OR Bar Evidence 3 — Questions and Answers
Question 1: In a civil fraud case, plaintiff seeks to introduce evidence that defendant committed a similar fraudulent scheme five years ago. This evidence is:
- Inadmissible as propensity evidence under OEC 404(a)
- Admissible to show knowledge, plan, or absence of mistake under OEC 404(b) (Correct answer)
- Admissible only if the defendant testifies
- Inadmissible unless the prior scheme resulted in a criminal conviction
Correct answer: Admissible to show knowledge, plan, or absence of mistake under OEC 404(b)
OEC 404(b) prohibits other-acts evidence to prove character/propensity but permits it for purposes such as proving knowledge, plan, or absence of mistake.
Question 2: During cross-examination, opposing counsel shows the witness a prior deposition in which she said the light was red, contradicting her trial testimony that it was green. The prior deposition is offered to:
- Prove the light was actually red as substantive evidence
- Impeach the witness's credibility through a prior inconsistent statement (Correct answer)
- Rehabilitate the witness with consistent prior statements
- Establish the witness's bias toward the opposing party
Correct answer: Impeach the witness's credibility through a prior inconsistent statement
A prior inconsistent statement may be used to impeach a witness's credibility by showing the witness said something different on a prior occasion.
Question 3: In a civil battery case, defendant wishes to introduce evidence that plaintiff has a reputation for being the aggressor in fights. This evidence is:
- Admissible; in civil cases, the plaintiff's character for violence is always relevant
- Inadmissible; OEC 404(a) bars character evidence to prove conduct in civil cases (Correct answer)
- Admissible if plaintiff first introduces character evidence
- Admissible as habit evidence under OEC 406
Correct answer: Inadmissible; OEC 404(a) bars character evidence to prove conduct in civil cases
Under OEC 404(a), character evidence offered to prove a person acted in conformity therewith is generally inadmissible in civil cases.
Question 4: An expert witness proposes to testify about a new scientific technique for analyzing bloodstain patterns. Under Oregon's standard for expert testimony, the trial court should:
- Admit the testimony if the expert has a relevant advanced degree, regardless of methodology
- Evaluate whether the methodology is scientifically valid and reliably applied to the facts (Correct answer)
- Apply a strict Frye general-acceptance test, excluding anything not universally accepted
- Admit without inquiry because bloodstain analysis is judicially noticed as reliable
Correct answer: Evaluate whether the methodology is scientifically valid and reliably applied to the facts
Oregon applies a reliability-based gatekeeping standard under OEC 702, requiring the court to assess whether the expert's methodology is valid and fits the case facts.
Question 5: In a sexual assault prosecution, the defendant seeks to introduce evidence of the victim's prior sexual conduct with third parties to show consent. Under Oregon's rape shield law, this evidence is:
- Admissible as directly relevant to the consent defense
- Generally inadmissible, with narrow exceptions such as prior acts with the defendant (Correct answer)
- Admissible if the defendant provides pretrial notice
- Admissible to impeach the victim's credibility on cross-examination
Correct answer: Generally inadmissible, with narrow exceptions such as prior acts with the defendant
Oregon's rape shield statute (ORS 40.210) bars evidence of the victim's prior sexual conduct with third parties, with limited exceptions such as prior consensual acts with the defendant.
Question 6: A criminal defendant seeks to impeach a prosecution witness with the witness's 12-year-old felony conviction for embezzlement. The court must consider:
- Whether the conviction involved dishonesty or false statement; if so, it is automatically admissible
- Probative value versus prejudice, including whether the conviction is more than 10 years old under OEC 609 (Correct answer)
- Only whether the conviction is for a felony, regardless of time elapsed
- Whether the witness has been pardoned, which automatically bars admission
Correct answer: Probative value versus prejudice, including whether the conviction is more than 10 years old under OEC 609
Under OEC 609, convictions more than 10 years old require that probative value substantially outweigh prejudicial effect before admission.
Question 7: After a witness is impeached with a prior inconsistent statement, the proponent seeks to rehabilitate the witness with a prior consistent statement predating any motive to fabricate. The court should:
- Exclude it; prior consistent statements are always hearsay and inadmissible
- Admit it; prior consistent statements rebutting a charge of fabrication are admissible under OEC 801(4)(a)(B) (Correct answer)
- Admit it only as non-hearsay for the limited purpose of credibility, not for its truth
- Exclude it because rehabilitation is never permitted through extrinsic evidence
Correct answer: Admit it; prior consistent statements rebutting a charge of fabrication are admissible under OEC 801(4)(a)(B)
Under OEC 801(4)(a)(B), a prior consistent statement is admissible as non-hearsay to rebut a charge of recent fabrication or improper motive when made before the alleged motive arose.
OR Bar Evidence 3
In a civil fraud case, plaintiff seeks to introduce evidence that defendant committed a similar fraudulent scheme five years ago.
This evidence is: