ORS 40.350¹
Rule 608. Evidence of character and conduct of witness

(1) The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but:

(a) The evidence may refer only to character for truthfulness or untruthfulness; and

(b) Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(2) Specific instances of the conduct of a witness, for the purpose of attacking or supporting the credibility of the witness, other than conviction of crime as provided in ORS 40.355 (Rule 609. Impeachment by evidence of conviction of crime), may not be proved by extrinsic evidence. Further, such specific instances of conduct may not, even if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness. [1981 c.892 §52]

(Rule 608)

See also annota­tions under ORS 45.590, 45.600 and 45.620 in permanent edi­tion.

Notes of Decisions

Under Former Similar Statute (Ors 45.590)

General use of ques­tions as to drug use should not be allowed to impeach a witness, but may be used to discover if the witness was under the influence of drugs at the time to which she is testifying. State v. Goodin, 8 Or App 15, 492 P2d 287 (1971), Sup Ct review denied

Party may not use prior inconsistent state­ment to impeach own witness unless witness gives testimony prejudicial to party. State v. Ward, 16 Or App 162, 517 P2d 1069 (1974)

This sec­tion does not prohibit a party from impeaching a witness it has produced by showing bias or interest. State v. Estlick, 269 Or 75, 523 P2d 1029 (1974)

Where party at­tempts to use prior inconsistent state­ment to impeach own witness on collateral matter, and witness denies making state­ment, party must accept answer of witness. State v. Jones, 279 Or 55, 566 P2d 867 (1977)

Defendant may not call state’s witness as an adverse witness solely for the purpose of impeach­ment. State v. Hill, 32 Or App 299, 573 P2d 1273 (1978)

Party is allowed to introduce evidence discreditable to witness where evidence is not introduced for purpose of discrediting witness testimony. State v. Gilbert, 282 Or 309, 577 P2d 939 (1978)

Surprise is not prerequisite to impeach­ment of own witness, but is factor in determining whether party has suffered prejudice allowing impeach­ment. State v. Mills, 39 Or App 85, 591 P2d 396 (1979)

Under Former Similar Statute (Ors 45.600)

An individual may be cross-examined about specific acts of crime for the purpose of showing his bias without violating this sec­tion. State v. Goodin, 8 Or App 15, 492 P2d 287 (1971), Sup Ct review denied

Evidence obtained from an invalid search which is inadmissible as direct evidence can not be used to impeach the credibility of the defendant. State v. Spunaugle, 11 Or App 583, 504 P2d 756 (1972)

Right to impeach adverse witness arises from fact that witness has testified, regardless of length or content of testimony. State v. Lawson, 53 Or App 232, 631 P2d 816 (1981)

Under Former Similar Statute (Ors 45.620)

State may buttress credibility of accomplice-witness during case in chief since accomplice is impeached as matter of law under [former] ORS 17.250 and [former] ORS 136.550. State v. Estlick, 14 Or App 288, 511 P2d 1250 (1973), aff’d 269 Or 75, 523 P2d 1029 (1974)

Testimony that merely contradicts testimony of an­oth­er witness is not attack on credibility of that witness. State v. Allen, 276 Or 527, 555 P2d 443 (1976)

Under Evidence Code

Evidence of specific instances of con­duct by defendant was admissible for purpose of contradicting direct testimony of defendant on specific matter. State v. Schober, 67 Or App 385, 678 P2d 746 (1984)

Expert testimony, made before victim testified, that sex abuse victim was able to perceive and relate accurately a sexual contact was not opinion as to whether victim would testify truthfully and was admissible evidence relating to witness’ credibility. State v. Padilla, 74 Or App 676, 704 P2d 524 (1985)

Trial court did not err in forbidding defendant to cross-examine victim about other alleged false accusa­tions of sexual abuse because this rule forbids any inquiry or cross-examina­tion into specific instances of con­duct for impeach­ment purposes and specific instances of con­duct include false state­ments. State v. LeClair, 83 Or App 121, 730 P2d 609 (1986), Sup Ct review denied

