ORS 40.030
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]

Source: Section 40.030 — Rule 104. Preliminary questions, https://www.­oregonlegislature.­gov/bills_laws/ors/ors040.­html.

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)

40.010
Rule 100. Short title 40.015
Rule 101. Applicability of Oregon Evidence Code 40.020
Rule 102. Purpose and construction 40.025
Rule 103. Rulings on evidence 40.030
Rule 104. Preliminary questions 40.035
Rule 105. Limited admissibility 40.040
Rule 106. When part of transaction proved, whole admissible 40.060
Rule 201(a). Scope 40.065
Rule 201(b). Kinds of facts 40.070
Rules 201(c) and 201(d). When mandatory or discretionary 40.075
Rule 201(e). Opportunity to be heard 40.080
Rule 201(f). Time of taking notice 40.085
Rule 201(g). Instructing the jury 40.090
Rule 202. Law that is judicially noticed 40.105
Rule 305. Allocation of the burden of persuasion 40.110
Rule 306. Instructions on the burden of persuasion 40.115
Rule 307. Allocation of the burden of producing evidence 40.120
Rule 308. Presumptions in civil proceedings 40.125
Rule 309. Presumptions in criminal proceedings 40.130
Rule 310. Conflicting presumptions 40.135
Rule 311. Presumptions 40.150
Rule 401. Definition of “relevant evidence.” 40.155
Rule 402. Relevant evidence generally admissible 40.160
Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion or undue delay 40.170
Rule 404. Character evidence 40.172
Rule 404-1. Pattern, practice or history of abuse 40.175
Rule 405. Methods of proving character 40.180
Rule 406. Habit 40.185
Rule 407. Subsequent remedial measures 40.190
Rule 408. Compromise and offers to compromise 40.195
Rule 409. Payment of medical and similar expenses 40.200
Rule 410. Withdrawn plea or statement not admissible 40.205
Rule 411. Liability insurance 40.210
Rule 412. Sex offense cases 40.211
Rule 412-1. Evidence not admissible in civil proceeding involving sexual misconduct 40.215
Rule 413. Measures and assessments intended to minimize impact of or plan for natural disaster 40.225
Rule 503. Lawyer-client privilege 40.227
Rule 503-1. Right of client to communicate with lawyer 40.230
Rule 504. Psychotherapist-patient privilege 40.235
Rule 504-1. Physician-patient privilege 40.240
Rule 504-2. Nurse-patient privilege 40.245
Rule 504-3. School employee-student privilege 40.250
Rule 504-4. Regulated social worker-client privilege 40.252
Rule 504-5. Communications revealing intent to commit certain crimes 40.255
Rule 505. Spousal privilege 40.260
Rule 506. Member of clergy-penitent privilege 40.262
Rule 507. Counselor-client privilege 40.264
Rule 507-1. Certified advocate-victim privilege 40.265
Rule 508a. Stenographer-employer privilege 40.270
Rule 509. Public officer privilege 40.272
Rule 509-1. Sign language interpreter privilege 40.273
Rule 509-2. Non-English-speaking person-interpreter privilege 40.274
Rule 509-3. Legislative branch offsite process counselor privilege 40.275
Rule 510. Identity of informer 40.280
Rule 511. Waiver of privilege by voluntary disclosure 40.285
Rule 512. Privileged matter disclosed under compulsion or without opportunity to claim privilege 40.290
Rule 513. Comment upon or inference from claim of privilege 40.295
Rule 514. Effect on existing privileges 40.310
Rule 601. General rule of competency 40.315
Rule 602. Lack of personal knowledge 40.320
Rule 603. Oath or affirmation 40.325
Rule 604. Interpreters 40.330
Rule 605. Competency of judge as witness 40.335
Rule 606. Competency of juror as witness 40.345
Rule 607. Who may impeach 40.350
Rule 608. Evidence of character and conduct of witness 40.355
Rule 609. Impeachment by evidence of conviction of crime 40.360
Rule 609-1. Impeachment for bias or interest 40.365
Rule 610. Religious beliefs or opinions 40.370
Rule 611. Mode and order of interrogation and presentation 40.375
Rule 612. Writing used to refresh memory 40.380
Rule 613. Prior statements of witnesses 40.385
Rule 615. Exclusion of witnesses 40.405
Rule 701. Opinion testimony by lay witnesses 40.410
Rule 702. Testimony by experts 40.415
Rule 703. Bases of opinion testimony by experts 40.420
Rule 704. Opinion on ultimate issue 40.425
Rule 705. Disclosure of fact or data underlying expert opinion 40.430
Rule 706. Impeachment of expert witness by learned treatise 40.450
Rule 801. Definitions for ORS 40.450 to 40.475 40.455
Rule 802. Hearsay rule 40.460
Rule 803. Hearsay exceptions 40.465
Rule 804. Hearsay exceptions when the declarant is unavailable 40.470
Rule 805. Hearsay within hearsay 40.475
Rule 806. Attacking and supporting credibility of declarant 40.505
Rule 901. Requirement of authentication or identification 40.510
Rule 902. Self-authentication 40.515
Rule 903. Subscribing witness’ testimony unnecessary 40.550
Rule 1001. Definitions for ORS 40.550 to 40.585 40.555
Rule 1002. Requirement of original 40.560
Rule 1003. Admissibility of duplicates 40.562
Rule 1003-1. Admissibility of reproduction 40.565
Rule 1004. Admissibility of other evidence of contents 40.570
Rule 1005. Public records 40.575
Rule 1006. Summaries 40.580
Rule 1007. Testimony or written admission of party 40.585
Rule 1008. Functions of court and jury
Green check means up to date. Up to date

Current through early 2024

§ 40.030’s source at oregon​.gov