State v. Kinstler, 478 P.3d 595

Defendant (Kinstler) was convicted by a jury of fourth-degree assault and menacing after an altercation with M, who was using a leaf blower; defendant claimed self‑defense and his police statements were admitted at trial.
Disputed fact at trial: when M turned off the leaf blower relative to defendant’s approach and whether M blew debris at defendant.
M and his daughter gave testimony at trial that differed in nuance from prior statements to police; defendant requested the ORS 10.095(3) witness-false-in-part (UCrJI 1029) instruction based on alleged inconsistencies.
The trial court denied the requested instruction, concluding there was no indication the witnesses were perjuring themselves.
On appeal the Court of Appeals initially affirmed; the Oregon Supreme Court reversed in Payne and remanded Kinstler for reconsideration under Payne’s legal‑standard; on remand the Court of Appeals again affirmed, holding the discrepancies did not support the instruction.

Issue	State's Argument	Kinstler's Argument	Held
Whether the trial court erred by refusing to give the witness-false-in-part instruction (UCrJI 1029)	The identified discrepancies are memory lapses/differences in perspective and do not permit a reasonable juror to find a conscious, material falsehood; any error was harmless	M’s testimony about when he turned off the blower conflicted with prior statements to police and cross-exam testimony, permitting an inference that M intentionally lied and thus the instruction was required	No error; evidence was legally insufficient to show a conscious, material falsehood—discrepancies were consistent with memory lapse, minimization, or perspective, not perjury
Proper legal standard for giving witness-false-in-part instruction after State v. Payne	Instruction should be given only if evidence, viewed most favorably to requester, could support finding a conscious falsehood on a material issue	Same as State but argues standard is met here	Payne governs: question is one of law; applying Payne, Kinstler’s proffered evidence fails to meet the standard

State v. Payne, 366 Or 588 (2020) (holding that a trial court must give the witness-false-in-part instruction only when evidence, viewed most favorably to the requester, could support a finding that a witness consciously testified falsely on a material issue; the determination is a question of law)
State v. Kinstler, 366 Or 825 (2020) (Oregon Supreme Court decision remanding the Court of Appeals’ prior disposition for reconsideration in light of Payne)
State v. Kinstler, 299 Or App 402 (2019) (Court of Appeals’ initial decision rejecting Kinstler’s challenge to the trial court’s refusal to give the witness-false-in-part instruction)
Sandstrom v. Montana, 442 U.S. 510 (1979) (distinguishing permissive inferences from unconstitutional conclusive presumptions)