*1 7, 1983, Argued Appeals and submitted June decision of Court of affirmed and cause 18, 1984 September remanded OREGON, STATE OF Review, Petitioner on v. HUBBARD,
GARY THOMAS Respondent on Review.
(TC C81-07-33514; A23649; 29358) CA SC
790-b Portland, argued filed the brief
Phillip Margolin, M. on review. respondent the cause for CARSON, J. J., opinion. and filed an
Campbell, concurred Peterson, J., in which Jones, opinion dissented and filed an J., joined. C.
CARSON, J. presented The in this case is whether cross- arresting knowledge related to the officer’s examination police department procedures potential internal and the sanc- unnecessary tions officers who use force is relevant and, so, it reversible error show bias or interest for the trial whether was to exclude the evidence.
FACTS by jury Defendant of and sentenced Degree, was convicted Escape the trial court for in the Second Reckless Driving Attempting charges to Elude Police Officer. police stemmed from an encounter defendant and a between officer, the details of which both defendant and the officer testified at trial. stopped
The officer testified that he defendant aas suspected driver; drunken when the officer told defendant he away high speed; arrest, was under defendant drove at defen- subsequently apprehended driveway dant was in his where attempted defendant; officer to handcuff defendant struck the repeatedly causing fists, officer with his the officer to defend nightstick; himself with his defendant ran into his residence accompanied by recently police officer, and the several arrived forcibly officers, residence, entered the but was to find unable defendant. stopped by
Defendant testified that he was stopped, officer; while defendant’s wife called him on his radio pager communication he immedi- asked that come home ately; defendant asked the officer to follow him home a few away respond blocks so that defendant could to his wife’s page; upon unexpectedly house, arrival at his the officer attempted him, to handcuff threatened to mace him and then nightstick; escaped house, beat him with a defendant into his pursued banged officer, and threatened who on the door down; to break it defendant then hid outside the home from the officer for several hours. only and the officer were the two wit-
Defendant surrounding charges of which nesses to the incident Consequently, defendant was convicted. officer was a critical prosecutorial of the trial. element *5 attempted the officer to cross-examine Defendant depart knowledge police of internal regarding the officer’s against officer who disciplinary available an ment measures alleged purpose at an The of uses excessive force arrest scene. personal to that the officer had questioning the was show of of his version the interest the outcome the case that depart his desire to avoid might events be slanted because of questioning The trial disallowed the discipline. mental filed no of force had been complaint because excessive evidence would leave the resulting the officer and because filed an had such with incorrect inference that defendant of of held the exclusion complaint. Appeals The Court an abuse discretion and reversed and was Hubbard, 350, 657 for a new trial. State v. App remanded (1983). P2d 707 correct, ruling
In trial court was deciding whether the proffered developed first how the cross- we review pres- asked the officer in the examination. Defense counsel of the jury: ence unreasonably “Q Now, police officer acts a Portland scene, at internal
and uses much force an arrest are there too procedures regarding question? that
“A Yes.1 “Q something like that would And an officer who did — — depart- have to do what stand a board trial ment? Honor, object Your I’d have to this.
“[PROSECUTOR]: U* * * * * objection.
“THE I sustain COURT: up?” May I take that matter “[DEFENSE COUNSEL]: outside colloquy place presence took following jury: * * *
“THE COURT: question; prosecutor neither note this first We that the officer answered Thus, admissibility limiting objected first nor for a instruction. asked questions question issue. with the on offer of and answer are not at We are concerned (1) (2) procedures, proof awareness what related the witness’ awareness (3) officers, complaint happens knowledge filed had to errant that no been him. question: question you ‘When- “The second asked was — you asking started ever an officer uses excessive force’ counsel], if question, perfectly proper, Mr. and it’s [defense — Depart- complaint had he with the Police Hubbard filed a ment, you proceed inquiry, ask him then and with the could just being to make a broad statement about some officer — procedure investigated and what is the May I be heard?
