State v. Estlick , 269 Or. 75 ( 1974 )

DENECKE, J.

The defendant, an insurance claims adjuster, was convicted of obtaining money by false pretenses. He allegedly obtained money by paying claims, which he knew to be false, to Evans Smith and accepting from Smith a share of the proceeds. The Court of Appeals affirmed the conviction. 14 Or App 288, 511 P2d 1250 (1973). We granted review.

At the trial the state called Smith as its first witness. He testified he was serving a term in the penitentiary and had pleaded guilty to a charge involving the same transaction involved in the present charge against defendant. The defendant objected to this testimony; however, he did not assign as error the receipt of this testimony into , evidence. For this reason we will not consider any issue concerning the receipt of this part of Smith’s testimony.

Smith was then permitted to testify over objection to the following: (1) that he was on “work release” with his parole date approaching and a state correctional officer loaned Smith $25; (2) that an investigator for an insurance company threatened Smith that if he did not testify, additional charges would be brought against him, and also against his wife, but that the insurance investigator would “go to bat” for him if he testified; and (3) that the state’s attorney had said, nevertheless, that he would not be involved in any threats or promises and had offered no such inducements; and (4) that the state’s attorney had told Smith that if he testified the state’s attorney would notify the parole board of his testimony.

The testimony received is a combination of a showing of grounds for bias and interest and an attempt to negate an inference of bias and interest. Showing bias and interest of a witness is a method of impeachment. The defendant objected to the testimony upon the ground that the state was impeaching its own witness contrary to OES 45.590. We will assume, without deciding, that this was impeaching testimony.

OES 45.590 provides, in part: “The party producing a witness is not allowed to impeach his credit by evidence of bad character, but he may contradict him by other evidence, and may also show that he has made at other times statements inconsistent with his present testimony, as provided in OES 45.510.”

The rule at common law was that a party calling a witness could not impeach that witness. This broad rule is universally attacked as being without any virtue. 3A Wigmore, Evidence (Chadbourn Eev), 658-663, §§ 896-899; Morgan, Basic Problems of Evidence, 69-71 (1962); McCormick, Evidence (2d ed), 75, § 38.

OES 45.590 modifies the common law and enacts a very limited ban on impeaching, a witness produced by the party. See State v. Cummings, 205 Or 500, 521-522, 288 P2d 1036, 289 P2d 1083 (1955). OES 45.590 only prohibits impeaching by evidence of bad character.

On occasion this court has made statements that what is now OES 45.590 restates the common law: State v. Hunsaker, 16 Or 497, 499, 19 P 605 (1888); State v. Ede, 167 Or 640, 644, 117 P2d 235 (1941); or that ORS 45.590 forbids any impeachment of a witness by a party who called the witness. State v. Briggs, 245 Or 503, 508, 420 P2d 71 (1967). All such statements are incorrect.

ORS 45.590 does not prohibit a party from impeaching a witness it has produced by a showing of bias or interest. We know of no reason why we should adopt such a prohibition by judicial decision. Assuming that the testimony is regarded as impeachment by a showing of bias and interest, we find the trial court’s ruling was not in error.

The defendant also objected to this testimony upon the ground that the state was attempting to “buttress” Smith’s credibility by this testimony. We are not quite certain what the defendant intended by using the word “buttress,” but from the context and the arguments we understand the defendant’s contention to be twofold: (1) that the state was trying to take the “sting” out of evidence of the witness’s bias and interest by bringing it out itself rather than waiting for the defendant to bring it out on cross-examination; and (2) that the state was rehabilitating, its witness by testimony of lack of interest or bias before the witness was impeached.

In the first category was the testimony that a correctional officer had loaned the witness $25; that the insurance agent told Smith he would help him if he testified but would bring charges against him if he did not testify; and that the state’s attorney would notify the parole board if the witness testified. Such testimony is in no way rehabilitative.

