ORS 40.355
Rule 609. Impeachment by evidence of conviction of crime

  • exceptions

(1)

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record, but only if the crime:

(a)

Was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted; or

(b)

Involved false statement or dishonesty.

(2)

Intentionally left blank —Ed.

(a)

If a defendant is charged with one or more of the crimes listed in paragraph (b) of this subsection, and the defendant is a witness, evidence that the defendant has been convicted of committing one or more of the following crimes against a family or household member, as defined in ORS 135.230 (Definitions for ORS 135.230 to 135.290), may be elicited from the defendant, or established by public record, and admitted into evidence for the purpose of attacking the credibility of the defendant:

(A)

Assault in the fourth degree under ORS 163.160 (Assault in the fourth degree).

(B)

Menacing under ORS 163.190 (Menacing).

(C)

Harassment under ORS 166.065 (Harassment).

(D)

Attempted assault in the fourth degree under ORS 163.160 (Assault in the fourth degree) (1).

(E)

Attempted assault in the fourth degree under ORS 163.160 (Assault in the fourth degree) (3).

(F)

Strangulation under ORS 163.187 (Strangulation).

(G)

The statutory counterpart in another jurisdiction to a crime listed in this paragraph.

(b)

Evidence may be admitted into evidence for the purpose of attacking the credibility of a defendant under the provisions of this subsection only if the defendant is charged with committing one or more of the following crimes against a family or household member, as defined in ORS 135.230 (Definitions for ORS 135.230 to 135.290):

(A)

Aggravated murder under ORS 163.095 (“Aggravated murder” defined).

(B)

Murder in the first degree under ORS 163.107 (Murder in the first degree).

(C)

Murder in the second degree under ORS 163.115 (Murder in the second degree).

(D)

Manslaughter in the first degree under ORS 163.118 (Manslaughter in the first degree).

(E)

Manslaughter in the second degree under ORS 163.125 (Manslaughter in the second degree).

(F)

Assault in the first degree under ORS 163.185 (Assault in the first degree).

(G)

Assault in the second degree under ORS 163.175 (Assault in the second degree).

(H)

Assault in the third degree under ORS 163.165 (Assault in the third degree).

(I)

Assault in the fourth degree under ORS 163.160 (Assault in the fourth degree).

(J)

Rape in the first degree under ORS 163.375 (Rape in the first degree) (1)(a).

(K)

Sodomy in the first degree under ORS 163.405 (Sodomy in the first degree) (1)(a).

(L)

Unlawful sexual penetration in the first degree under ORS 163.411 (Unlawful sexual penetration in the first degree) (1)(a).

(M)

Sexual abuse in the first degree under ORS 163.427 (Sexual abuse in the first degree) (1)(a)(B).

(N)

Kidnapping in the first degree under ORS 163.235 (Kidnapping in the first degree).

(O)

Kidnapping in the second degree under ORS 163.225 (Kidnapping in the second degree).

(P)

Burglary in the first degree under ORS 164.225 (Burglary in the first degree).

(Q)

Coercion under ORS 163.275 (Coercion).

(R)

Stalking under ORS 163.732 (Stalking).

(S)

Violating a court’s stalking protective order under ORS 163.750 (Violating a court’s stalking protective order).

(T)

Menacing under ORS 163.190 (Menacing).

(U)

Harassment under ORS 166.065 (Harassment).

(V)

Strangulation under ORS 163.187 (Strangulation).

(W)

Attempting to commit a crime listed in this paragraph.

(3)

Evidence of a conviction under this section is not admissible if:

(a)

A period of more than 15 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date; or

(b)

The conviction has been expunged by pardon, reversed, set aside or otherwise rendered nugatory.

(4)

When the credibility of a witness is attacked by evidence that the witness has been convicted of a crime, the witness shall be allowed to explain briefly the circumstances of the crime or former conviction; once the witness explains the circumstances, the opposing side shall have the opportunity to rebut the explanation.

(5)

The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

(6)

An adjudication by a juvenile court that a child is within its jurisdiction is not a conviction of a crime.

(7)

A conviction of any of the statutory counterparts of offenses designated as violations as described in ORS 153.008 (Violations described) may not be used to impeach the character of a witness in any criminal or civil action or proceeding. [1981 c.892 §53; 1987 c.2 §9; subsection (6) of 1993 Edition enacted as 1993 c.379 §4; 1999 c.1051 §121; 2001 c.714 §1; 2003 c.577 §3; 2009 c.56 §1; 2019 c.635 §6]
Note: 40.355 (Rule 609. Impeachment by evidence of conviction of crime) (7) was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 40 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

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)

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
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