2015 ORS 40.170¹
Rule 404. Character evidence
  • evidence of other crimes, wrongs or acts

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

(2) 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:

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

(b) 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;

(c) 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

(d) 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.

(3) 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.

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

(a) 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 Withdrawn plea or statement not admissible), 40.205 (Rule 411.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);

(b) The rules of evidence relating to privilege and hearsay;

(c) The Oregon Constitution; and

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

(Rule 404)

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 (Sexual abuse in the first degree), 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 (Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion or undue delay)). 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)

Law Review Cita­tions

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

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.


1 Legislative Counsel Committee, CHAPTER 40—Evidence Code, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors040.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 40, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano040.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.