ORS 40.450¹
Rule 801. Definitions for ORS 40.450 to 40.475

As used in ORS 40.450 (Rule 801. Definitions for ORS 40.450 to 40.475) to 40.475 (Rule 806. Attacking and supporting credibility of declarant), unless the context requires otherwise:

(1) A “statement” is:

(a) An oral or written assertion; or

(b) Nonverbal conduct of a person, if intended as an assertion.

(2) A “declarant” is a person who makes a statement.

(3) “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(4) A statement is not hearsay if:

(a) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement:

(A) Is inconsistent with the testimony of the witness and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition;

(B) Is consistent with the testimony of the witness and is offered to rebut an inconsistent statement or an express or implied charge against the witness of recent fabrication or improper influence or motive;

(C) Is one of identification of a person made after perceiving the person; or

(D) Purports to interpret an otherwise admissible statement made by another person from one language into another.

(b) The statement is offered against a party and is:

(A) That party’s own statement, in either an individual or a representative capacity;

(B) A statement of which the party has manifested the party’s adoption or belief in its truth;

(C) A statement by a person authorized by the party to make a statement concerning the subject;

(D) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship; or

(E) A statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

(c) The statement is made in a deposition taken in the same proceeding pursuant to ORCP 39 I. [1981 c.892 §62; 1987 c.275 §3; 2019 c.306 §1]

(Rule 801)

See also annota­tions under ORS 41.900 in permanent edi­tion.

Notes of Decisions

Under Former Similar Statute (Ors 41.900)

Exclusion of co-conspirator’s state­ment from use against defendant at trial applies to state­ments not directly implicating defendant. State v. Capitan, 8 Or App 582, 494 P2d 443 (1972), Sup Ct review denied

Declara­tions of Co Conspirator Were Properly Admitted Against Defendant Under This Sec­tion As Relating to Conspiracy to Commit Murder Where

1) state­ments were made while co-conspirator was in process of concealing and later at­tempting to sell fruits of robbery which co-conspirator and defendant had conspired to commit; 2) con­spir­a­cy to rob was continuing since the stolen prop­erty had not been disposed of; and 3) possibility of mur­der was foreseeable result of con­spir­a­cy to rob. State v. Garrison, 16 Or App 588, 519 P2d 1295 (1974), Sup Ct review denied

Dura­tion of con­spir­a­cy is limited to those acts directly related to substantive crime. State v. Davis, 19 Or App 446, 528 P2d 117 (1974)

Where testimony of coconspirator was sufficient to es­tab­lish existence of con­spir­a­cy of which defendant was part, timing of evidence was within discre­tion of trial court. State v. Curran, 38 Or App 351, 590 P2d 268 (1979), Sup Ct review denied

In pros­e­cu­­tion for alleged con­spir­a­cy to wreck defendant’s boat so defendant could collect on loss from his insurance company, note written by alleged coconspirator was admissible, not for truth of contents of note, but as founda­tion for state­ments made by defendant in response to learning of note. State v. Hattersley, 56 Or App 265, 641 P2d 634 (1982), aff’d 294 Or 592, 660 P2d 674 (1983)

State­ments of co-conspirator are admissible as long as they are “related to” con­spir­a­cy. State v. Pottle, 62 Or App 545, 662 P2d 351 (1983), aff’d on other grounds, 296 Or 274, 671 P2d 1 (1984)

Under Evidence Code

Where witness testified that he received letter from defendant containing thinly veiled threat concerning witness testifying at defendant’s trial, witness’s state­ments were admissible. State v. Reece, 56 Or App 169, 641 P2d 1141 (1982)

Trial court’s admission of investigating of­fi­cer’s hearsay testimony concerning plaintiff’s state­ments at accident scene, if error, was harmless where plaintiff later testified to the same effect and where there was “aroma” in the evidence that plaintiff’s version of events was recent fabrica­tion. Livestock Transporta­tion v. Ashbaugh, 64 Or App 7, 666 P2d 1356 (1983), Sup Ct review denied

Out-of-court state­ment concerning details of rape, made before motive to testify falsely arose, is admissible as prior consistent state­ment following impeach­ment by prior inconsistent state­ment. State v. Middleton, 294 Or 427, 657 P2d 1215 (1983)

To have adopted hearsay state­ment of third per­son, circumstances must indicate that party used state­ment in such a way as to indicate approval of or agree­ment with it. State v. Severson, 298 Or 652, 696 P2d 521 (1985)

Testimony of Children’s Services Division worker concerning what victim of sexual abuse told her was admissible as prior consistent state­ment under this sec­tion to rebut defendant’s impeach­ment of victim by allegedly inconsistent state­ments and implied charge of recent fabrica­tion. State v. Resendez, 82 Or App 259, 728 P2d 562 (1986), Sup Ct review denied

In ac­tion for securities law viola­tions, where plaintiff presented sufficient evidence for jury to find that defendant either controlled seller of stock within meaning of ORS 59.115 (Liability in connection with sale or successful solicitation of sale of securities) or that defendant sold stock in viola­tion of ORS 59.115 (Liability in connection with sale or successful solicitation of sale of securities) through his agent, court did not err in admitting testimony of purported agent’s state­ments re­gard­ing defendant’s knowledge and approval of stock sale. Wicks v. O’Connell, 89 Or App 236, 748 P2d 551 (1988)