“[DEFENSE COUNSEL]: Certainly. “THE COURT: test, might always One use “[DEFENSE COUNSEL]: witness, particularly in An
of a a situation like this. officer is bias; presumed just to have no he’s a man out there. * * * you proceed
“THE with COURT: Just what him, going ruling. I’ll were to ask and make a “Q (By counsel]) you Are aware of internal [defense *6 police procedure regarding happens police what when a officer against uses too much force out on the street a citizen?
“THE COURT: Answer. Yes,
“THE I WITNESS: am. “Q (By counsel]) charges if are sus- And those [defense officer, you happen tained an are aware of what could to an officer?
“A Yes.
“Q is that? What varying things happen.
“A There are that can Internal investigation Affairs can decide to turn the over to the proceeding, detectives who want to do it like a criminal because, knowing if I Internal Affairs interviews me that what — say any going is to be used me in Court because — they me officer because it would be coerced out of could Chief, just send it and the Chief can decide on discipline, appeal go and the can and it can union decide to happen. just things that can arbitration. There’s all kinds of you. Thank “[DEFENSE COUNSEL]: I would have one on this “[PROSECUTOR]: proof. offer of you [police lodged Hubbard ever “Do know Mr. officer] you? complaint against an Internal Affairs not, “THE I that he has unless he’s WITNESS: know * * today done it *. you.” Thank “[PROSECUTOR]:
794
ANALYSIS
lies in the resolution
The
of this case
outcome
principle
potential
the law of
of
conflict between a basic
involving
procedure
the admission
a rule of
evidence and
upon by
principle,
defendant, estab
The
as relied
evidence.
great latitude in cross-
defendant has
that a criminal
lishes
particularly
examining prosecution witness,
in cases where
sharply
give
prosecution
con
and the defendant
witness
flicting
heavily upon
rests
facts,
of the case
and the outcome
accounts of
Day,
v.
236
the witnesses. State
(1964).
upon
apparently
rule,
relied
458,
Or
For some the bench sought a trial reach or breadth of elsewhere, to define the have pronouncements post-hoc court’s discretion. Sometimes by appellate of discre- in terms of “abuse courts are stated deprecating and less to the trial tion,” that is a term authority defining helpful and bar in to the bench than appellate have deter- cases, courts court. In other impeachment relevant and evidence was certain mined that another variant on that basis. Yet reversed or affirmed have judge’s or exclusion admission whether the trial to determine impeachment error. was reversible of certain *7 2 signify range important a in this case. It is used to is The term “discretion” evidentiary objections. rendering rulings judge It is on trial in available to the choices may may ruling. judge It means that make a not to mean that the trial not used by specified rules judge are rulings in the course of a trial not made the trial certain Typically, law, legally where one correct outcome. rather have more than “discretion,” exclude evidence based judge he or she admit or has trial experience evidentiary judge’s of the trial. and observation and the concerns evidentiary questions judge not absolute. in of the trial discretion where it means a in contexts use the term “discretion” have endeavored to We choices, specified among related to a available decision from to make a discretion discretion, concept consideration, without evidentiary OEC 403. The for instance parameters, guidance and is too object to the trial offers no of its or its definition Properly can appellate areas of discretion defined abdication. a buzzword for often appellate subsequent review. decisions a framework for trial court establish
795
Obviously, by cataloguing the cases where evidence
(or inadmissible),
has been found to be admissible
lines have
mark,
cases,
been drawn to
most
the outer limits of the
Presumably,
repeat
discretion.
no trial
would
judge’s
that once has been held to be error or an
ruling
abuse
discretion;
so,
extent,
to that
judge’s
bright
lines have
instance,
emerged. For
this court has
impeachment
allowed
(1)
by showing:
party
for bias or interest
that the witness was a
legal action,
to another
the outcome of which would be
directly by
case,
influenced
present
outcome of the
Schallhorn,
Clevenger
209,
(1955) (trial
v.
205 Or
The issue of impeachment for bias or interest has not comprehensively Oregon been treated in caselaw. In order to so, (1) do three questions analyzed: proffered must be Is the (2) evidence relevant If bias or interest of the witness? so, is it admissible or is it excludable for some other reason? (3) admit Is the decision to or exclude the evidence reversible upon appellate review?
