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August 31, 2016

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Witness Backgrounds: What’s Admissible in Washington vs. Oregon

by WSBA
Magnifying glass on a laptop keyboard
Working on cases that involve both Washington and Oregon? Find how admissibility laws differ in the two states.

Magnifying glass on a laptop keyboardA lot can be learned from investigating the background of witnesses involving cases that span two states. As an investigator with a firm handling matters in Washington and Oregon, I need to know how far back to search witnesses’ backgrounds in order to determine what is admissible under the laws of each state. Some of the differences might surprise you.

Time limits for admissibility
The first factor in determining how far back to look into their backgrounds is how old a criminal conviction can be to be admissible in each state. This is very different in Washington vs. Oregon.

In Washington, under Evidence Rule 609 (b), a conviction is not admissible if “a period of more than 10 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, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” ER 609 (b) of Washington state. It is required for all convictions that are more than 10 years old. State v. Russell 104 Wn. App. 422 (2001).

If the conviction is less than 10 years old, it can be used against a party or witness if it is a felony (over one year in punishment) or if it involved a crime of dishonesty or false statement. So the types of crimes I look for in someone’s background include:

  • Theft (See State v. Ray, 116 Wn. 2d. 531 (1991))
  • Possession of stolen property (State v. McKinsey, 116 Wn. 2d. 911 (1991))
  • Forgery (State v. Jones 101 Wn. 2d. 113 (1984))
  • Identity theft (RCW 9.35.020)

According to the Oregon Evidence Rule 609, also known as ORS 40.355 (3) (a), evidence of a conviction under this section is not admissible if 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 the conviction has been expunged by pardon, reversed, set aside or otherwise rendered nugatory. ORS 40.355(3)(a).

First of all, Oregon allows the investigator to go back 15 years from the time that conviction or confinement ended. Say an 18-year-old stole a candy bar from the corner store in Portland and was convicted before his 19th birthday. Now, at age 32, he has to testify in a civil case about an auto accident he was victimized in. Guess what? That theft conviction of the candy bar is coming in as evidence against him — without any balancing test (like in Washington).

Reviewing the underlying facts
A second factor to review is the underlying facts of the past conviction. In Washington, the past conviction cannot be explained in factual details, other than the fact that the conviction exists. In State v. Coe, 101 Wn. 2d. 772 (1984), it was held that cross-examination as to prior convictions is limited to the facts contained in the record — only that a conviction exists.

In Oregon, this is not the case. According to 609, ORS 40.355 (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. (Not so good here for our kid and his candy bar.)

Oregon and Washington have some significant differences in the law — Oregon is strict, where Washington is a lot more analytical. In either state, however, the laws should allow for judges to analyze each individual situation.

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