State v. Shelly
212 Or. App. 65, 2007 Ore. App. LEXIS 523, 157 P.3d 234 (2007)
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Rule of Law:
A criminal defendant must be permitted to cross-examine a prosecution witness about their probationary status, especially if at risk of revocation, to show potential bias or interest, as such evidence is generally relevant to credibility and its exclusion for an initial showing is not justified by evidentiary rules for prejudice or scope of cross-examination.
Facts:
- Defendant Tiffany Miller was acquainted with a man named Hahn and knew he kept valuable baseball cards in his apartment.
- Miller discussed the baseball cards with her friend and co-defendant, Werner.
- Miller, Werner, and another individual, Thurber, went to Hahn’s apartment.
- Hahn was not home, but his roommate, Lustri, was, and he admitted the three individuals.
- Upon entry, Thurber threw Lustri to the ground, put a machete to the back of his neck, and demanded to know where Hahn kept the baseball cards.
- Lustri revealed the location of one baseball card and some other valuable property.
- Miller and Werner then took the baseball card, some compact discs, a VCR, and a portable stereo from the apartment.
- According to Lustri, Miller also kicked him and threatened to use the machete on him.
- Approximately an hour after leaving Hahn's apartment, police found Miller, Werner, and Thurber at a friend's apartment and recovered the stolen property.
Procedural Posture:
- Defendant Miller was charged with first-degree burglary and first-degree robbery.
- At trial in the court of first instance, Miller's defense counsel sought to cross-examine prosecution witness Lustri regarding a criminal investigation that had not led to charges and about his current probationary status, including recent violations.
- The trial court refused to allow this line of questioning, citing the potential for prejudice outweighing probative value under OEC 403.
- The jury found defendant Miller guilty of first-degree robbery and first-degree burglary.
- Defendant Miller appealed her judgment of conviction to the Court of Appeals of Oregon, assigning error to the trial court’s refusal to permit the cross-examination.
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Issue:
Does the trial court commit reversible error by refusing to permit cross-examination of a key prosecution witness about their probationary status and recent violations to establish bias or interest and thereby impeach their credibility?
Opinions:
Majority - Schuman, J.
Yes, the trial court erred by prohibiting cross-examination of the prosecution witness regarding his probationary status and violations to show bias or interest, and that error was not harmless. Evidence that a person is on probation and at risk of having that probation revoked is generally relevant to their credibility when testifying for the prosecution in a criminal case, as it indicates an interest in currying favor. Relevant evidence for impeachment due to bias or interest only needs a "mere tendency" to show that bias or interest. The court's discretion under OEC 403 to exclude evidence if its probative value is substantially outweighed by prejudice, or under OEC 611(2) to control the scope of cross-examination, does not justify the exclusion of an initial showing of facts from which a witness's bias or interest may be inferred. Completely prohibiting the line of questioning regarding Lustri's probation and violations was thus an error. This error was not harmless because Lustri was the sole non-defendant witness to the crime, and his credibility was of paramount importance to the outcome of the trial, especially when weighed against the testimony of co-defendant Werner, who minimized Miller's role.
Dissenting - Hargreaves, S. J.
No, the trial court did not err because the majority either misapplied the rule regarding probation revocation risk or gave the phrase "at risk of having that probation revoked" an overly broad meaning. The record reflects that while Lustri was on probation and had recent violations, he had already been sanctioned for those violations, and there was no evidence he had any outstanding accusations of violations at the time of trial. Therefore, he was not "at risk of having that probation revoked" in a meaningful way that would create a motive to lie. The dissenting justice argued that prior cases like Davis v. Alaska and State v. Weinstein, which permitted such impeachment, involved situations where the witness's probationary status was directly linked to the facts of the case, creating a strong and immediate interest for the witness to deflect suspicion or shift blame. In contrast, Lustri's probation had "no connection whatsoever to the facts of the case," and he had no apparent need to protect himself through slanting his testimony. An expansive interpretation that equates mere probationary status with bias represents a significant and unsupported change in law, potentially allowing impeachment of any probationer, regardless of a direct link to the case or actual risk.
Analysis:
This case significantly reinforces the constitutional right of a criminal defendant to conduct effective cross-examination to expose a witness's bias or interest. It clarifies that a trial court's discretion under OEC 403 and OEC 611(2) does not permit the outright prohibition of an initial line of questioning designed to reveal a key witness's potential bias, especially when their credibility is central to the prosecution's case. The ruling establishes that evidence of probationary status, particularly when coupled with a risk of revocation, is generally relevant to show a motive to curry favor with the state. This principle helps ensure fair trials by allowing juries to adequately assess the credibility of crucial witnesses.
