1343 (1978); Amer. Recip. Insurers v. Bessonette, 241 Or

500, 505-06, 405 P2d 529 (1965). Moreover, regardless of

how authenticity may have been decided prior to 1981, the

current code makes clear that whether proffered evidence

is authentic is a question for the factfinder to resolve—as

long as there is “evidence sufficient to support a finding that

the matter in question is what its proponent claims.” OEC

901(1); Legislative Commentary to OEC 901, reprinted in

Oregon Evidence, § 901.02, 951-52.

We note that federal appellate courts review all evi-

dentiary rulings for abuse of discretion. General Elec. Co. v.

Cite as 374 Or 439 (2025) 457

Joiner, 522 US 136, 141-42, 118 S Ct 512 (1997). But, as this

court has explained, even if a federal court reviews an evi-

dentiary determination for an abuse of discretion, an errone-

ous construction of the law would meet that standard, and no

“ ‘federal court has ever held that a district court’s error as to

a matter of law is not an abuse of discretion.’ ” See Arrowood

Indemnity Co. v. Fasching, 369 Or 214, 247 n 18, 503 P3d

1233 (2022) (quoting Yokoyama v. Midland Nat. Life Ins. Co.,

594 F3d 1087, 1091 (9th Cir 2010)). Further, this court is not

bound by the standard used to review an evidentiary rule’s

federal counterpart. See id. at 247 (discussing that federal

circuit courts review trial court rulings regarding hearsay

exceptions for abuse of discretion whereas Oregon appellate

courts review a trial court’s ruling regarding hearsay excep-

tions for errors of law).

In Oregon, evidentiary disputes are reviewed for

either abuse of discretion or legal error. State v. Cunningham,

337 Or 528, 536-37, 99 P3d 271 (2004) (citing State v. Titus,

328 Or 475, 481, 982 P2d 1133 (1999)). When a question

involves application of principles that can lead to “only one

legally correct outcome,” this court reviews whether the

trial court erred as a matter of law. Id. at 538. However,

when the application of appropriate principles would per-

mit more than one legally correct outcome, Oregon appellate

courts review for abuse of discretion. Id. at 536-38. With that

framework in mind, we conclude that whether a party has

raised a “genuine question * * * as to the authenticity of the

original” under OEC 1003(1) is a question that we review for

legal error, because there is only one correct answer: either

the opponent pointed to evidence sufficient to permit a rea-

sonable juror to find that the original is not what the propo-

nent claims it to be, or there is no evidentiary basis for the

jury to find that the original is inauthentic.

Applying that standard of review, we disagree with

the Court of Appeals’ conclusion that defendant failed to

raise a genuine question as to the authenticity of the origi-

nal. As indicated above, the Court of Appeals concluded that

a party cannot meet their burden of raising a “genuine ques-

tion” by simply denying that they signed a document. Blue,

331 Or App at 681. But our analysis of the text, context, and

458 State v. Blue

legislative history has persuaded us that a genuine question

as to authenticity is raised by testimony that—if believed—

would permit the jury to find that the evidence is not what

the proponent claims it to be. Cf. OEC 901(2)(a) (explain-

ing that a party may authenticate a piece of evidence by

presenting “[t]estimony by a witness with knowledge that a

matter is what it is claimed to be”).

And we conclude that defendant presented evidence

sufficient for a reasonable juror to conclude that the original

document depicted in the photograph was inauthentic, and

therefore raised a genuine question as to its authenticity.

In defendant’s pretrial “best evidence” objection, defense

counsel pointed to defendant’s prior testimony from the first

trial that she had never signed the document depicted in

the photograph and that the signature was not hers. We

understand defense counsel to have been making an offer

of proof and representing that defendant would again tes-

tify to the same bases for questioning authenticity of the

original. That testimony to which defense counsel pointed

was under oath and offered ample basis for the jury to find

that the original was not a rental contract that defendant

had signed at the Albuquerque Chevron. She not only testi-

fied that she had never signed or been shown the contract,

but also described an alternative version of the events that

explained how defendant could have left the Chevron with-

out signing a contract and why she would not have agreed

to a one-day, in-town rental. And defense counsel pointed to

potentially corroborating evidence that there was no signed

contract in the official U-Haul database, which further sup-

ported defendant’s assertion that the signed contract was

not authentic. Therefore, the trial court erred by admitting

the photograph of the signed contract under OEC 1003(1).