796
RELEVANCE
in effect
Evidence Code was not
Although
Oregon
case,
capsulizes a
trial of this
OEC 401
basic
at the time of the
Oregon law.
previous
consistent with
definition of relevance
(1943).
Sagert, 171 Or
680, 688, 690,
“ any tendency having evidence’ means evidence ‘Relevant consequence any is the existence of fact that to make probable probable less of the action more or determination it would be without the evidence.” than may be irrelevant which would otherwise
“Matters
v.
interest of a witness.” State
offered to show the bias or
Pundt,
533,
Dowell,
v.
Or
supra, O’Harra
550;
at
210
(1957).
relevant,
introduced
543,
To be
evidence
ADMISSIBILITY
is
Oregon
is that: “It
of evidence law
principle
A
or bias of an adverse
to show the interest
always permissible
Schallhorn,
Smith
215;
supra, 205 Or at
Clevenger v.
witness.”
(1940).
318, 329,
“Although danger substantially outweighed bative value issues, misleading or prejudice, confusion of unfair delay presenta- or needless of undue jury, considerations of cumulative evidence.” tion
797 (1963), P2d this 300, 312, Or Cooper, In Rich v. court said: may may produce it
“The evidence be excluded because jury, specific prejudice, undue confuse the for some other policy might reception from its reason the harm which result probative outweigh the value of the evidence.” admissibiltiy
Determinations *9 counterpart under either OEC its as pre-code 403 or usually in Cooper, supra, announced Rich v. are within the example, McCarty Hedges, discretion of the trial v. judge. For supra, testimony damages sought by held that related to in a separate witness court action the same defendants properly was excluded. 212 atOr 515-17. The trial court’s ruling was within its discretion to limit the “extent of inquiry into the 212 witness’ interest.” Or at 517. The relevant apparently was excluded because it was cumulative. already affirmatively witness had responded questions to regarding injury bar, his in the same at accident his action defendants, the representation by and his the same attorneys represented the party for whom he testified.
McCarty v. Hedges Clevenger and v. Schallhorn rulings involved on the admissibility of evidence relevant to bias or interest which evidence was of cumulative other such The inconsistency McCarty introduced. between Clevenger is that the former called the trial judge’s ruling discretionary error, and not the ruling while latter called the error but held it McCarty was not reversible error. is correct that these were rulings discretionary. discretionary Whether rulings can be considered error is at not issue in the instant case.3
3
provides:
ORS 138.230
hearing
appeal,
give judgment,
regard
“After
the
the court shall
without
to the
questions
decision of
which were in the
of the
discretion
court below or to
errors,
exceptions
rights
technical
defects or
which do not affect the substantial
parties.”
applies solely
appeals.
This statute
in criminal
Because the instant case is a criminal
appeal,
provisions
Const,
applicable
in civil cases. See Or
we do not discuss the
of law
(Amended),
3;
discretionary
Art VII
§ ORS 19.125. We also
not discuss whether a
do
ruling
may
appeal.
Const,
See Or
in
of the trial court
a criminal case
Art
reversed on
Hancock,
(Amended),
3;
Compare,
240, 244,
State v.
VII
ORS
§
138.230.
245 Or
421
Bailey,
(1966) (“abuse
discretion”)
321, 342-43,
with State v.
