Trait

Evidence of a character trait is not admissible to prove that a

person acted in conformity with that trait except in the following
Evidence Action 4 situations:
1. Element 2. Defendant’s offer 3. DA rebuttal 4. Impeachment

When it is an essential ele-
ment of a charge, claim or
defense - ORE 404(1)
Proof: reputation, opinion
or acts
Really rare in criminal
cases. Only example is D’s
knowledge of vics prior
violent acts in self-defense
case. But better treated as
not for character trait. See
Kirkpatrick, sec. 404.04
When offered by D to prove When offered by DA to When offered to prove un-
a pertinent trait of D or vic- rebut D’s proof of trait or as truthfulness of a witness or
tim - ORE 404(2) evidence of Victim’s peace- to rebut with evidence of
fulness if D says V was 1st truthfulness. ORE 608
Proof: reputation, opinion aggressor. ORE 404(2)
(but not acts) Proof: reputation, opinion
Proof: reputation, opinion or convictions (but not other
• That D is law abiding is or acts on cross if D acts - even on cross)
always pertinent. US v Attacking victim does not
Hewitt 634 F2 277 open door to attack D. • D testifies then DA
• May not use vics past Peacock, 75 OA 217 attacks truthfulness, D
acts for self-defense D’s testimony opens doors: gets to rebut with ev of
unless for D’s mind. • Guritz - “good father” truthfulness. Reynolds
Lunow, 131 OA 429 • Peoples-“I’ve changed” 324 Or 550

Bias is never collateral ORE 404, 405, 608, 609 Convictions, ORE 609:
Inadmissible unless:
Character Evidence
Proof: Must cross first. Then, if • less than 15 yrs old
Attacking Witnesses

denied, may offer proof by any
means. Ev may include prior
conduct or statements.
Examples (Kirkpatrick p 520):
• DA witness is on probation
or facing pending charge, or
contemplating civil action or
threatened a defense witness
or a police informant or
granted immunity, etc.
Ev of the habit of a person or the
routine practice of an organization
is relevant to prove conformity.
Proof: By any means. Does not
need corroboration or eyewit-
nesses. ORE 406(1)
Habit: a person’s regular prac-
tice of meeting a particular kind
of situation with a specific, dis-
tinctive type of conduct. 406(2)
Examples:
• Emp’ee theft - it was routine
practice to allow emp’ees to
eat food and pay later. Bailey
87 OA 664
• 50 times smoking marijuana
at D’s residence is not habit.
Maxwell, 172 OA 142
• D always takes X route home
Attacking Witnesses
• Felony, dishonesty or
DV - 609(2) list
What is the • Not expunged
Bias Impeachment
ORE
evidence • Not reversed
609-1 offered to ORE 608, 609, • Not an adjudication
prove? 613 • Not viol of rt to counsel
Proof: by public record or
Habit Moippkiaa admission. 609(1)
ORE Motive, Opportunity, Intent, Preparation, Plan,
Knowledge, Identity, Accident, Absence of
406 Prior Inconsistent Stmts:
Mistake. ORE 404(3) - aka prior bad acts
A prior inconsistent stmt
Other crimes, wrongs or acts may not be used to may be proved on cross or,
prove character and conformity but they may be alternatively, by extrinsic
used for narrow purposes like moippkiaa,etc evidence if the witness is
The Johns test, 301 Or 535 (1986): given an opportunity to
• Ev is relevant for a noncharacter purpose explain. ORE 613
• Proof by preponderance is offered that act was
committed by D. Rugemer, 153 OA 400 No opportunity to explain
• Probative value not substantially outweighed need be given if:
by prejudice, confusion, misleading jury, etc. Admission of party
6 Johns issues when DA is proving intent: Interests of Justice dictate
Does present charge require proof of intent? Prior inconsistent conduct
Did prior act require intent? Hearsay declarant
Was victim the same or of the same class? Kirkpatrick, p 551
Was the type of prior act the same or similar?
Were the physical elements of prior similar? A prior stmt is inconsistent
Is the probative value outweighed by 403 dangers? where witness testifies he is
unsure about stmt. Van
Stipulation: stipulating to the fact the DA is try- Gorder, 56 OA 83 (1982)
ing to prove may keep out bad acts.
Prior acquittals may be used (proof by prepond.) No extrinsic proof of
Subsequent bad acts may be used collateral matters

Religion: Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of
showing that by reason of their nature the credibility of the witness is impaired or enhanced. ORE 610