Objection to UCJI 1006

by: Ryan Scott • January 3, 2026 • no comments

The standard UCrJI 1006 (“Evaluating Witness Testimony”) instruction states:

The term witness includes every person who has testified under oath in this case. Every witness has taken an oath to tell the truth. In evaluating each witness’s testimony, however, you may consider such things as:

(1) The manner in which the witness testifies.

(2) The nature or quality of the witness’s testimony.

(3) Evidence that contradicts the testimony of the witness.

(4) Evidence concerning the bias, motives, or interest of the witness.

[(5) Evidence concerning the character of the witness for truthfulness.]

“[(6) Evidence that the witness has been convicted of a previous crime.].”

In State v. Kessler, 254 Or 124, 458 P2d 432 (1969, the Oregon Supreme Court considered a challenge to the following instruction:

“* * * Now every witness is presumed to speak the truth. This presumption may be overcome by the manner in which the witness testifies, by the nature of his or her testimony, by evidence affecting his or her character, interest or motive, by contradictory evidence or by a presumption.” (Emphasis added).

The Kessler court affirmed on the grounds that the instruction had provided ways in which the presumption could be overcome:

“The bare instruction in criminal cases that a witness is presumed to tell the truth has been criticized. However, where the instruction includes, as it did in the present case, an explanation of how the presumption can be overcome it is not considered prejudicial or as rendering nugatory the presumption of innocence. Although it might be preferable not to instruct the jury in criminal cases where defendant does not take the stand that a witness is presumed to speak the truth, we find no error in giving the instruction if accompanied by an explanation of how the presumption can be overcome. * * * [W]e do not think that the instruction which defendant now attacks deprived him of the benefits of [the presumption of innocence], as we have already said, the explanation of how the presumption of credibility could be overcome would inform the jury that the presumption was not tantamount to a declaration of defendant’s guilt.”

(Footnotes omitted). Accord State v. Dowell, 16 Or App 38, 39-40, 516 P2d 1305 (1973) (citing Kessler).

Kessler has been impliedly overruled by multiple Oregon Supreme Court cases. Since 1969, the Oregon Supreme Court has repeatedly articulated and adhered to the rule that the court may not instruct the jury to draw an inference against the defendant that effectively shifts the burden of proof. State v. Hayward, 327 Or 397, 410, 963 P2d 667 (1998) (“It is well established that a trial court is not permitted to comment on the evidence.”); State v. Rainey, 298 Or 459, 467, 693 P2d 635 (1985) (holding that the court should not instruct the jury on “inferences” to be used against the accused because to do so “conflicts with the beyond-a-reasonable-doubt standard”).

Second, whatever Kessler had to say regarding the instruction’s effect on the presumption of innocence (the question at issue in Kessler), a court may not comment on the evidence by telling the jury “how specific evidence relate[s] to a particular legal issue.” State v. Brown, 310 Or 347, 373, 800 P2d 259 (1990) (trial court did not err in failing to prove the defendant’s requested instruction, because it would constitute an improper comment on the evidence); State v. Wiltse, 373 Or 1, 12, 559 P3d 380 (2024) (construing ORCP 59 E to foreclose such comments); see also State v. Nefstad, 309 Or 523, 552, 789 P2d 1326 (1990) (trial court did not err by declining to give a defendant’s requested instruction that “consciousness of guilt” “does not constitute affirmative proof as to how the crime was committed or defendant’s participation therein.”).

Third, the instruction violates the independent rule against vouching. State v. Sperou, 365 Or 121, 133, 442 P3d 581 (2019) (explaining that language that assumes the truth of an allegation constitutes a form of vouching that undermines the presumption of innocence); see also State v. Perez, 373 Or 591, 619, 568 P3d 940 (2025) (Bushong, J., concurring) (noting that prosecutors should “never suggest or insinuate” that the state, the police, or other witnesses believe witnesses and should instead confine themselves to the “standard” jury instruction on evaluating witness testimony). Because Kessler did not address vouching, this court is not bound by the Kessler holding.

Special thanks to appellate attorney extraordinaire Stacy Du Clos for coming up with this argument.