Oregon Evidence Code 404: Character Evidence vs. Relevance (5 of 10)
Relevance: Prior case law, such as Johns, is still applicable to determine whether or not evidence is relevant or instead simply propensity evidence.
Relevant non-propensity evidence.
Under OEC 404(4), evidence of other crimes, wrongs or acts by a defendant is admissible as long as it is relevant. This rule “does not change the traditional standards for determining the relevance of evidence that might tend to prove the defendant’s propensity to commit the crime.” State v. Dunn, 160 Or App 422, 430, 981 P2d 809 (1999) (finding the Johns test and Pinnell test to still be valid for determining the logical relevance of prior bad acts even after the enactment of OEC 404(4)). With regard to determining the relevance of evidence, the court in State v. Osborne, 174 Or App 88, 91 (2001), ruled as follows:
[T]he trial court’s first task is to evaluate the evidence in order to determine the relevance of the evidence to the issues being tried. “In doing so the court should look at all of the issues in the case to see if the evidence is relevant to some issue other than the defendant’s propensity to commit certain acts.” [State v. Dunn, 160 Or App 422, 426, 981 P2d 809 (1999)]. The tests to determine whether the evidence of other crimes is relevant, as described in cases such as Johns (intent) [State v. Johns, 301 Or 535, 725 P.2d 312 (1986)] and State v. Pinnell, 311 Or 98, 806 P2d 110 (1991) (identity), apply only when the purpose for which the evidence is offered is something other than propensity.
See alsoState v. Bunting, 189 Or App 337, 341 (2003) (“Where evidence of other crimes is offered under OEC 404(3) as relevant to show a defendant’s intent, the evidence must meet the five-part test for relevance set out in Johns.”)
While the aforementioned case law applies to prior act evidence being offered under OEC 404(3), these cases are still applicable under Williams and OEC 404(4) to determine the relevance of the prior bad act evidence. The fundamental relevance issues are no different between the two subsections. If the State is offering prior bad act evidence for a specific purpose, such as motive or intent, the evidence must satisfy the tests established by case law to qualify as such evidence, such as Johns and Hampton (discussed further herein). If the evidence fails those tests, it is not relevant for that specific purpose (i.e. motive, intent, etc.) and is therefore not relevant and is inadmissible
If the evidence the State has offered for non-propensity purposes fails to satisfy the relevance criteria, or, in the alternative, the State fails to articulate a specific purpose for the evidence, the only other way the State can then get that evidence in is to offer it as propensity evidence. Under Williams, propensity evidence is relevant evidence for a child sex crime; however, relevant propensity evidence can only come in if it passes the OEC 403 balancing test.
As held in Williams, OEC 404(4) allows other acts evidence to be admitted for any relevant purpose and “propensity evidence” was a relevant purpose in that particular case. As discussed herein, Williams held that the Due Process Clause requires OEC 403 balancing of evidence admitted to OEC 404(4) in child sexual cases (and its reasoning applies to non-child sex cases as well). Williams also suggests that the Due Process Clause would require the categorical exclusion of propensity evidence in non-child-sex cases. The court stated that in non-child-sex-abuse cases, the court “might be persuaded that due process…not only requires the application of OEC 403, but also precludes the admission of ‘other acts’ evidence to prove propensity.” Williams at 17.
NEXT PAGE: Oregon Character Evidence: Intentional Crimes (6 of 10)
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