2015 ORS 40.355¹
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 under ORS 163.115 (Murder).

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

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

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

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

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

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

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

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

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

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

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

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

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

(P) Coercion under ORS 163.275 (Coercion).

(Q) Stalking under ORS 163.732 (Stalking).

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

(S) Menacing under ORS 163.190 (Menacing).

(T) Harassment under ORS 166.065 (Harassment).

(U) Strangulation under ORS 163.187 (Strangulation).

(V) 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]

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 (Discussion and agreement not admissible)) 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. Exclusion of relevant evidence on grounds of prejudice, confusion or undue delay) (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.


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.