ORS 40.170
Rule 404. Character evidence

  • evidence of other crimes, wrongs or acts


Evidence of a person’s character or trait of character is admissible when it is an essential element of a charge, claim or defense.


Evidence of a person’s character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:


Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;


Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same or evidence of a character trait of peacefulness of the victim offered by the prosecution to rebut evidence that the victim was the first aggressor;


Evidence of the character of a witness, as provided in ORS 40.345 (Rule 607. Who may impeach) to 40.355 (Rule 609. Impeachment by evidence of conviction of crime); or


Evidence of the character of a party for violent behavior offered in a civil assault and battery case when self-defense is pleaded and there is evidence to support such defense.


Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.


In criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by:


ORS 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 Withdrawn plea or statement not admissible), 40.205 (Rule 411.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) and, to the extent required by the United States Constitution or the Oregon Constitution, ORS 40.160 (Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion or undue delay);


The rules of evidence relating to privilege and hearsay;


The Oregon Constitution; and


The United States Constitution. [1981 c.892 §24; 1997 c.313 §29]

Source: Section 40.170 — Rule 404. Character evidence; evidence of other crimes, wrongs or acts, https://www.­oregonlegislature.­gov/bills_laws/ors/ors040.­html.

Notes of Decisions

Evidence of prior incidents during which police told defendant that his neighbors could see him exposing himself in his living room window was properly admitted to rebut defendant’s contention that he did not know he could be seen. State v. Louis, 296 Or 57, 672 P2d 708 (1983)

“Other crimes” evidence that defendant was present when state witness manufactured illegal drug in defendant’s home was admissible where defendant’s testimony minimized extent of relationship with witness, who testified defendant confided in him regarding defendant’s arson plans. State v. Gardner, 67 Or App 404, 679 P2d 306 (1984), Sup Ct review denied

Suppression of evidence tying jacket worn by perpetrator of crime to defendant as perpetrator of other offenses because state did not need evidence and could get jacket in evidence in another manner without risk of prejudice inherent in “other crimes” evidence was erroneous. State v. Browder, 69 Or App 564, 687 P2d 168 (1984), Sup Ct review denied

Under circumstances of case, admission of evidence of defendant’s prior sex acts was proper. State v. Fears, 69 Or App 606, 688 P2d 88 (1984), Sup Ct review denied

Where defendant’s possession of key to another stolen vehicle was introduced as basis of inference that defendant knew vehicle in which he was riding was taken and being used unlawfully, evidence of defendant’s possession of key was properly admitted. State v. Phelps, 73 Or App 68, 698 P2d 43 (1985)

Defendant, charged with first degree assault, who testified concerning earlier altercations with victim to show victim’s aggressiveness did not, by testimony of a specific instance of peaceful conduct, put his character for peacefulness in issue. State v. Peacock, 75 Or App 217, 706 P2d 982 (1985)

It was reversible error to permit witness to testify as to alleged prior act of sodomy by defendant where testimony was relevant only to defendant’s propensity to commit current alleged act of sodomy. State v. Bovee, 75 Or App 544, 706 P2d 1005 (1985)

Evidence of defendant’s prior conviction for rape was relevant in trial on charge of attempted kidnapping to show defendant’s criminal intent. State v. Morgan, 80 Or App 747, 724 P2d 334 (1986), Sup Ct review denied

In evaluating prior crime evidence on issue of intent or absence of mistake, court should determine: whether presently charged act requires proof of intent, whether prior act required intent, whether victim in prior act was same victim or in same class as victim in present case, whether prior act was same as or similar to acts in present crime, and whether probative value of evidence outweighs Rule 403 concerns. State v. Harris, 81 Or App 574, 726 P2d 943 (1986), Sup Ct review denied; State v. Johns, 301 Or 535, 725 P2d 312 (1986)

Court has discretion to admit prior crime evidence under any theory of logical relevance other than solely to prove both character of person and that person acted in conformity therewith. State v. Johns, 301 Or 535, 725 P2d 312 (1986); State v. Bolt, 108 Or App 746, 817 P2d 1322 (1991); State v. Herzog, 125 Or App 10, 864 P2d 1362 (1993), aff’d 324 Or 294, 924 P2d 817 (1996)

