ORS 40.450
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:


A “statement” is:


An oral or written assertion; or


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


A “declarant” is a person who makes a statement.


“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.


A statement is not hearsay if:


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


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;


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;


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


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


The statement is offered against a party and is:


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


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


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


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


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


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]

Source: Section 40.450 — Rule 801. Definitions for ORS 40.450 to 40.475, https://www.­oregonlegislature.­gov/bills_laws/ors/ors040.­html.

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 or that defendant sold stock in violation of ORS 59.115 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)

Rule 100. Short title
Rule 101. Applicability of Oregon Evidence Code
Rule 102. Purpose and construction
Rule 103. Rulings on evidence
Rule 104. Preliminary questions
Rule 105. Limited admissibility
Rule 106. When part of transaction proved, whole admissible
Rule 201(a). Scope
Rule 201(b). Kinds of facts
Rules 201(c) and 201(d). When mandatory or discretionary
Rule 201(e). Opportunity to be heard
Rule 201(f). Time of taking notice
Rule 201(g). Instructing the jury
Rule 202. Law that is judicially noticed
Rule 305. Allocation of the burden of persuasion
Rule 306. Instructions on the burden of persuasion
Rule 307. Allocation of the burden of producing evidence
Rule 308. Presumptions in civil proceedings
Rule 309. Presumptions in criminal proceedings
Rule 310. Conflicting presumptions
Rule 311. Presumptions
Rule 401. Definition of “relevant evidence.”
Rule 402. Relevant evidence generally admissible
Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion or undue delay
Rule 404. Character evidence
Rule 404-1. Pattern, practice or history of abuse
Rule 405. Methods of proving character
Rule 406. Habit
Rule 407. Subsequent remedial measures
Rule 408. Compromise and offers to compromise
Rule 409. Payment of medical and similar expenses
Rule 410. Withdrawn plea or statement not admissible
Rule 411. Liability insurance
Rule 412. Sex offense cases
Rule 412-1. Evidence not admissible in civil proceeding involving sexual misconduct
Rule 413. Measures and assessments intended to minimize impact of or plan for natural disaster
Rule 503. Lawyer-client privilege
Rule 503-1. Right of client to communicate with lawyer
Rule 504. Psychotherapist-patient privilege
Rule 504-1. Physician-patient privilege
Rule 504-2. Nurse-patient privilege
Rule 504-3. School employee-student privilege
Rule 504-4. Regulated social worker-client privilege
Rule 504-5. Communications revealing intent to commit certain crimes
Rule 505. Spousal privilege
Rule 506. Member of clergy-penitent privilege
Rule 507. Counselor-client privilege
Rule 507-1. Certified advocate-victim privilege
Rule 508a. Stenographer-employer privilege
Rule 509. Public officer privilege
Rule 509-1. Sign language interpreter privilege
Rule 509-2. Non-English-speaking person-interpreter privilege
Rule 509-3. Legislative branch offsite process counselor privilege
Rule 510. Identity of informer
Rule 511. Waiver of privilege by voluntary disclosure
Rule 512. Privileged matter disclosed under compulsion or without opportunity to claim privilege
Rule 513. Comment upon or inference from claim of privilege
Rule 514. Effect on existing privileges
Rule 601. General rule of competency
Rule 602. Lack of personal knowledge
Rule 603. Oath or affirmation
Rule 604. Interpreters
Rule 605. Competency of judge as witness
Rule 606. Competency of juror as witness
Rule 607. Who may impeach
Rule 608. Evidence of character and conduct of witness
Rule 609. Impeachment by evidence of conviction of crime
Rule 609-1. Impeachment for bias or interest
Rule 610. Religious beliefs or opinions
Rule 611. Mode and order of interrogation and presentation
Rule 612. Writing used to refresh memory
Rule 613. Prior statements of witnesses
Rule 615. Exclusion of witnesses
Rule 701. Opinion testimony by lay witnesses
Rule 702. Testimony by experts
Rule 703. Bases of opinion testimony by experts
Rule 704. Opinion on ultimate issue
Rule 705. Disclosure of fact or data underlying expert opinion
Rule 706. Impeachment of expert witness by learned treatise
Rule 801. Definitions for ORS 40.450 to 40.475
Rule 802. Hearsay rule
Rule 803. Hearsay exceptions
Rule 804. Hearsay exceptions when the declarant is unavailable
Rule 805. Hearsay within hearsay
Rule 806. Attacking and supporting credibility of declarant
Rule 901. Requirement of authentication or identification
Rule 902. Self-authentication
Rule 903. Subscribing witness’ testimony unnecessary
Rule 1001. Definitions for ORS 40.550 to 40.585
Rule 1002. Requirement of original
Rule 1003. Admissibility of duplicates
Rule 1003-1. Admissibility of reproduction
Rule 1004. Admissibility of other evidence of contents
Rule 1005. Public records
Rule 1006. Summaries
Rule 1007. Testimony or written admission of party
Rule 1008. Functions of court and jury
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