State v. Aranda

                                      178

Argued and submitted October 7, 2021, vacated and remanded April 20, petition
             for review allowed September 16, 2022 (

)
                       See later issue Oregon Reports


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  STEPHEN ANDREW ARANDA,
                      Defendant-Appellant.
                    Lane County Circuit Court
                      19CR07375; A171800
                                  

    Defendant appeals a judgment of conviction for one count of first-degree rape.
ORS 163.375. On appeal, he assigns error to the admission of evidence of his
prior convictions for first-degree sexual abuse for impeachment purposes under
OEC 609(1)(a). Defendant contends that the trial court’s refusal to determine
whether the probative value of his convictions was substantially outweighed by
the danger of unfair prejudice under OEC 403 violated his right to due process
under the federal constitution. Held: The Due Process Clause of the Fourteenth
Amendment to the United States Constitution requires a trial court, if requested
by the defense, to balance the probative value of the prior conviction against its
prejudicial impact before allowing impeachment by prior conviction under OEC
609(1)(a).
    Vacated and remanded.



    Charles M. Zennaché, Judge.
   David Sherbo-Huggins, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Joanna L. Jenkins, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
    KAMINS, J.
    Vacated and remanded.
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        KAMINS, J.
         Defendant appeals a judgment of conviction for
one count of first-degree rape. ORS 163.375. On appeal, he
assigns error to the admission of evidence of his prior convictions for first-degree sexual abuse for impeachment purposes under OEC 609(1)(a). We reject defendant’s remaining assignments of error without discussion. Defendant
contends that the trial court’s refusal to conduct OEC 403
balancing—the process of determining whether the probative value of his convictions is substantially outweighed by
the danger of unfair prejudice—before admitting such evidence violated his right to due process under the federal constitution. We agree with defendant and vacate and remand
for further proceedings.
        Defendant was charged with rape in the first degree
for conduct that occurred during the course of a birthday
party. The circumstances surrounding the allegations
were contested at trial, with many of the witnesses who
attended the party testifying in starkly contradictory ways.
Ultimately, defendant took the stand and asserted that the
underlying sexual interaction was consensual.
         At the trial, the prosecutor sought to impeach
defendant’s testimony with evidence of his prior convictions pursuant to OEC 609(1)(a). Defendant objected, arguing that his prior convictions for first-degree sexual abuse
should be excluded under OEC 403 as unduly prejudicial.
Additionally, defendant argued that admitting evidence
of his prior convictions through OEC 609 was unconstitutional as applied to him under the Due Process Clause of the
Fourteenth Amendment to the United States Constitution if
the court did not undertake OEC 403 balancing. The trial
court disagreed, reasoning that the evidence was not being
offered by the state “without any action by defendant,” but
rather defendant himself triggered its admission by choosing to testify, and the defense attorney had not identified
any case in which OEC 403 balancing was required under
the federal constitution in the context of impeachment evidence. The court also reasoned that any prejudice could be
adequately addressed by an instruction to the jury limiting their consideration of the evidence to its impact on the
180                                             State v. Aranda

credibility of defendant’s testimony. The jury unanimously
convicted defendant of first-degree rape.
          On appeal, defendant contends that the potential
prejudice inherent in the admission of his sexual abuse
convictions substantially outweighed any probative value
it offered as to his credibility as a witness. As a result, he
argues, allowing the prosecution to impeach defendant with
his prior convictions without considering the prejudicial
effect of those convictions rendered the trial fundamentally
unfair in violation of his right to due process under the
federal constitution. The state responds that OEC 609 is a
“per se” rule that is “absolute” in requiring the admission of
felony convictions and crimes of dishonesty for purposes of
impeachment, regardless of the prejudicial effect of those
convictions. Because the use of convictions to impeach a testifying defendant is historically permissible, the state reasons that OEC 609’s per se requirement does not offend due
process.
         We review the question of whether the Due Process
Clause requires OEC 403 balancing in the context of
impeachment under OEC 609(1)(a) for errors of law. See State
v. Williams, 

, 

 (2015) (reviewing
for legal error whether due process requires OEC 403 balancing in the context of prior bad acts evidence).
         OEC 609(1) provides:
      “For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of
   a crime shall be admitted if elicited from the witness or
   established by public record, but only if the crime:
      “(a) Was punishable by death or imprisonment in
   excess of one year under the law under which the witness
   was convicted; or
      “(b)   Involved false statement or dishonesty.”
By its plain terms, “evidence that the witness has been convicted of a crime shall be admitted.” 

