ORS 40.030¹
Rule 104. Preliminary questions

(1) Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege or the admissibility of evidence shall be determined by the court, subject to the provisions of subsection (2) of this section. In making its determination the court is not bound by the rules of evidence except those with respect to privileges.

(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.

(3) Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, if the accused so requests.

(4) The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.

(5) This section does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. [1981 c.892 §5]

(Rule 104)

Notes of Decisions

Where no witness testified about seeing defendant wearing jacket in co-defendant’s vehicle when victim was killed and facts were made known to expert witness through prosecutor’s hypothetical ques­tion, evidence was sufficient to support finding to that effect. State v. Nefstad, 309 Or 523, 789 P2d 1326 (1990)

Where defendant was convicted of child sexual abuse, admission of foster mother’s testimony that child had cried out in her sleep, “Daddy, get off me. Daddy, stop, leave me alone,” constituted reversible error, because state failed, pursuant to this pro­vi­sion, to es­tab­lish nexus between child’s utterance and alleged incidents. State v. Presley, 108 Or App 149, 814 P2d 550 (1991)

Judge should use preponderance standard of proof in deciding preliminary ques­tions of fact under this sec­tion. State v. Carlson, 311 Or 201, 808 P2d 1002 (1991); State v. Kim, 111 Or App 1, 824 P2d 1161 (1992), Sup Ct review denied; Rugemer v. Rhea, 153 Or App 400, 957 P2d 184 (1998)

When party seeks to introduce hearsay state­ment by an­oth­er per­son, determina­tion as to whether party against whom state­ment is offered intended to adopt, agree with or approve of contents of state­ment of an­oth­er is preliminary ques­tion of fact for trial judge under this sec­tion. State v. Carlson, 311 Or 201, 808 P2d 1002 (1991)

Law Review Cita­tions

29 WLR 927 (1993)

Chapter 40


Notes of Decisions

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

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

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

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

Law Review Cita­tions

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

Chapter 40

Evidence Code

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

1 Legislative Counsel Committee, CHAPTER 40—Evidence Code, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors040.­html (2019) (last ac­cessed May 16, 2020).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 40, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano040.­html (2019) (last ac­cessed May 16, 2020).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information