Assuming defendant’s wife was opining that victim, as witness, was presently lying, such testimony was not equivalent of testifying as to opinion of character of victim for truthfulness. State v. Carr, 302 Or 20, 725 P2d 1287 (1986)

Psychotherapist may not render opinion on credibility of witness. State v. Milbradt, 305 Or 621, 756 P2d 628 (1988); State v. Remme, 173 Or App 546, 23 P3d 374 (2001)

Where this sec­tion forbids inquiry or cross-examina­tion into specific incidents of con­duct in order to impeach, trial court did not err when it excluded evidence that victim made allegedly false accusa­tions of sexual miscon­duct against an­oth­er man. State v. Hendricks, 101 Or App 469, 791 P2d 139 (1990), Sup Ct review denied

Police of­fi­cer’s assess­ment of reliability of in­for­ma­­tion supplied by informant is inadmissible com­ment on informant’s credibility. State v. Wyatt, 102 Or App 413, 794 P2d 1243 (1990); State v. Walker, 140 Or App 472, 915 P2d 1039 (1996)

Statute limits admissibility of evidence of other crimes, wrongs or acts to attack credibility of witness, but such evidence may be introduced for other purposes. State v. Bolt, 108 Or App 746, 817 P2d 1322 (1991)

In per­sonal injury ac­tion, defendant’s state­ment to workers’ compensa­tion official investigating accident that he did not know plaintiff was not admissible to show that defendant putatively had tendency to be untruthful. Mulvahill v. Huddleston, 110 Or App 405, 822 P2d 754 (1991)

Trial court properly excluded psychiatrist’s testimony that defendant told truth about not remembering stabbing. State v. Wille, 115 Or App 47, 839 P2d 712 (1992), aff’d 317 Or 487, 858 P2d 128 (1993)

When witness had little recent per­sonal contact with victim or with people associated with victim, trial court did not abuse its discre­tion by excluding opinion of witness. State v. Caffee, 116 Or App 23, 840 P2d 720 (1992), Sup Ct review denied

While one trial witness may not testify about credibility of an­oth­er trial witness, rule does not preclude admission of relevant out-of-court state­ment phrased in form of opinion as to credibility of an­oth­er witness. State v. Odoms, 313 Or 76, 829 P2d 690 (1992)

Testimony or exhibit may not, ex­plic­itly and directly, contain opinion as to trial witness’s credibility. State v. Charboneau, 323 Or 38, 913 P2d 308 (1996); State v. Wilson, 323 Or 498, 918 P2d 826 (1996)

Once witness’s character for truthfulness is attacked, ability to present evidence supporting truthfulness becomes entitle­ment. State v. Reynolds, 324 Or 550, 931 P2d 94 (1997)

Where state attacks credibility of defendant on rebuttal in reasonably unforeseen manner and credibility is central to de­fense, denial of opportunity for surrebuttal is error. State v. Wilkins, 175 Or App 569, 29 P3d 1144 (2001), Sup Ct review denied

Confronta­tion Clause of Oregon Constitu­tion does not give defendant right to attack or support credibility of complaining witness through extrinsic evidence. State v. Driver, 192 Or App 395, 86 P3d 53 (2004), Sup Ct review denied

Court may not exercise discre­tion to exclude impeach­ment witness testimony based on court assess­ment of impeach­ment witness credibility. State v. Mackey, 290 Or App 272, 414 P3d 443 (2018).

Completed Cita­tions (For ORS 45.590 In Permanent Edi­tion)

State v. Howard, 6 Or App 230, 486 P2d 1301 (1971), Sup Ct review denied

Chapter 40


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 (2019) (last ac­cessed May 16, 2020).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 40, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano040.­html (2019) (last ac­cessed May 16, 2020).
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. Currency Information