 (emphasis added).
The limitations on that requirement relate to the type and
timing of the conviction: It must have occurred within 15
years, relate to dishonesty, or be punishable by death or
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more than a year of imprisonment. Id.; OEC 609(3)(a). There
is no debate that defendant’s prior convictions were punishable by more than a year of imprisonment and the date
of conviction was within 15 years, so OEC 609(1)(a) mandates their admission to impeach his testimony. See State v.
Phillips, 

, 

 (2021) (OEC 609 “preempt[s] any balancing of the probative value of the conviction against its prejudicial effect to the defendant” (internal
quotation marks omitted)); State v. Venegas, 

, 

 (1993), rev den, 

 (1994) (recognizing that “OEC 609(1) requires evidence of a prior felony
conviction to be admitted in order to impeach a witness”
(emphasis in original)). Under the plain terms of the rule,
therefore, the trial court had no choice but to admit defendant’s convictions to impeach his testimony. The question
is whether that “absolute” requirement contained in OEC
609(1)(a) violates due process.1
         The Due Process Clause “requires the exclusion of
evidence that, if admitted, would render a trial fundamentally unfair.” State v. Baughman, 

, 

 (2017). Specifically, due process can require empowering a trial court judge to balance evidence’s probative
value against its prejudicial impact under OEC 403 before
admitting it. Although OEC 404, the evidentiary rule relating to bad acts, is silent on whether OEC 403 balancing is
allowed or required, the Oregon Supreme Court concluded
in Baughman that the Due Process Clause “requires the
application of OEC 403.” Baughman, 

 (citing
Williams, 

). Furthermore, “OEC 403 balancing
must be conducted to preclude the admission of concededly
relevant evidence that has the capacity to lure the factfinder
into declaring guilt on a ground different from proof specific
to the offense charged.” Id. at 402-03 (internal quotation
marks omitted). Although the admission of prior convictions
for impeachment purposes under OEC 609(1)(a) was not at
issue in Baughman, defendant argues that the same principles apply.

     1
       Because defendant’s sexual abuse convictions do not implicate OEC 609
(1)(b), which pertains to crimes involving false statement or dishonesty, we do
not address the interaction, if any, between the Due Process Clause and OEC
609(1)(b).
182                                                       State v. Aranda

         To determine whether an evidentiary rule—in this
case, OEC 609(1)(a)’s per se requirement that prior convictions be admitted as impeachment evidence—violates the
federal Due Process Clause, we must attempt to determine
how the United States Supreme Court would resolve that
question. Williams, 

 (“Because the United States
Supreme Court is the final arbiter of federal constitutional
requirements, we must endeavor to determine how that
Court would decide the question that the parties present:
Whether the Due Process Clause requires the application
of OEC 403.”). The primary guide for determining whether
an evidentiary rule is required by the federal constitution is
“historical practice.” 

.
          Unsurprisingly, defendant and the state present
different views of the historical practice in Oregon of admitting prior convictions to impeach a witness without allowing
a trial court to conduct OEC 403 balancing. Viewing the history through a wide lens, the state posits that impeachment
by conviction initially reflected a historic reform that favored
defendants’ rights—prior to allowing such impeachment,
individuals with prior convictions were disqualified from
testifying at all. See Phillips, 

