Cold Evidence: A comparison in evidence codes of Washington and Oregon

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Cold Evidence: A comparison in evidence codes of Washington and Oregon

In the office of the Hoover Law Group, a firm handling matters in Washington and Oregon, a lot can be learned from investigating the background of witnesses involving cases that span two states. As an investigator, I have to know how far back to search backgrounds of witnesses in order to determine what is admissible under the laws of both states.
The first factor in determining how far back to look into their backgrounds is how old can a criminal conviction be to be admissible in each state. Interesting enough, this is very different in Washington, than it is south of the Columbia river, in Oregon.
In Washington, under Evidence Rule 609 (b), a conviction is not admissible if “a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” ER 609 (b) of Washington State. It is required for ALL convictions that are more than 10 years old. State vs. Russell 104 Wn. App. 422 (2001).
So in Washington state, if the conviction is less than 10 years old, it can be used against a party or witness if it is a felony (over 1 year in punishment) or it involved a crime of dishonesty or false statement. So, therefore, what type of crimes do I look for in someone’s background? Theft. (See State vs. Ray, 116 Wn. 2d. 531 (1991)), Possession of Stolen Property (State vs. McKinsey, 116 Wn. 2d. 911 (1991)), Forgery (State vs. Jones 101 Wn. 2d. 113 (1984)), and for those of us in the 21st century, Identity Theft, RCW 9.35.020. But, in Washington, they are presumed inadmissible if they are more than 10 years old.
South of the Columbia River, in Oregon, this is not the case. According to the Oregon Evidence Rule 609, also known as ORS 40.355 (3) (a), Evidence of a conviction under this section is not admissible if a period of more than 15 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date or, the conviction has been expunged by pardon, reversed, set aside or otherwise rendered nugatory. (Also, notice that there is NOT a balancing test like in Washington state). ORS 40.355(3)(a). First of all, Oregon lets the investigator go back 15 years from the time of conviction or confinement ended. Talk about taking care of justice. So, some 18 year old kid steals a candy bar from the local 7-11 in Portland and then gets convicted before his 19th birthday. Now, before his 33rd birthday, he has to testify in a civil case about an auto accident he was victimized in. Guess what, that theft conviction of the candy bar is coming in as evidence against him, WITHOUT ANY BALANCING TEST LIKE IN WASHINGTON STATE. Laws like this make Oregon seem colder than Alaska.
A second factor to review is the underlying facts of the past conviction. In Washington state, the past conviction cannot be explained in factual details other than the fact that the conviction exists. In State vs. Coe, 101 Wn. 2d. 772 (1984) it was held that cross-examination as to prior convictions is limited to the facts contained in the record, that only a conviction exists.
In Oregon this is not the case. According to 609, ORS 40.355 (4), when the credibility of a witness is attacked by evidence that the witness has been convicted of a crime, the witness shall be allowed to explain briefly the circumstances of the crime or former conviction, once the witness explains the circumstances, the opposing side shall have the opportunity to rebut the explanation. Not so good here for the kid and the candy bar. The laws need to allow for judges to breath and analyze each situation. As to Oregon and Washington, and their differences in the law, Oregon is strict and Washington is a lot more analytical.

Written by Sangmee “Caria” Park. Office investigator of the Hoover Law Group.
Hoover Law Group
815 S. Weller Street, Suite 105
Seattle,WA 98104
Phone: (206) 613-3111
Fax: (206) 613-3112
650 Holladay Street Suite 1600
Portland, OR 97232
Phone: (503) 222-1276
Fax: (503) 444-3301


  1. Greg Hoover says:

    Great article. A great asset to the firm.

  2. Da Shu says:

    Excellent read. Very informative investigator.

  3. Fawn Hoover says:

    Really great work. Interesting to read.

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