State v. Estlick

523 P.2d 1029, 269 Or. 75, 1974 Ore. LEXIS 364
CourtOregon Supreme Court
DecidedJune 20, 1974
StatusPublished
Cited by12 cases

This text of 523 P.2d 1029 (State v. Estlick) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Estlick, 523 P.2d 1029, 269 Or. 75, 1974 Ore. LEXIS 364 (Or. 1974).

Opinions

DENECKE, J.

The defendant, an insurance claims adjuster, was convicted of obtaining money by false pretenses. He allegedly obtained money by paying claims, which he knew to be false, to Evans Smith and accepting from Smith a share of the proceeds. The Court of Appeals affirmed the conviction. 14 Or App 288, 511 P2d 1250 (1973). We granted review.

At the trial the state called Smith as its first witness. He testified he was serving a term in the penitentiary and had pleaded guilty to a charge involving the same transaction involved in the present charge against defendant. The defendant objected to this testimony; however, he did not assign as error the receipt of this testimony into , evidence. For this reason we will not consider any issue concerning the receipt of this part of Smith’s testimony.

Smith was then permitted to testify over objection to the following: (1) that he was on “work release” with his parole date approaching and a state correctional officer loaned Smith $25; (2) that an investigator for an insurance company threatened Smith that if he did not testify, additional charges would be brought against him, and also against his wife, but that the insurance investigator would “go to bat” for him if he testified; and (3) that the state’s attorney [77]*77had said, nevertheless, that he would not be involved in any threats or promises and had offered no such inducements; and (4) that the state’s attorney had told Smith that if he testified the state’s attorney would notify the parole board of his testimony.

The testimony received is a combination of a showing of grounds for bias and interest and an attempt to negate an inference of bias and interest. Showing bias and interest of a witness is a method of impeachment. The defendant objected to the testimony upon the ground that the state was impeaching its own witness contrary to OES 45.590. We will assume, without deciding, that this was impeaching testimony.

OES 45.590 provides, in part: “The party producing a witness is not allowed to impeach his credit by evidence of bad character, but he may contradict him by other evidence, and may also show that he has made at other times statements inconsistent with his present testimony, as provided in OES 45.510.”

The rule at common law was that a party calling a witness could not impeach that witness. This broad rule is universally attacked as being without any virtue. 3A Wigmore, Evidence (Chadbourn Eev), 658-663, §§ 896-899; Morgan, Basic Problems of Evidence, 69-71 (1962); McCormick, Evidence (2d ed), 75, § 38.

OES 45.590 modifies the common law and enacts a very limited ban on impeaching, a witness produced by the party. See State v. Cummings, 205 Or 500, 521-522, 288 P2d 1036, 289 P2d 1083 (1955). OES 45.590 only prohibits impeaching by evidence of bad character.

On occasion this court has made statements that what is now OES 45.590 restates the common law: State v. Hunsaker, 16 Or 497, 499, 19 P 605 (1888); [78]*78State v. Ede, 167 Or 640, 644, 117 P2d 235 (1941); or that ORS 45.590 forbids any impeachment of a witness by a party who called the witness. State v. Briggs, 245 Or 503, 508, 420 P2d 71 (1967). All such statements are incorrect.

ORS 45.590 does not prohibit a party from impeaching a witness it has produced by a showing of bias or interest. We know of no reason why we should adopt such a prohibition by judicial decision. Assuming that the testimony is regarded as impeachment by a showing of bias and interest, we find the trial court’s ruling was not in error.

The defendant also objected to this testimony upon the ground that the state was attempting to “buttress” Smith’s credibility by this testimony. We are not quite certain what the defendant intended by using the word “buttress,” but from the context and the arguments we understand the defendant’s contention to be twofold: (1) that the state was trying to take the “sting” out of evidence of the witness’s bias and interest by bringing it out itself rather than waiting for the defendant to bring it out on cross-examination; and (2) that the state was rehabilitating, its witness by testimony of lack of interest or bias before the witness was impeached.

In the first category was the testimony that a correctional officer had loaned the witness $25; that the insurance agent told Smith he would help him if he testified but would bring charges against him if he did not testify; and that the state’s attorney would notify the parole board if the witness testified. Such testimony is in no way rehabilitative.

We have never decided the issue raised as the [79]*79first basis for defendant’s objection; that is, the propriety of introducing on direct examination testimony of bias and interest on the part of one’s own witness. Most of the decisions from other jurisdictions on this practice concern the government introducing evidence of the criminal convictions of its own witness.

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Related

State v. Eby
673 P.2d 522 (Oregon Supreme Court, 1983)
Feist v. State
631 S.W.2d 769 (Court of Appeals of Texas, 1982)
State v. Coon
599 P.2d 1200 (Court of Appeals of Oregon, 1979)
State v. Gilbert
577 P.2d 939 (Oregon Supreme Court, 1978)
State v. Gilbert
567 P.2d 1030 (Court of Appeals of Oregon, 1977)
State v. Ciulla
351 A.2d 580 (Supreme Court of Rhode Island, 1976)
Rhodes v. Harwood
544 P.2d 147 (Oregon Supreme Court, 1975)
State v. Estlick
523 P.2d 1029 (Oregon Supreme Court, 1974)
Ferraro v. Pacific Finance Corp.
8 Cal. App. 3d 339 (California Court of Appeal, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
523 P.2d 1029, 269 Or. 75, 1974 Ore. LEXIS 364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-estlick-or-1974.