 (“The practice
of impeaching a witness with evidence of prior convictions
traces its origin to the common-law tradition that disqualified any person convicted of an ‘infamous’ crime—a category
that generally included treason, felonies, and crimes of dishonesty and false statement—from testifying as a witness
in any case.” (Citing Francis Wharton, 1 A Commentary on
the Law of Evidence in Civil Issues § 397, 350 (3d ed 1888).)).
The state contends that impeachment by conviction has
been allowed in Oregon for many years, regardless of “the
nature” of the conviction. In the state’s view, there was
only a brief period in the 1980s when the Oregon legislature revised OEC 609(1)(a) to require trial courts to conduct OEC 403 balancing prior to admitting a defendant’s
past convictions. See former OEC 609(1) (1981), amended
by Or Laws 1987, ch 2, § 9.2 After those revisions, the vot-
   2
     Former OEC 609(1) (1981) provided:
       “For the purpose of attacking the credibility of a witness, evidence that
   the witness has been convicted of a crime in other than a justice’s court or a
   municipal court shall be admitted if elicited from the witness or established
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ers weighed in through the passage of Ballot Measure 10
(1986), which removed any ability for trial courts to balance
a conviction’s prejudicial effect against its probative value.
Or Laws 1987, ch 2, § 9; see also State v. Dick, 

, 

, rev den, 

 (1988) (“Ballot
Measure 10 amended OEC 609(1)(a) to delete the portion
of the sentence which prescribed a weighing of probative
value against prejudicial effect.”). In the state’s view, Ballot
Measure 10 restored Oregon to its long-standing practice of
mandating the admission of prior convictions for impeachment purposes.
         Defendant narrows the focus of the historical practice inquiry from the origins of impeachment by prior conviction to the specific discretion of a trial court to exclude
unduly prejudicial prior convictions. With the history so
framed, defendant contends that the “only time periods
since Oregon became a state during which Oregon courts
could not exclude this type of evidence if unduly prejudicial” were around six years in the 1970s and following the
1986 passage of Ballot Measure 10. That period in the 1970s
occurred after the Oregon Supreme Court interpreted the
plain language of the rule as denying any discretion to a
trial court to balance convictions admitted for impeachment
purposes, although the constitutionality of such a rule was
not raised before the court. Marshall v. Martinson, 

, 

 (1974).3 Approximately six years after
the decision in Marshall, the Oregon legislature revised
the rule’s language to explicitly grant that discretion to a
trial court, a decision that was overturned by the passage of
Ballot Measure 10. See Phillips, 

 (recounting history). Given that history, defendant argues that it is
only in the modern era and a brief period in the 1970s that
Oregon trial courts have lacked this authority.

    by public record, but only if the crime (a) was punishable by death or imprisonment in excess of one year under the law under which the witness was
    convicted, and the court determines that the probative value of admitting
    this evidence outweighs its prejudicial effect to the defendant, or (b) involved
    false statement.”
    3
      The question of whether the Due Process Clause requires OEC 403 balancing before admitting prior convictions under OEC 609 was argued before the
court on one other occasion, and the court explicitly declined to address that
issue. State v. King, 

, 

 (1989)
184                                            State v. Aranda

         As defendant’s claim arises under the federal constitution, the proper lens is wider than that used by either
party. Although Oregon’s experience is one source of “historical practice,” Oregon’s history is not primary in a federal
constitutional analysis. See Washington v. Glucksberg, 

, 

, 

 (1997) (“We
begin, as we do in all due process cases, by examining our
Nation’s history, legal traditions, and practices.”). Indeed,
when deciding that the federal Due Process Clause requires
subjecting proffered “other acts” evidence to OEC 403,
the Oregon Supreme Court looked to federal and United
States Supreme Court jurisprudence. Williams, 

. When that jurisprudence did not provide a definitive
answer, the court revisited “the principles that animate the
Due Process Clause.” 