We have never decided the issue raised as the first basis for defendant’s objection; that is, the propriety of introducing on direct examination testimony of bias and interest on the part of one’s own witness. Most of the decisions from other jurisdictions on this practice concern the government introducing evidence of the criminal convictions of its own witness.^① We are persuaded by the reasoning of other courts which, in general, permit the state to offer, on direct examination, testimony relevant to the credibility of its witness.

This reasoning is stated in Vause v. United States, 53 F2d 346, 351 (2d Cir 1931), cert den 284 US 661, 52 S Ct 37, 76 L Ed 560:

“Closely akin to this class of exceptions to evidence which put Montgomery, Yause, and Schuchman into the category of co-workers was the evidence that Montgomery was known to be a man who could and would indulge in trickery and fraudulent financial schemes, and was an ex-convict because of his previous practices in that regard. When Montgomery was put upon the stand to testify for the government, the district attorney introduced him to the jury by questions and answers which brought out his real character. His credibility as a witness was an important matter for the jury to decide in order to get at the truth, and there is certainly no point in condemning the district attorney for frankly disclosing at the outset what would enable the jury to do its duty in that regard. The complaint now made rather savors of the thought that he stole a march on these defendants in not letting that phase of the matter wait until they could, if they saw fit, bring out the facts on cross-examination and make the most of their apparent desire to put the witness in his proper place and themselves show that the ease against them rested in part on the word of a man of abandoned character. * *

Chief Judge Lumbard in United States v. Freeman, 302 F2d 347, 350 (2d Cir 1962), cert den 375 US 958, 84 S Ct 448, 11 L Ed2d 316, stated:

“Of course it was proper for the government to bring out on direct examination the criminal record of its witness. United States v. Murray, 297 F.2d 812 (2 Cir. 1962). Not to have done so would surely have subjected the prosecution to criticism. The matter of informing court and jury about information of such clear relevance as the criminal record of a witness called by the prosecution is not something which is to be reserved for the pleasure and strategy of the defense. Whatever the rule may be with respect to the permissible limits for cross-examination nf a witness or a defendant, * * * it is usually proper and desirable that the party calling a witness with a criminal record should elicit such information on direct examination.”

The Supreme Court of Pennsylvania stated the reasoning:

“Defendant also complains of the District Attorney’s bringing out the criminal past of his witnesses and of his cross-examining defendant about his own.

“We see no reason to nullify a prosecutor’s manoeuvre in anticipating what he may be sure defense counsél will bring out. This is not impeaching counsel’s own witness but rather the legitimate thrust and riposte of trial tactics.” Commonwealth v. Garrison, 398 Pa 47, 52, 157 A2d 75 (1959).

Parties to a lawsuit must call witnesses who have knowledge of the facts, regardless of their bias or interest. If the party calling the witness is prohibited from eliciting testimony showing such bias or interest, the calling party is prejudiced. When the opposing party on cross-examination shows the bias or interest the jury might well believe the party calling the witness was concealing evidence adverse to the witness’s credibility. Such a practice would be unfair. Accordingly, we hold that the trial court did not err in permitting the state to introduce on direct examination testimony of its witness’s bias or interest.^②

Testimony that the district attorney never made any threats or promises to the witness is rehabilitative, tending to show no interest. Ordinarily, receipt of such evidence before the introduction of any impeaching testimony showing interest would be error. For example, Sheppard v. Yocum and DeLashmutt, 10 Or 402, 413-419 (1881-1882). In the present case, however, the receipt of such evidence is not error because it came in as a minor incident to the admission of testimony showing bias and interest which, as we here hold, was admissible.

Affirmed.

① In Oregon the use of criminal convictions in this setting raises a special question because of ORS 45.600, providing for impeachment of a witness for the adverse party by proof of conviction of a crime, and ORS 45.590, providing that one may not impeach one’s own witness by evidence of bad character. The question of impeachment by prior criminal convictions was not raised on appeal in this case and so we need not and do not pass on it here. We intend to express no opinion on the correctness of State v. Miller, 1 Or App 460, 460 P2d 874 (1970).

② The same rule, of course, would apply if the defendant was the party introducing testimony on direct examination of the bias and interest of a defense witness.