“Character” refers to disposition or propensity to commit certain crimes, wrongs or acts. State v. Johns, 301 Or 535, 725 P2d 312 (1986)

Where state offered hearsay statement which implied defendant assaulted someone other than named victim during same incident, trial court did not err in admitting statement because it was not offered solely to prove defendant’s character or that he acted in conformity with that character but as means of identifying defendant as participant in crime. State v. Ferguson, 84 Or App 565, 735 P2d 3 (1987)

Where officer saw defendant drive during same period of suspension but on later occasion than that which formed basis of trial officer’s testimony, that fact was admissible to rebut defense witness’s testimony or cross-examination that defendant did not drive during that period, because testimony was not offered to establish that defendant drove car, but to impeach credibility of defense witness. State v. Smith, 86 Or App 239, 739 P2d 577 (1987)

Defendant may introduce evidence concerning character trait only if it is trait pertinent to offense charged. State v. Bailey, 87 Or App 664, 743 P2d 1123 (1987)

Where plaintiff in defamation action sought damages for harm to his business reputation, plaintiff did not put his business character in issue within meaning of this section and evidence of specific instances of plaintiff’s business misconduct was not admissible. Shirley v. Freunscht, 303 Or 234, 735 P2d 600 (1987)

“Other crimes evidence” offered to prove identity must show such similarity, in manner or means, as to constitute distinctive “signature” of perpetrator, but “signature” crime need not be composed solely of unique or novel elements. State v. Bernson, 93 Or App 115, 760 P2d 1362 (1988)

Evidence of defendant’s encounters with child victim which occurred after alleged rape admissible as relevant to show why child had not reported original sexual assault. State v. Zybach, 308 Or 96, 775 P2d 318 (1989)

Evidence of prior violence by plaintiff’s husband directed against persons other than plaintiff was not relevant to show that she feared him and testified in accordance with his version of events. James v. General Motors of Canada, Ltd., 101 Or App 138, 790 P2d 8 (1990), Sup Ct review denied

Admission of testimony that defendant had been “out of line” with friend of witness on prior occasion did not prejudice defendant because it was not reasonable possibility that jury inferred from testimony that girlfriend of witness had been raped by defendant. State v. Smith, 101 Or App 483, 791 P2d 500 (1990)

Where state moved to allow testimony by victim about sexual contacts with defendant on several occasions, evidence was admissible to demonstrate sexual predisposition of defendant for this particular victim, but not to demonstrate that defendant had character trait or propensity to engage in sexual misconduct generally. State v. McKay, 309 Or 305, 787 P2d 479 (1990)

Where neither prosecutor’s question nor description by witness of defendant in response suggested anything concerning defendant’s propensity to engage in certain kinds of behavior, his disposition, or his general personality traits, testimony was not character evidence or uncharged misconduct evidence. State v. Nefstad, 309 Or 523, 789 P2d 1326 (1990)

To degree that future dangerousness depends on character, defendant’s character has been placed “in issue” and evidence of pertinent specific instances of conduct is admissible. State v. Montez, 309 Or 564, 789 P2d 1352 (1990)

In trespass case, evidence of dispute between defendant and another neighbor and evidence of similar damage to that neighbor’s land was admissible to show defendant’s motive, opportunity, intent, preparation, plan or absence of mistake or accident. Gibson v. Tzantarmas, 108 Or App 270, 815 P2d 221 (1991)

Lawsuits irrelevant to present case served to suggest that defendant is litigious or person of bad character, thus prejudicing defendant’s right to have jury determine liability and damages only by relevant facts. Gibson v. Tzantarmas, 108 Or App 270, 815 P2d 221 (1991)

Trial court properly admitted evidence in aggravated murder case of prior crime by defendant where numerous points of similarity existed between the two crimes, few dissimilarities existed, and distinctiveness or unusual characteristics of modus earmarked the two crimes as handiwork of defendant. State v. Pinnell, 311 Or 98, 806 P2d 110 (1991)

Evidence regarding sawed-off shotgun used in prior robbery to which defendant confessed was relevant in defendant’s trial for murder committed during course of robbery where shotgun’s appearance was so distinctive that its use instantly earmarked both robberies as handiwork of same person. State v. Walton, 311 Or 223, 809 P2d 81 (1991)