P2d 687
208 Or
975,
(1956)
decisions)
(withholding
discretionary
P2d
The statement is not in conflict with may always of a witness be shown discretion to McCarty judge the trial has statement or interest. The discretion inquiry extent of into bias limit the relevant to bias or judge to exclude evidence facts have been estab only once sufficient interest obtains interest. may infer that bias or jury lished from which the require given latitude be Typically, this would wide suffi questions answers to cross-examiner to ask and receive or to the nature of bias cient to demonstrate situations, this “initial witness. But in some interest direct examination during or interest occurs showing” bias the circumstances of apparent interest from bias or situations, the discretion In it would be within the trial. such cross-examinat any questions exclude of the trial ion.4 also have would
Under OEC value probative if its discretion to exclude relevant evidence preju of unfair substantially danger outweighed was The trial dice, issues, misleading jury. confusion of the by the delay caused the effect of undue judge also consider exercised It must be inquiry. This discretion is not absolute. limit authority 403. The outlined in OEC purposes for *10 proposition for the evidence does not stand impeachment showing, of an initial justifies discretion exclusion judge or evidence, facts from which the bias of sufficient by relevant inferred. may of a be interest witness unduly to limit judge discretion of the trial needlessly or misleading, delaying confusing, prejudicial, pro necessarily also of bias or interest cumulative evidence discretion to determine whether with vides the bias or from which facts have been established sufficient This is not absolute may be inferred. interest of a witness circumstances, to show evidence offered In some discretion. as a to be admissible held to be or not or interest will be bias in the primarily rests law. But this determination matter of judge. of the trial discretion will in OEC 403 oftentimes
The concerns addressed evidence where the admission of extrinsic would not extend to This discretion fully a matter is inadmissible as admitted. Such evidence interest has been the bias or 609-1(2). law. OEC pertinent not be to a determination of whether evidence relevant to the bias or interest of a witness is admissible. prejudice there is no of unfair perceivable danger Where testifies, party witness or the for whom the witness confusion issues, of the or considerations of misleading jury, evidence, delay presentation undue or needless of cumulative OEC 403 is not applicable. Even where sufficient facts have may been established from which the or interest bias be inferred, the trial judge does not have absolute discretion to admit or exclude further evidence. Evidence relevant to differ- ent testify may motives to in a certain manner be admissible as a matter of law. Certain evidence of bias or interest inadmissible as a matter of law due to 403 concerns.
The discretion of the trial judge scope to control the 611(2) pursuant cross-examination to OEC does not allow the exclusion of evidence impeach offered to for witness bias 611(2) provides: interest. OEC
“Cross-examination subject should be limited to the mat- ter of the direct examination and affecting matters the cred- ibility may, of the witness. The court in the exercise of discretion, permit inquiry into additional matters ifas direct examination.”
This court has stated:
“ discretionary power ‘The of the trial is to confine the cross-examination within reasonable limits. It does not authority include the altogether questions, to exclude and the thereto, directly answers which challenge the disinterested ” ness or testimony.’ Bailey, of the witness’ State v. Roberson, (quoting 784, 3 at 342 State v. 215NC SE2d (1939)). Thus, both the Oregon new Evidence Code and Oregon caselaw limit the discretion of the trial judge to “additional matters,” not including evidence which is relevant to bias or interest, until sufficient opportunity has been given to the cross-examiner credibility. establish the witness’ lack of Impeachment for bias or interest relates to affecting “matters the credibility and, reason, witness” for that decisions on the admissibility of evidence relevant to bias or interest are *11 not within the trial judge’s discretionary authority under OEC 611(2) to control the scope of cross-examination.
