Rule 609. Impeachment by evidence of conviction of crime
- exceptions
Source:
Section 40.355 — Rule 609. Impeachment by evidence of conviction of crime; exceptions, https://www.oregonlegislature.gov/bills_laws/ors/ors040.html.
See also annotations under ORS 45.600 in permanent edition.
Notes of Decisions
Under former similar statute (ORS 45.600)
Introduction of documents other than the judgment order to show conviction of a crime was error because the extraneous documents contained evidence of particular wrongful acts. State v. Akles, 9 Or App 501, 497 P2d 1207 (1972)
The prosecutor may ask a defense witness the names of the crimes of which he has been convicted and the time and place of conviction. State v. Longoria, 17 Or App 1, 520 P2d 912 (1974), Sup Ct review denied
A juvenile witness may not be impeached by evidence that he admitted acts which would be a crime if committed by an adult. State v. Burr, 18 Or App 494, 525 P2d 1067 (1974)
Pendency of an appeal from a criminal conviction does not bar use of the conviction for impeachment. State v. Forsyth, 20 Or App 624, 533 P2d 176 (1975), Sup Ct review denied
The legislature intended by enacting this section to depart from the common law by removing the disqualification of a witness for a crime and by providing that a witness may be impeached by proof of conviction of a crime. Smith v. Durant, 271 Or 643, 534 P2d 955 (1975)
“Crime” means any crime and includes both felonies and misdemeanors. Smity v. Durant, 271 Or 643, 534 P2d 955 (1975)
Evidence of violations of municipal ordinances the violation of which is punishable by incarceration is admissible for impeachment purposes. State v. Bunse, 27 Or App 299, 555 P2d 1269 (1976)
The court has no discretion to deny impeachment of a witness by proof of prior conviction, as distinguished from prior arrest. State v. Bunse, 27 Or App 299, 555 P2d 1269 (1976)
Evidence of prior conviction was admissible notwithstanding that pretrial negotiations statute (ORS 135.435) making statements part of plea discussion inadmissible was applicable under circumstances. State v. Aldridge, 33 Or App 37, 575 P2d 675 (1978)
Trial court did not err in permitting prosecution to question defendant about prior conviction for crime which has since been removed from Criminal Code and which occurred twelve years before this trial. State v. Mack, 37 Or App 487, 587 P2d 516 (1978), Sup Ct review denied
Under Evidence Code
Under this section, admission of evidence of prior burglary convictions was not error even though crimes were similar to that charged and defendant’s testimony was important to fair determination of issues presented. State v. Carden, 58 Or App 655, 650 P2d 97 (1982), Sup Ct review denied
Trial court erred in failing to declare mistrial where: 1) during defendant’s trial on charges of sexual abuse and criminal trespass, prosecutor asked defendant whether he had been convicted of “strong arm rape” in 1972; 2) trial court and prosecutor knew before trial prosecutor did not have certified copy of any conviction; and 3) defendant had, in fact, been convicted of contributing to sexual delinquency of a minor, a misdemeanor not involving false statement and, therefore, not admissible to impeach. State v. Jenkins, 63 Or App 858, 666 P2d 869 (1983)
Where Class C felony conviction is given misdemeanor treatment by sentencing judge, it is still admissible under paragraph (1)(a) of this rule for impeachment purposes because it was punishable as felony. State v. Smith, 67 Or App 311, 677 P2d 715, aff’d 298 Or 173, 691 P2d 89 (1984)
Theft by taking is not a conviction involving false statement within meaning of portion of this section allowing evidence of prior conviction if crime involved false statement; to be admissible offense must include element of consciously misleading true owner or failing to reveal true ownership. State v. Reitz, 75 Or App 82, 705 P2d 762 (1985), Sup Ct review denied
Trial court’s reliance on then newly amended version of this rule did not subject defendant to ex post facto application of law in violation of his constitutional rights, because amendments did not make defendant’s act greater crime or impose greater punishment or permit conviction on lesser or different evidence. State v. Carr, 91 Or App 673, 756 P2d 1263 (1988), Sup Ct review denied; State v. Babb, 91 Or App 676, 756 P2d 1264 (1988), Sup Ct review denied
Amendment of this rule, deleting balancing of probative value against prejudicial effect, makes ORS 40.160 (Rule 403) balancing inapplicable as to prior conviction evidence. State v. Carr, 91 Or App 673, 756 P2d 1263 (1988); State v. Babb, 91 Or App 676, 756 P2d 1264 (1988), Sup Ct review denied; State v. Dick, 91 Or App 294, 754 P2d 628 (1988), Sup Ct review denied; State v. King, 307 Or 332, 768 P2d 391 (1989); State v. Archer, 150 Or App 505, 947 P2d 620 (1997)
Theft in second degree is crime involving dishonesty. State v. Gallant, 307 Or 152, 764 P2d 920 (1988)
Where defendant filed motion for mistrial, did not request limiting instruction and none was given, reference to prior victim and her age by prosecutor was not sufficiently prejudicial to require mistrial. State v. Schwab, 95 Or App 593, 771 P2d 277 (1989)
This rule is applicable in civil cases. Boger v. Norris & Stevens, Inc., 109 Or App 90, 818 P2d 947 (1991), Sup Ct review denied
Where existence of prior conviction was established for impeachment purposes, court erred in preventing disclosure to jury of actual offense committed. State v. Venegas, 124 Or App 253, 862 P2d 529 (1993), Sup Ct review denied
To bring constitutional challenge, defendant must demonstrate how operation of this rule prevented or diminished constitutional protections. State v. Busby, 315 Or 292, 844 P2d 897 (1993)
Trial courts should rule on admissibility of prior crime impeachment evidence as soon as possible after issue is raised. State v. Busby, 315 Or 292, 844 P2d 897 (1993)
Trial court may exclude evidence of prior convictions offered to impeach if it is needless presentation of cumulative evidence, distinguishing State v. King, 307 Or 332, 768 P2d 391 (1989). State v. Pratt, 316 Or 561, 853 P2d 827 (1993)
Exception for municipal or justice court convictions was eliminated under 1986 amendment notwithstanding that ballot measure did not indicate text deletion. State v. Linn, 131 Or App 487, 885 P2d 721 (1994), Sup Ct review denied
Release from confinement occurs when person is released from incarceration, not when person is released from post-prison supervision. State v. Lopez, 241 Or App 670, 250 P3d 984 (2011)
Fifteen year limitation on admissibility of evidence of conviction is measured from date on which witness testifies. State v. Lopez, 241 Or App 670, 250 P3d 984 (2011)
For purpose of determining whether period of more than 15 years has elapsed, phrase “confinement imposed for that conviction” refers to any confinement that has causal connection to original conviction. State v. Rowland, 245 Or App 240, 262 P3d 1158 (2011), Sup Ct review denied
As used in this section, “date of the conviction” that governs whether evidence of prior conviction is within 15-year window of admissibility and may be used to impeach defendant’s testimony is date of valid retrial conviction, in case where defendant had successfully obtained post-conviction relief requiring retrial of original charge. State v. Phillips, 367 Or 594, 482 P3d 52 (2021)
COMPLETED CITATIONS (for ORS 45.600 in permanent edition): State v. Howard, 6 Or App 230, 486 P2d 1301 (1971), Sup Ct review denied
Law Review Citations
Under former similar statute (ORS 45.600)
54 OLR 431-442 (1975)
Under Evidence Code
28 WLR 127 (1991)
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