Evidence Code

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)

(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.

(Rule 609)

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 casual connection to original conviction. State v. Rowland, 245 Or App 240, 262 P3d 1158 (2011), Sup Ct review denied

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)

Chapter 40

(Generally)

Notes of Decisions

General rule is that polygraph evidence is inadmissible in proceeding governed by Oregon Evidence Code. State v. Brown, 297 Or 404, 687 P2d 751 (1984)

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)

Where state law completely precludes reliable, materially exculpatory evidence, exclusion of that evidence violates Due Process Clauses of United States Constitution. State v. Cazares-Mendez, 233 Or App 310, 227 P3d 172 (2010), aff'd State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491, 256 P3d 104 (2011)

Oregon Evidence Code articulates minimum standards of reliability that apply to many types of evidence for admissibility, including eyewitness identification evidence, and parties must employ code to address admissibility of eyewitness testimony. State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012)

Law Review Citations

59 OLR 43 (1980); 19 WLR 343 (1983)

Chapter 40

Evidence Code

Annotations are listed under the heading "Under former similar statute" if they predate the adoption of the Evidence Code, which went into effect January 1, 1982.


Source

Last accessed
Jun. 26, 2021