.
          Thus, we look to the broader historical practice of
the role of a testifying witness’s prior conviction. A conviction
at common law for certain “infamous” crimes, “rendered the
convict completely incompetent as a witness.” 1 McCormick
on Evidence § 42 (8th ed 2020). As a result, individuals who
had previously been convicted of a serious crime were simply not permitted to testify. Id. That “disqualification arose
as part of the punishment for the crime, only later being
rationalized on the basis that such a person was unworthy
of belief.” Green v. Bock Laundry Mach. Co., 

,

, 

 (1989) (citing 3 J. Weinstein
& M. Berger, Weinstein’s Evidence 609-[02], 609-58 (1988)).
          Eventually, that total disqualification was replaced
with a rule that allowed such witnesses to testify but face
impeachment by evidence of their convictions. 

.
Just as with the initial prohibition on receiving testimony
from a person convicted of a crime, a character-based rationale justified the admission of prior convictions for impeachment purposes: “A person who was willing to break the law
would also be willing to lie on the stand.” Phillips, 

 (citing Wharton, 1 A Commentary on the Law of Evidence
in Civil Issues § 397 at 350, § 567 at 552). As Justice Holmes
articulated more than a century ago:
   “[W]hen it is proved that a witness has been convicted of
   a crime, the only ground for disbelieving him which such
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   proof affords is the general readiness to do evil which the
   conviction may be supposed to show. It is from that general
   disposition alone that the jury is asked to infer a readiness to lie in the particular case, and thence that he has
   lied in fact. The evidence has no tendency to prove that he
   was mistaken, but only that he has perjured himself, and
   it reaches that conclusion solely through the general proposition that he is of bad character and unworthy of credit.”
Gertz v. Fitchburg R. Co., 137 Mass 77, 78 (1884).
          As courts allowed the admission of convictions for
impeachment purposes, a new risk surfaced—namely that
“jurors might give more weight to the past convictions as
evidence that the accused is the kind of person who would
commit the crime charged.” 1 McCormick on Evidence § 42
(8th ed 2020). The risk that a prior conviction—even when
used for impeachment—may have an improperly prejudicial
effect is indisputable. See Green, 

 (relating
history of efforts of Congress and federal courts to mitigate
prejudicial effect of convictions used for impeachment purposes); FRE 609 Commentary (1990) (“[I]n virtually every
case in which prior convictions are used to impeach the
testifying defendant, the defendant faces a unique risk of
prejudice—i.e., the danger that convictions … will be misused by a jury as propensity evidence despite their introduction solely for impeachment purposes.”).
          Indeed, “[t]he law has long recognized that evidence
of prior crimes is inherently prejudicial to a defendant in a
criminal case.” State v. King, 75 Wash App 899, 905, 

 (1994), rev den, 125 Wash 2d 1021, 

(1995). That is, “[i]t is difficult for the jury to erase the notion
that a person who has once committed a crime is more likely
to do so again.” State v. Jones, 101 Wash 2d 113, 120, 

 (1984), overruled in part on other grounds by State v.
Brown, 113 Wash 2d 520, 

 (1989) (recognizing
that statistical studies have shown that, even with limiting
instructions, a jury is more likely to convict a defendant with
a criminal record); see also Gordon v. United States, 383 F2d
936, 940 (DC Cir 1967), cert den, 

 (1968) (recognizing inevitable pressure on lay jurors to believe that “if he
did it before he probably did so this time”); Roselle L. Wissler
& Michael J. Saks, On the Inefficacy of Limiting Instructions:
186                                                         State v. Aranda

When Jurors Use Prior Conviction Evidence to Decide on
Guilt, 9 Law & Hum Behav 37 (1985).
         As was the case for the admission of prior bad acts
in Williams, the historical practice of admitting convictions
for impeachment purposes demonstrates that a risk of prejudice exists but does not provide a definitive answer as to
whether the Due Process Clause requires a trial court to
conduct OEC 403 balancing to determine if the convictions
under OEC 609(1)(a) are overly prejudicial. Williams, 

. When concluding that prior bad acts must be subject
to constitutional balancing, the Oregon Supreme Court had
the benefit of federal case law addressing the issue. 

