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

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