Evidence relevant to the bias or interest of a witness her The trial in his or always judge, need be admitted. not pursuant to discretion, extent of such evidence may limit the However, given must be the cross-examiner OEC 403. facts from which bias establish sufficient opportunity to inferred, always permissible to may because it is interest be shown, is bias or interest bias or interest. Where show is within the to, the decision questioning objected further is However, is questioning trial where judge. discretion of the shown, is an interest is the decision curtailed before bias or obviously to Likewise, objection an overruling error of law. or interest has evidence after bias confusing cumulative and are in the trial court could be error. Errors been shown 138.230. reversed, harmless. See ORS categorized unless ERROR OR PREJUDICIAL HARMLESS whether the to be resolved is The final for the trial reversible. It is error judge’s ruling is facts from which sufficient exclude evidence which establishes inferred. If in the bias or interest of witness is to the trial, prejudicial the exclusion of the entire context evidence, it is impeachment to introduce the party sought who pro Court has Supreme States reversible error. The United in a case prejudice this thoughtful vided a statement attempted to show which involving cross-examination It interest of a witness. stated: bias or latitude be trial that reasonable “It is the of a fair essence cross-examiner, unable to state to though even he is given the might cross-examination what facts a reasonable court opportunity to develop. a denial of the Prejudice ensues from put weight proper setting place in his the witness test, which the credibility without and his his States, 282 v. United fairly appraise them.” jury can’t Alford (1931). 218, 219, 687, 692, L 75 Ed 51 S Ct US and hold from statement quoted to the We subscribe Alford interest to bias or evidence relevant a decision to exclude adequate an error, if it denies is reversible which is a witness whose credibility to assess opportunity If numer- of the trial. to the outcome important fact, the exclusion then given to a witnesses testified ous other testified or interest who a witness’ bias of evidence of given of a in the context error” be “harmless might same fact on a sole witness witness is the impeached But where the trial. *12 evidence, and there is no the inter- given corroborating issue party that the require given ample ests of a fair trial adverse the bias or opportunity to establish witness’ interest. To fail to sufficient to establish facts allow cross-examination from may or interest be inferred in such a which bias situation is error. reversible
DISPOSITION argues The state that the testimony proffered in the instant is too remote case to be relevant to the bias interest of the officer police witness. There is no caselaw Oregon on point Supreme Hampshire Court of New has type impeachment addressed the of attempted in the instant Ramos, case. State v. 863, 435 (1981). 121 NH Ramos A2d 1122 a officer, involved confrontation between a citizen a police presented the issue of who was aggressor and hinged on of the two as witnesses. Ramos stated: question presents credibility question
“The a classic call- ing vigorous for wide and cross-examination of both the * * * officer and the defendant. We hold that it was reversible deny error for the trial court to opportunity the defendant the question concerning officer knowledge his of and compliance department’s with the operating pro- standard hostage cedures in a attempt situation in an to establish that procedures the officer’sfailure provided to followthe him with a motive to fabricate his version of the incident.” at 435 A2d (Citations omitted.) 1124. agree We that a testifying officer’s knowledge departmental of procedures for handling suspects potential sanctions for procedures violation of the tends to show that the officer has an interest in testifying that he procedures, followed such whether he in fact did so. The on offer proof tends to show this interest and is therefore relevant.5
The excluded evidence relevant to the bias or interest of the testifying police officer because defendant disagree disciplinary proceedings We with the state and the trial that must contemplated against procedures be instituted or the officer before such are relevant to holding along the bias or interest of the witness. A those lines would be an invitation to complaint initiating proceedings merely most criminal defendants file a such for its impeaching testifying value officer. We decline to offer such an invitation. complaint filed him
had not and because the testi- mony jury by leaving impres- the erroneous would confuse above, had filed. As complaint that a been noted it is the sion that knowledge procedures suggest of the and sanctions jury filing complaint, or interest and not of the bias on light prosecutor’s question proof, offer of In unpersuasive.6 We no finding jury confusion find judge’s support exclusion The ground to of this evidence. other merely objection asked and answered before demon- procedures knew internal police officer strated by police officers. It did not regarding unreasonable acts facts with sufficient from which the bias or provide questions interest of the officer could be inferred. relating to the officer’s proof answered offer of awareness and sanctions have been an initial dem- procedures would *13 to or the of facts from which the bias interest jury onstration testimony this did rest be inferred. The admission of not could testimony The was admissi- judge. in the discretion of of and its exclusion was an error law. ble credibility The a contest a instant was between corroborating defendant. evidence the police officer and No testimony After officer’s critical was introduced. police case, the in we find that the was not reviewing record this the of fully affecting police informed of matters the could have witness. The lack of information well officer of trial. The error was prejudicial the outcome this affected testimony exclusion the was not “harmless.” The of and thus reversible error. of of is affirmed. The Appeals
