Evidence of Bias
by: M saltzman • June 27, 2011 • no comments
This post addresses the question of when a complainant's bias against the defendant may be admitted at trial, particularly in the context of a possible false accusation.
Oregon law allows "wide leeway" to impeach the credibility of witnesses. Kirkpatrick, Laird C., Oregon Evidence, § 609-1.03[1]. "To evaluate the credibility of a witness fairly, the jury should hear all the facts relating to possible bias and self-interest." Text of Legislative Commentary to Oregon Rule of Evidence 609-1, included in Kirkpatrick, supra at § 609-1.02; see also Clevenger v. Scallhorn, 205 Or. 209, 215 (1955) ("It is always permissible to show the interest or bias of an adverse witness.") (internal quotations omitted); State v. Smalley, 6 Or.App. 516, 518 (1971) ("In weighing the testimony of a witness the jury is entitled to know the bias, if any, that the witness entertains for the defendant."). While Oregon Rule of Evidence 609-1 states that a witness' credibility may be impeached "by evidence that the witness engaged in conduct or made statements showing bias or interest," ORS 40.360, the Oregon Supreme Court has interpreted this language broadly, holding that "bias due to friendship, family relationship, etc . continue to be viable forms of impeachment even though no conduct or statement is involved." State v. Brown, 299 Or. 143, 150 (1985); see also Text of Legislative Commentary to Oregon Rule of Evidence 609-1, included in Kirkpatrick, supra at § 609-1.02 ("Acts, relationships or motives that are likely to produce bias or interest therefore have been examinable for the purpose of impeaching credibility."). Therefore, even where a claimant has not specifically acted in such a way as to indicate bias but has a relationship with the defendant that would naturally suggest such bias, evidence of this relationship should be admissible at trial.
In addition, the court should admit any evidence that suggests a motive a complainant might have for falsely accusing the defendant. Under Oregon case law, evidence suggesting a possible motive for a claimant to have made a false accusation is relevant and admissible at trial. See Stevens v. State, 322 Or. 101, 109 (1995); State v. Cunningham, 164 Or.App. 680, 693 (2000). In Stevens, the Oregon Supreme Court found evidence suggesting a possible motive for a false accusation relevant where the case "necessarily turned on the credibility of the complaining witness." 322 Or. at 109. Similarly, in Cunningham, the Oregon Court of Appeals held that evidence of the alleged rape victim's pecuniary sexual relationship with another man was relevant and admissible, as it offered a possible motive for a false accusation. 164 Or.App. at 693.
The court has discretion to exclude evidence relevant to a witness' bias, but only if the evidence in question is duplicative of facts already established. See State v. Hubbard, 297 Or. 789, 798 (1984) ("The discretion of the trial judge to exclude evidence relevant to bias or interest only obtains once sufficient facts have been established from which the jury may infer that bias or interest."). In addition, the court's discretion to limit the impeachment of witnesses is even more narrowly circumscribed in criminal cases, where defendants have a constitutional right to confront adverse witnesses, see State v. Najibi, 150 Or.App. 194, 202 (1997), and especially where "the evidence suggests that the victim has a bias against the defendant or a motive to accuse falsely," State v. Driver, 192 Or.App. 395, 403 (2004). As such, the trial court has only very limited discretion to exclude such evidence.
However, the court should only allow admission of extrinsic evidence of a claimant's possible bias if such evidence serves to refute the claimant's testimony. Oregon Rule of Evidence 609-1(2) states,
"If a witness fully admits the facts claimed to show the bias or interest of the witness, additional evidence of that bias or interest shall not be admitted. If the witness denies or does not fully admit the facts claimed to show bias or interest, the party attacking the credibility of the witness may then offer evidence to prove those facts. ORS 40.360."
As such, to the extent that a complainant admits under examination to the facts suggesting she may have a bias against the defendant or a motive to falsely accuse, the court will probably not allow the admission of extrinsic evidence suggesting these same facts. Only to the extent that the complainant denies such facts in her testimony should the court admit the relevant extrinsic evidence, for the purpose of impeaching her credibility.