Officer’s opinion as to credibility of witnesses who might testify contrary to of­fi­cer did not constitute charge of recent fabrica­tion and prior consistent state­ments of plaintiff were thus erroneously admitted, but error was not prejudicial. Powers v. Officer Cheeley, 307 Or 585, 771 P2d 622 (1989)

Where state­ment is admissible as admission of adverse party, opinion rule is inapplicable and trial court erred in excluding defendant’s state­ment. Washington v. Taseca Homes, Inc., 101 Or App 607, 792 P2d 453 (1990), aff’d 310 Or 783, 802 P2d 70 (1990)

For state­ments attributed to co-conspirator to be admitted under this sec­tion, state must show founda­tional require­ments by preponderance of evidence. State v. Cornell, 109 Or App 396, 820 P2d 11 (1991), aff’d 314 Or 673, 842 P2d 394 (1992)

Conspiracy continues until its objective has been achieved or abandoned and, where defendant and co-conspirator were arrested before they had disposed of stolen prop­erty, state­ments made by co-conspirator up to time of arrests were admissible. State v. Cornell, 109 Or App 396, 820 P2d 11 (1991), aff’d 314 Or 673, 842 P2d 394 (1992)

Determina­tion as to whether party intended to adopt, agree with or approve of contents of state­ment of an­oth­er is preliminary ques­tion of fact for trial judge under OEC 104(1). State v. Carlson, 311 Or 201, 808 P2d 1002 (1991)

Grand jury pro­ceed­ings are other pro­ceed­ings under this sec­tion and grand jury testimony is admissible as prior inconsistent state­ment, even if pro­ceed­ings are not transcribed. State v. Dickerson, 112 Or App 51, 827 P2d 1354 (1992), Sup Ct review denied

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)

Videotape of reporter’s state­ment attributing allegedly defamatory state­ment to defendant was hearsay not within any excep­tion to rule. Hickey v. Settlemier, 318 Or 196, 864 P2d 372 (1993)

State­ment by husband to wife re­gard­ing existence of con­spir­a­cy was admissible as being in furtherance of con­spir­a­cy since court could find state­ment either bolstered husband’s resolve to engage in plan, was given to obtain wife’s assent or was at­tempt to draw wife into scheme. State v. Harris, 126 Or App 516, 869 P2d 868 (1994), as modified by 127 Or App 613, 872 P2d 445 (1994), Sup Ct review denied

Where state seeks to interfere with parent-child rela­tionship through termina­tion or dependency pro­ceed­ing, interests of child are adverse to state. State ex rel Juvenile Dept. v. Cowens, 143 Or App 68, 922 P2d 1258 (1996), Sup Ct review denied

Where one party asserts that other party failed to pre­vi­ously report fact that would normally be reported if occurring, implied charge of “recent fabrica­tion” exists. Keys v. Nadel, 325 Or 324, 937 P2d 521 (1997)

Where witness lacks memory of events pre­vi­ously testified to, court has discre­tion to treat lack of memory as inconsistency and to allow prior testimony as substantive evidence of events. State v. Staley, 165 Or App 395, 995 P2d 1217 (2000)

State­ment by agent or servant is admissible only if scope of agency is es­tab­lished through proof of job title or responsibilities. Andrews v. R.W. Hays Co., 166 Or App 494, 998 P2d 774 (2000)

Machine-generated in­for­ma­­tion re­gard­ing speed of vehicle is not state­ment issued by declarant. State v. Weber, 172 Or App 704, 19 P3d 378 (2001)

Whether court has jurisdic­tion over charge of con­spir­a­cy is irrelevant for purposes of determining whether state­ment was made by coconspirator of party. State v. Ervin, 193 Or App 41, 88 P3d 296 (2004)

Where ac­tion states multiple claims for relief, state­ment by per­son who is party to one claim for relief is not admissible in claim for relief to which per­son is not party. Phillips v. Rathbone, 194 Or App 90, 93 P3d 835 (2004)

Where defendant is not active participant in conversa­tion, mere listening presence during conversa­tion is insufficient to manifest intent by crim­i­nal defendant to adopt state­ment made during conversa­tion. State v. Clark, 217 Or App 475, 175 P3d 1006 (2008), Sup Ct review denied

State­ment offered “against a party” must be made by party actively engaged in adversary process as adversary party and must be made against party that has declared opposing interest. Depart­ment of Human Services v. G.D.W., 353 Or 25, 292 P3d 548 (2012)

If declarant is pre­vi­ously acquainted with accused, identifying testimony could not “result from” declarant’s percep­tion of the accused, is accusatory and substantive and, therefore, inadmissible hearsay not subject to excep­tion for state­ments of identifica­tion. State v. Hartley, 289 Or App 25, 407 P3d 902 (2017)

Completed Cita­tions (For ORS 41.900 In Permanent Edi­tion)

State v. O’Brien, 6 Or App 34, 485 P2d 434, 486 P2d 592 (1971), aff’d262 Or 30, 496 P2d 191 (1972)

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