The decision the Court trial. court for a new is remanded circuit cause CAMPBELL, J., concurring. majority by
I in the reached the but concur result opinion express my view that the trial separate this to write in testimony the had the discretion exclude court by during offer given from him ground a different that on proof. of opinion, dissenting in the officer’s answers to defense counsel’s noted As However,
questions proof than terms. it is clear were in less clear on offer of stated department police procedures internal answers the officer was aware of from the unnecessary potential use force. officers who sanctions proof, transcript set of the offer in the As shown opinion first majority 793, the trial court Or at 297 in the out previously a filed pointed had defendant if the out that department, police would complaint then the court with police proper” “perfectly the officer about to ask it consider procedures cross-examination. on police proof, officer under the offer
Next by as to what counsel testified defense cross-examination happens police procedure police a officer “when internal in against a citizen.” out on the street too much force uses by testimony the offer was concluded under testifying police that the defen- examination on direct officer police complaint against him with the a had not filed dant department. proof ruled: the offer of court at the end of The trial on this matter going “I’m to allow the not it, I there I said before. assume proof, gave I a reason for by Department complaint the Police filed with must be place. leave an somebody any activity takes You before way, be that he did jury, this that would inference with complaint something that effect filed or have some * * proper, *.” him the effect of it. This is not Although trial of this enacted after the OEC 403 was existing provides: previously law and case, it codifies relevant, pro- excluded its “Although danger substantially outweighed value is bative issues, misleading or prejudice, confusion of the unfair presenta- delay needless jury, of undue consideration added.) (Emphasis of cumulative evidence.” tion *14 charged judge My point a was with that the trial duty existing OEC 403 law that later became under the then impeaching probative to deter- value of the test the (1) by danger substantially outweighed the of if it was mine (3) misleading (2) prejudice, issues, or of the confusion unfair the duty jury. of the trial itself this nature of the trial From the judge discretionary judge is not The trial call. to be a has prejudice, required of confusion there was unfair to find that danger only misleading that the but issues, of the the probative substantially outweighs value of the the thereof ruled either for had court in this case If the trial evidence. only it under OEC 403 we could reverse the defendant for an abuse of discretion. dissenting. J.,
JONES,
opinion
majority
the trial
in this case reverses
The
stating
to exclude evidence offered
he had no discretion
prove
of the case.
the interest of the officer in the outcome
to
The court does so without word
analysis
question
of
of the
opinion
given by
majority
officer. The
or the answer
the
asked
questioning
bias or
the
is curtailed before
states “where
judge]
error of
shown,
is an
[of
interest is
the decision
After this directly opinion on a discussion observation, launches off the pointing what error was com- without out of harmless error heading Finally, called “DISPOSI- the court in its last mitted. TION,” departmental procedures knowledge testifying says “that a officer’s potential handling suspects for procedures that tends to show for violation of sanctions testifying such in that he followed has an interest the officer procedures, at 801. That he in fact did so.” 297 Or whether general law, how does it of the a correct statement in this case? fit to the facts evaluating case, in this we the cross-examination
In already question answered the first the officer has note that regarding police procedures what aware of internal that he is happens on the street uses too much force out when an officer question proper, the answer was was a citizen. objection responsive to either no counsel and there was question or the answer. question
The second was: officer, against an are charges if these are sustained “And happen to an officer?”1 you what could aware of clearly speculation. question It at least one calls for violates 1This cross-examination, Younger, in advocacy A Letter see commandments traditional Cross-Examination, ABA Lays Down the Ten Commandments Which Cicero (1977), suggest leading it the answer Litigation, in it was not nor did Vol. No. Thus, ways. question of irrelevant could be answered dozens witness. The improper calling question for was to rule that had discretion asked, question a fact that “Isn’t it speculation. If had reframed counsel investigation your independent conduct procedures full call for a internal hand, question proper. was bureau?,” been On other would have *15 The officer answered as follows: happen. varying things
“A There are that can Internal investigation Affairs can decide to turn the over to the may proceeding, detectives who want to do it like a criminal because, knowing if Internal me that I Affairs interviews what — say any going against is to be used me in because or Court — they officer because it would be coerced out of me or could just Chief, send it can decide to and the Chief discipline, appeal go and the union can and it can to decide to happen.” just things arbitration. There’s all that can kinds of say? only spec- What did he not Isn’t this answer ulative but profoundly confusing? confusing If it is reader, jury would it not be to a who would hear the confusing answer in fleeting a moment and would not have a prolonged period of time to sit decipher down to the transcribed answer?
