Evidence Code

ORS 40.030
Rule 104. Preliminary questions


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.


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.


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.


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


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.


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Jun. 26, 2021