. Specifically, federal courts had confronted whether
the federal rules of evidence allowing the admission of prior
bad acts in sexual assault cases were subject to balancing
under the federal counterpart to OEC 403. See, e.g., United
States v. Enjady, 

 (10th Cir), cert den, 

 (1998) (concluding that FRE 413 is subject to FRE
403, and acknowledging that most arguments that FRE 413
is unconstitutional are based on the assumption that FRE
403 does not apply); see also Johnson v. Elk Lake Sch. Dist.,

, 155 n 12 (3d Cir 2002) (recognizing that “a
policy of mandatory admission, particularly in the criminal
context, has been thought to raise serious constitutional
concerns under the Due Process Clause”).
         However, for purposes of impeachment of a testifying
criminal defendant, the federal rule already requires balancing for any crime that does not involve dishonesty. FRE 609(a).4

   4
     FRE 609(a) provides:
       “The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:
       “(1) for a crime that, in the convicting jurisdiction, was punishable by
   death or by imprisonment for more than one year, the evidence:
       “(A) must be admitted, subject to Rule 403, in a civil case or in a criminal
   case in which the witness is not a defendant; and
       “(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to
   that defendant; and
       “(2) for any crime regardless of the punishment, the evidence must be
   admitted if the court can readily determine that establishing the elements of
   the crime required proving—or the witness’s admitting—a dishonest act or
   false statement.”
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Congress included that requirement due to concerns that
the rights of a criminal defendant would be jeopardized by
the introduction of prior convictions that could improperly
influence a jury. See Robert D. Dodson, Esq., What Went
Wrong with Federal Rule of Evidence 609: A Look at How
Jurors Really Misuse Prior Conviction Evidence, 48 Drake
L Rev 1, 10 (1999) (observing that “Rule 609 attempted to
strike a compromise between the need to admit prior conviction evidence to impeach a witness and the accused’s right
to a fair trial”). Because the plain text of FRE 609 requires
balancing, there does not appear to be useful federal case
law addressing whether the Due Process Clause requires
OEC 403 balancing.
          Oregon appears to be an outlier with its “absolute”
prohibition on a trial court’s consideration of the prejudicial
impact of a prior conviction under OEC 609(1)(a) prior to its
admission. Most states have modeled their rule after FRE
609, and either allow or require trial courts to balance the
conviction’s probative value against its prejudicial effect,
often setting forth factors to guide that effort. See, e.g., State
v. Schwab, 

 (Minn Ct App 1987) (citing
Minn R Evid 609 which requires balancing and outlining
the five additional factors the Minnesota Supreme Court
requires trial courts to consider when determining whether
to admit evidence of a prior conviction); Commonwealth v.
Kearse, 

 (Pa Super Ct 1984) (explaining that, when determining the admissibility of evidence of
prior convictions for impeachment, a trial court must determine whether the probative value outweighs the prejudicial
effect); People v. Castro, 38 Cal 3d 301, 311-13, 211 Cal Rptr
719, 725, 

 (1985) (allowing trial courts
to engage in balancing despite voter initiative making prior
convictions admissible “without limitation”).
          Indeed, some state courts have concluded that
the admission of prior convictions is so inherently prejudicial and of such limited probative value as to a testifying
defendant’s credibility that they are only admissible if the
testifying defendant opens the door to that conviction. See,
e.g., State v. Johnson, 21 Kan App 2d 576, 578-79, 

 (1995) (explaining that, unless a defendant introduces evidence solely for the purpose of supporting their
188                                           State v. Aranda

credibility, the admission of prior convictions is improper);
State v. Santiago, 53 Haw 254, 259-60, 

(Haw 1971) (because “prior convictions are of little real
assistance to the jury in its determination of whether the
defendant’s testimony as a witness is credible,” their probative value is outweighed by the burden imposed on a defendant’s right to testify).
         As is the situation with federal courts, because most
states either allow or require trial courts to engage in OEC
403 balancing before admitting prior convictions for impeachment, not many state courts have addressed whether OEC
403 balancing in this context is a constitutional requirement. The question those courts have addressed appears to
be whether the use of convictions for impeachment at all violates due process, with many states concluding that it does
not. See, e.g., State v. Kelley, 120 NH 14, 18-19, 