The first sentence of officer’s answer does not tell anything: varying things happ “There are that can e n."
The second sentence consists of 83 words with sev- eral incomplete clauses. In an to attempt decipher this sen- tence, we separate it into sections as follows: Internal Affairs can decide to turn over the investi-
“[1] gation may to the detectives who want to do it like a criminal proceeding because if Internal knowing Affairs interviews me that what “[a] say
I going against to be used me in Court because [parenthetically any officer] —or because it would be coerced me out of
“[b] they just could send it to the Chief and the Chief can “[2] discipline, appeal decide on and the can it union decide to go can to arbitration.”
If the part marked [1] means one coherent possibility may it may proceed prepare be that Internal Affairs in investigation they prepare the same manner as would criminal proceeding, they because know that in a later court what he proceeding say, any say, would or what officer would ask, officer, charges against reframed counsel “Isn’t it a fact are sustained an neighbors might disrespect?,” obviously his hold him in would case, improper calling proof salvaged for an In irrelevant answer. this the offer of open-end question by providing us with the officer’s answer. compelled by would be the court. This could be a civil suit city, an perhaps accused officer prosecution upon But is all complaint. the victim’s this opposite, the officer meant speculation. Perhaps Affairs like a criminal investigation Internal would treat not to incriminate proceeding respect right the officer’s says they know that he be used himself because what *16 him and out of him” at trial. The could be “coerced not confusing. Maybe is obscure and the officer did response thought began what he as he the answer. know is tells the answer jury The third sentence happen.” all kinds that can just things “There’s of speculative: transcripts of who have of our own Most us read justifiably cringe composition of our spoken words at the a Obviously, requires no law or rule of evidence sentences. a examina- response pass English grammar witness’s basic Nevertheless, as a whole is as tion. if an answer taken case confusing given and as the answer in this speculative judge offer a trial must have proof, certainly under the of conveying message a discretion either to admit the answer as confusing jury. or to it as to the jury, being to the exclude concept OEC 403 is founded on the of granting confusing misleading discretion to the trial court to exclude or provides: evidence. OEC 403 relevant,
“Although pro- be excluded its substantially outweighed danger value is bative of issues, prejudice, misleading or unfair confusion jury, delay presenta- or considerations of undue or needless added.) (Emphasis tion of cumulative evidence.” any solid conveys legal If the discretion minds word others, it is the idea meaning, one central idea above all core of See, Discretion the Trial Rosenberg, of choice. Judicial (1971). Court, Above, Syracuse L Rev Viewed from whole, case, the choice “Taken judge’s In this trial was: really deciding to the in helpful this answer jury?” it to confuse or mislead the of the witness does tend discretionary court, in the trial court’s second-guessing This freedom of choice. decision, judge deprives the potentially misleading Because of the confusing response,2 admission the decision for or exclusion falls within corollary the ambit of OEC 403 in at the time and its law effect of this event. We should not disturb the trial court’s discre- tionary ruling in this case.
Peterson,
J., joins
dissenting opinion.
C.
in this
judge
merely
confusing
jury,
2If the trial
had
excluded the answer as
we
However,
ruling
judge
should affirm his
under OEC 403.
excluded the
proof by saying:
evidence after the offer of
going
proof,
gave
“I’m not
to allow the
I
on this matter of
it,
complaint
reason for
as I said
I
before. assume there must be a
filed with the
Department by somebody
any activity
place.
Police
before
takes
leave an
You
jury,
way,
complaint
inference with this
in a
that would be that he did have some
* * *”
something
to that effect filed
him
the effect
it.
Although may
reason,
right thing
wrong
it
be that the trial
did the
for the
he
See,
might
Hubbard,
350, 360-62,
(1983)
App
be correct.
State v.