In defendant’s trial for attempted rape and attempted kidnapping, evidence of prior bad acts involving picking up girls in same area was sufficiently similar to allow jury to infer defendant intended to attempt kidnap and rape and was probative to show motive or plan. State v. Painter, 113 Or App 337, 833 P2d 303 (1992), Sup Ct review denied

Where evidence was insufficient to support determination that uncharged acts were sufficiently similar among themselves or to charged offenses to support rational inference of distinctiveness probative of identity to crimes charged, evidence of three prior bad acts was not relevant to prove person who committed them also committed charged offenses. State v. Westby, 117 Or App 14, 843 P2d 973 (1992), as modified by 124 Or App 265, 862 P2d 1318 (1993), Sup Ct review denied

Evidence of other crimes is admissible if independently relevant for noncharacter purpose, if sufficient proof shows uncharged misconduct was committed by defendant and if probative value of uncharged misconduct is not substantially outweighed by OEC 403 considerations. State v. Johnson, 313 Or 189, 832 P2d 443 (1992); State v. Langley, 314 Or 511, 840 P2d 691 (1992); State v. Middleton, 131 Or App 275, 884 P2d 873 (1994)

Evidence in rape case that defendant had engaged in sexual intercourse with adult victim since victim was child was admissible to show why actions of victim did not constitute consent. State v. Bartley, 121 Or App 301, 854 P2d 996 (1993), Sup Ct review denied

Exclusion of character evidence applies to prior bad acts of third parties, not just defendant or victim. State v. Bockorny, 125 Or App 479, 866 P2d 1230 (1993); 126 Or App 504, 869 P2d 349 (1994), Sup Ct review denied

Evidence of defendant’s prior acts of physical abuse toward child admissible in kidnapping trial to show intent and motive. State v. Barkley, 315 Or 420, 846 P2d 390 (1993)

Expert testimony comparing character traits of defendant with typical criminal character traits was scientific evidence subject to requirement of establishing probative value. State v. Lawson, 127 Or App 392, 872 P2d 986 (1994), Sup Ct review denied

Prior bad acts by victim were admissible to show defendant had reasonable belief supporting claim of self-defense. State v. Lunow, 131 Or App 429, 885 P2d 731 (1994)

Evidence of series of identical acts before and after murder was admissible under “doctrine of chances” where concealment of identity of person committing acts was alleged motive for murder. State v. Wieland, 131 Or App 582, 887 P2d 368 (1994), Sup Ct review denied

In considering whether similar prior act is criminal signature, court must weigh both similarities and dissimilarities between acts. State v. Rinkin, 141 Or App 355, 917 P2d 1035 (1996)

Where offer of proof contains both admissible and inadmissible material, court may reject entire offer. State v. Thomas, 149 Or App 557, 945 P2d 1056 (1997)

Where defendant was convicted of first crime, time lapse and geographic distance between that crime and later crimes are not significant factors in showing signature behavior. State v. Barnum, 157 Or App 68, 970 P2d 1214 (1998), aff’d 333 Or 297, 39 P3d 178 (2002)

Specific instances of misconduct are admissible to show state of mind of actor. State v. Stevens, 328 Or 116, 970 P2d 215 (1998)

Provision making relevant evidence admissible except as provided by constitution or certain evidentiary rules does not change traditional standards for determining relevance of evidence showing propensity to commit crime. State v. Dunn, 160 Or App 422, 981 P2d 809 (1999), Sup Ct review denied

Exception for signature-crime evidence pertains only to establishing who committed undisputed crime, not whether crime actually occurred. State v. Baughman, 164 Or App 715, 995 P2d 551 (2000)

Where malice was material element of crime, defendant’s testimony regarding nonmalicious motive for behavior did not constitute character evidence. State v. Dan, 172 Or App 645, 20 P3d 829 (2001)

Defendant’s propensity to act in sexually proper manner in all varying situations of life is trait of character. State v. Enakiev, 175 Or App 589, 29 P3d 1160 (2001)

Where evidence is admissible under some but not all of grounds specified within rule, and defendant does not cite specific grounds within rule allowing admission of evidence, ruling of inadmissibility is not error. State v. Ryel, 182 Or App 423, 51 P3d 8 (2002), Sup Ct review denied