 (1980) (use of prior convictions for impeachment does
not violate due process); Johnson v. State, 380 So 2d 1024,
1026 (Fla 1979) (concluding that procedure in the state to
allow impeachment by prior conviction without naming the
offense does not violate due process); Lowell v. State, 

 (Alaska 1978), overruled in part on other
grounds by Lamb v. Anderson, 

 (Alaska 2006)
(declining to find that impeachment by prior conviction
violates due process); but see Santiago, 53 Haw at 260-61,

 (concluding that to allow the introduction of
prior convictions in a criminal case to prove a defendant’s
testimony is not credible is at odds with the Due Process
Clause); Castro, 38 Cal 3d 301 at 314, 211 Cal Rptr at 726-
27, 

 (concluding that to permit impeachment
by felony convictions which do not involve moral turpitude
would violate the Due Process Clause). Therefore, the historical practice in other states does not provide us with a
clear answer as to whether the Due Process Clause requires
a trial court to engage in OEC 403 balancing before allowing impeachment by prior conviction under OEC 609(1)(a).
         Because “historical practice” does not provide a
clear answer other than identifying the risk of prejudice,
we turn, as Williams instructs, to “the principles that animate the Due Process Clause.” 

. The first of
those principles is that “the admission of evidence that is so
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extremely unfair that it violates ‘fundamental conceptions of
justice’ violates the Due Process Clause.” 

 (quoting United
States v. Lovasco, 

, 

, 

 (1977)). Second, unfair prejudice to a criminal defendant occurs when the state presents “some concededly relevant evidence to lure the factfinder into declaring guilt on a
ground different from proof specific to the offense charged.”

 (citing Old Chief v. United States, 

, 

, 

 (1997)). One specific risk of that
occurs when a jury might “ ‘generaliz[e] a defendant’s earlier
bad act into bad character and tak[e] that as raising the
odds that he did the later bad act now charged.’ ” 

 (quoting Old Chief, 

 (brackets added)). Finally, the
“violation of due process that may result from such unfair
prejudice is obviated by the application of a rule of evidence
that permits a court to consider the risk of prejudice and
exclude the evidence when appropriate.” 

 (citing Dowling
v. United States, 

, 

, 

 (1990)).
         Those principles point in one clear direction. As
described above, the risk of prejudice stemming from the
introduction of prior convictions is widely recognized.
That risk trips precisely the same wire that runs through
the Oregon Supreme Court’s decisions in Williams and
Baughman. A jury that learns of the defendant’s prior conviction may conclude that the defendant has the propensity to commit crimes. Indeed, the original rule prohibiting
those convicted of a crime from testifying stemmed from a
character-based rationale—that those who would violate
the law are unable to comply with an oath. Similarly, the
use of convictions for the purpose of impeachment invites
the jury to conclude that the defendant cannot be trusted
today because they violated the law yesterday. Whatever
the probative value of those convictions as to the credibility
of a witness, it is not so absolute that the risk of prejudice
should not be considered. See United States v. LeMay, 

 (9th Cir 2001), cert den, 

 (2002)
(“As long as the protections of Rule 403 remain in place to
ensure that potentially devastating evidence of little probative value will not reach the jury, the right to a fair trial
remains adequately safeguarded.”).
190                                           State v. Aranda

         This case provides an apt example. Defendant was
accused of rape, and in a trial that hinged on credibility,
defendant took the stand to tell his side of the story. Because
he testified, the jury learned of defendant’s prior convictions
for sexual abuse. The risk that the jury considered this
evidence outside of its limited purpose for credibility was
certainly present. To ensure that the jury did not convict
defendant based on improper factors, due process required
that the trial court, if requested by the defense, determine
whether the probative value of the sexual abuse convictions
was substantially outweighed by the risk of unfair prejudice. We remand for the trial court to conduct such balancing. Baughman, 

.
        Vacated and remanded.