We recognize that the trial court’s error in admit-

ting the duplicate does not require reversal if the eviden-

tiary error was harmless—meaning that the error had little

likelihood of affecting the verdict. State v. Bowman, 373 Or

213, 232, 564 P3d 121 (2025). Generally, “[a]n evidentiary

error is more likely to influence a verdict if the error relates

to a central factual issue in this case, and is less likely to

influence a verdict if it relates to a tangential issue.” State

Cite as 374 Or 439 (2025) 459

v. Bement, 363 Or 760, 779, 429 P3d 715 (2018). Erroneously

admitted evidence is more likely to have affected a verdict if

it is “ ‘qualitatively different’ from the other evidence on that

point, rather than ‘merely cumulative.’ ” State v. Edmonds,

364 Or 410, 430, 435 P3d 752 (2019). With these guiding

principles in mind, we turn to the record in this case.

The premise that defendant had signed the contract

depicted in the photograph was central to the state’s theory

that defendant was guilty of the two counts of UUV. The

first count required the state to prove that defendant know-

ingly exercised control over the U-Haul without consent.

ORS 164.135(1)(a) (2017). The second required the state to

prove that defendant had knowingly retained possession

of the truck without consent of the owner in a gross devi-

ation from the rental agreement. ORS 164.135(1)(c) (2017).

Thus, both counts required defendant to have acted know-

ingly, for which the state’s strongest evidence was defen-

dant’s purported signing of a contract for a one-day rental

in New Mexico. There was no testimony from the gas station

employee who rented the U-Haul to defendant, or anybody

else aside from defendant, who had first-hand knowledge as

to what defendant would have understood the agreement to

be. Although the jury saw an unsigned version of the same

contract, which had been uploaded to the U-Haul system,

the duplicate of the signed contract was not merely cumu-

lative of that evidence. Instead, the unsigned version was

defendant’s affirmative evidence to support defendant’s tes-

timony that she had never signed a one-day rental contract.

The persuasive strength of the photograph purportedly

showing that she signed the one-day contract was quali-

tatively different evidence to prove that defendant “know-

ingly” possessed the truck for longer than her rental agree-

ment permitted—a fact crucial to an element of both counts

of UUV. Defendant testified that it was not her signature on

the photocopied document and that she had never signed a

contract, but the jury was allowed to resolve the case with-

out examining the best evidence of the state’s claim that

defendant had signed a one-day rental contract.

The state argues that any error was harmless

because, in any trial on remand, there are other ways that

460 State v. Blue

the state could again introduce evidence of the signed con-

tract, either by obtaining the original or through another

exception to the best evidence rule. We emphasize that the

state is not suggesting it did attempt to offer the evidence

through one of these other methods, which might have pre-

sented an alternative basis for affirming the trial court.

Instead, the state is speculating that a hypothetical new

trial would unfold in a way that produces the same result

as the trial in which the error occurred. But that is not how

this court approaches the harmless error inquiry. Whether

an error is harmless reflects on an error’s possible influence

on the actual verdict rendered in the case. State v. Davis,

336 Or 19, 32, 77 P3d 1111 (2003). We do not predict or spec-

ulate hypothetical outcomes of a case on remand. See State

v. Sanchez-Alfonso, 352 Or 790, 807-08, 293 P3d 1011 (2012)

(declining to “speculate about what may have happened if

the case had been tried otherwise” in the harmless error

analysis).

Because the photograph of the contract was a cen-

tral, noncumulative piece of evidence necessary to prove an

element of both counts of UUV, we conclude that the trial

court’s error in admitting the duplicate to the same extent

as an original was not harmless.

IV. CONCLUSION

In sum, we conclude that the photograph of the

signed U-Haul contract was inadmissible as a duplicate

under OEC 1003(1) because defendant’s offer of proof raised

a genuine question as to the authenticity of the original

contract. We further conclude that the trial court’s admis-

sion of the photograph did not qualify as harmless error.

Accordingly, we reverse both the decision of the Court of

Appeals and the trial court’s judgment of conviction.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is reversed, and the case

is remanded to the circuit court for further proceedings.