Where defendant is alleged to have acted recklessly, fact that prior similar act by defendant had adverse consequences is relevant for inferring that defendant had heightened subjective awareness of risk. State v. Hardman, 196 Or App 522, 102 P3d 722 (2004)

1997 amendment limiting trial court authority to exclude relevant evidence may not be applied if trial is for crime committed prior to effective date of amendment. State v. Shaw, 338 Or 586, 113 P3d 898 (2005)

Essential question is not whether evidence of prior bad acts fits within expressly mentioned category of exceptions, but whether and how evidence is logically relevant to noncharacter issue in case. State v. Johnson, 340 Or 319, 131 P3d 173 (2006)

Provision authorizing submission of evidence of other crimes, wrongs or acts committed by defendant does not violate federal due process. State v. Moore/Coen, 349 Or 371, 245 P3d 101 (2010)

Applicability of provision governing admissibility of evidence of other crimes, wrongs or acts is not limited to conduct of criminal defendant. State v. Prange, 247 Or App 254, 268 P3d 749 (2011)

In prosecution for child sexual abuse under ORS 163.427, admission of “other crimes evidence” under this rule, offered to prove defendant’s sexual purpose, which is element of charged crimes, requires court to determine whether risk of unfair prejudice posed by evidence outweighs probative value of evidence under OEC 403 (ORS 40.160). State v. Williams, 357 Or 1, 346 P3d 455 (2015)

Legislature intended subsection 4 of this rule to supersede subsection 3 in criminal case except to extent required by state or federal constitution. State v. Williams, 357 Or 1, 346 P3d 455 (2015)

When read with ORS 40.160 (Rule 403), trial court may exclude evidence when, in court’s discretion, court determines that probative value of evidence is substantially outweighed by danger of unfair prejudice, and trial court must exclude evidence, as matter of law, that would render trial fundamentally unfair and violate Due Process Clause. State v. Baughman, 361 Or 386, 393 P3d 1132 (2017)

For prior acts to be admissible to prove motive based on class of victim, motive must be based on victims’ membership in same class. State v. Tena, 362 Or 514, 412 P3d 175 (2018)

Prior acts may be admissible under doctrine of chances to demonstrate that act occurred intentionally, not whether it occurred it all. State v. Tena, 362 Or 514, 412 P3d 175 (2018)

Evidence that defendant lashed out in anger when defendant did not get what defendant wanted in committing criminal mischief cannot be used as propensity evidence to prove assault resulting from different aggravation. State v. Cardona, 295 Or App 56, 433 P3d 423 (2018)

Evidence pertaining to defendant’s 1997 conviction was not admissible for purpose of showing absence of mistake or intent, if theory for which evidence is offered employs propensity reasoning to support admitting evidence. State v. Terry, 309 Or App 459, 482 P3d 105 (2021)

Evidence may be admitted under propensity theory of relevance if court, in exercising its discretion, takes into account factors that include: 1) similarity of uncharged misconduct; 2) temporal proximity of uncharged acts to charged acts; 3) frequency of prior acts; 4) existence or nonexistence of intervening circumstances; and 5) need for evidence in addition to testimony. State v. Terry, 309 Or App 459, 482 P3d 105 (2021)

Other-acts evidence of defendant having committed rape, where defendant confessed defendant wanted to “do the same” to murder victim, was inadmissible as evidence of defendant’s motive for attacking murder victim, because other-acts evidence required impermissible character-based reasoning to connect it with charged offense. State v. Tinoco-Camarena, 311 Or App 295, 489 P3d 572 (2021), Sup Ct review denied

Court may not admit evidence of uncharged misconduct under doctrine of chances for purpose of arguing that, because defendant engaged in deliberate conduct before, it is likely that defendant engaged in it again during charged incident. State v. Skillicorn, 367 Or 464, 479 P3d 254 (2021)

Statistical reasoning used by doctrine of chances is insufficient to prove relevancy of evidence, and proponent must articulate chain of inferences that makes evidence relevant to purpose and explain how chain does not depend on actor’s character. State v. Jackson, 368 Or 705, 498 P3d 788 (2021)

Law Review Citations

25 WLR 829 (1989); 29 WLR 927 (1993); 78 OLR 315 (1999); 52 WLR 291 (2016)

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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