State v. Aranda

No. 19 May 31, 2024 363

19

372 Or

State v. Aranda

2024

May 31, 2024

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

STEPHEN ANDREW ARANDA,

Respondent on Review.

(CC 19CR07375) (CA A171800) (SC S069641)

On review from the Court of Appeals.*

Argued and submitted February 1, 2023.

Patrick M. Ebbett, Assistant Attorney General, Salem,

argued the cause and filed the briefs for petitioner on

review. Also on the briefs were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

David L. Sherbo-Huggins, Deputy Public Defender, Office

of Public Defense Services, Salem, argued the cause and

filed the briefs for respondent on review. Also on the briefs

was Ernest G. Lannet, Chief Defender, Criminal Appellate

Section.

Aliza B. Kaplan, Lewis & Clark Law School, Portland,

filed the brief on behalf of amici curiae Coalition for Prior

Conviction Impeachment Reform, Boston University Center

for Antiracist Research, and Criminal Justice Reform Clinic

at Lewis & Clark Law School. Also on the brief was Anna K.

Sortun, Tonkon Torp LLP, Portland.

Rosalind M. Lee, Rosalind Manson Lee LLC, Eugene,

and Monica Milton, Public Defense Counsel, National

Association of Criminal Defense Lawyers, Washington, D.C.,

filed the brief on behalf of amici curiae Oregon Criminal

Defense Lawyers Association and National Association of

Criminal Defense Lawyers, respectively.

______________

* Appeal from Lane County Circuit Court, Charles Zennaché, Judge. 319

Or App 178, 509 P3d 152 (2022).

364 State v. Aranda

Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog,

and Masih, Justices, and Walters and Nakamoto, Senior

Judges, Justice pro tempore.**

DEHOOG, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is affirmed.

Walters, S.J., dissented and filed an opinion, in which

Duncan, and Masih, JJ., joined.

______________

** Nelson, J., resigned February 25, 2023, and did not participate in the

decision of this case. Bushong and James, JJ., did not participate in the consider-

ation or decision of this case.

Cite as 372 Or 363 (2024) 365

DEHOOG, J.

Oregon Evidence Code (OEC) 609(1) expressly

requires a trial court to allow the credibility of a witness

to be impeached with evidence that the witness has been

convicted of any felony. That rule applies to all witnesses,

including criminal defendants who testify in their own

defense. The text of OEC 609 does not allow a trial court to

weigh the probative value of a witness’s conviction history

against its potential for unfair prejudice, nor does it grant

courts discretion to exclude evidence based on the results of

such balancing. Moreover, under our case law, trial courts

may not subject OEC 609 evidence to that assessment under

OEC 403, which, when applicable, provides for such bal-

ancing. See State v. King, 307 Or 332, 336-37, 768 P2d 391

(1989) (OEC 609 does not permit trial courts to conduct OEC

403 balancing).1

Nonetheless, relying on our decisions in State v.

Williams, 357 Or 1, 346 P3d 455 (2015), and State v.

Baughman, 361 Or 386, 393 P3d 1132 (2017), and on the

Due Process Clause of the Fourteenth Amendment to the

United States Constitution, defendant contends—as he

has consistently contended at all stages of this case—that

OEC 403 balancing is required upon a criminal defendant’s

request whenever the state seeks to impeach the defendant’s

testimony with OEC 609(1) evidence. The Court of Appeals

agreed with that argument and, because the trial court had

declined to conduct OEC 403 balancing in his case, reversed

defendant’s conviction and remanded to the trial court to

conduct that balancing. State v. Aranda, 319 Or App 178,

189-90, 509 P3d 152 (2022).

1

When applicable, OEC 403 permits trial courts to exclude evidence upon

determining that its “probative value is substantially outweighed by the danger

of unfair prejudice[.]” We review the decision whether to exclude evidence on that

basis for an abuse of discretion. See State v. Rogers, 330 Or 282, 311, 4 P3d 1261

(2000) (“A decision to exclude evidence under OEC 403 is reserved to the trial

court’s discretion. That is so because application of OEC 403 may allow for more

than one legally correct outcome. For example, in some cases, the record may

support either the admission or exclusion of otherwise admissible evidence under

OEC 403, and neither result legally would be incorrect.”) (internal ellipses and

citations omitted). In this opinion, we refer to the application of OEC 403 in accor-

dance with its terms—that is, balancing the probative value of evidence against

its potential for unfair prejudice and making the discretionary decision whether

to exclude the evidence—as “OEC 403 balancing.”

366 State v. Aranda

On review, the state contends that the Court of

Appeals erred. In the state’s view, the admission of evidence

that satisfies the requirements of a state evidentiary rule—

including OEC 609—does not violate due process. It follows,

the state reasons, that due process did not require the trial

court to conduct OEC 403 balancing to protect defendant’s

due process rights.2 The state further argues that the Court

of Appeals’ conclusion that due process required OEC 403

balancing in defendant’s case reflects a misunderstanding

of our decisions in Williams and Baughman.

We conclude that the Court of Appeals erred, but

we do so on more limited grounds than those advanced by

the state. Before explaining that conclusion, we will briefly

address an argument that defendant raises in his sur-reply

brief, namely, that we should affirm the Court of Appeals’

decision as being “right for the wrong reason.” See, e.g., State

v. Edmonds, 364 Or 410, 415, 435 P3d 752 (2019) (explain-

ing that “the right for the wrong reason doctrine” permits a

lower court’s ruling to be affirmed on grounds the court did

not consider, provided certain conditions are met). We ulti-

mately decline defendant’s “right for the wrong reason” argu-

ment and, instead, adhere to this court’s holding in King, in

which we held that OEC 609 does not permit trial courts

to subject evidence admissible under its terms to OEC 403

balancing. 307 Or at 336-37. Then, turning to defendant’s

contention that OEC 403 balancing is nonetheless required

as a matter of due process, we conclude, after applying the

applicable United States Supreme Court framework, that

defendant’s contention is unfounded. Although we recognize

that the absence of balancing under either OEC 609 or OEC

403 means that some defendants who wish to testify in their

own trials must make a difficult choice—one that effectively

balances the benefits of testifying against the potential con-

sequences of having their testimony impeached by any qual-

ifying conviction history they have—we cannot conclude

that due process requires OEC 403 balancing before such

2

We do not understand the state to argue that, if in fact evidence admissible

under the terms of OEC 609 would violate defendant’s right to due process, the

trial court would nonetheless be required to admit that evidence due to the man-

datory language of OEC 609 (stating that evidence that meets requirements of

rule “shall be admitted”).

Cite as 372 Or 363 (2024) 367

evidence may be admitted. As a result, the Court of Appeals

erred in holding that OEC 403 balancing is a constitutional

requirement, and we, therefore, affirm the judgment of

conviction.

I. FACTS AND PROCEDURAL POSTURE

A. Facts and Trial Court Proceedings

In 2019, defendant was charged with first-degree

rape after the victim reported that he had forcibly subjected

her to sexual intercourse. The charged conduct took place

following a birthday party at which both defendant and the

victim had been guests. Although numerous other guests

from the party testified at trial about the victim and defen-

dant’s interactions, many of the guests had been drinking at

the party, and their testimony varied dramatically regard-

ing those interactions.

Defendant did not dispute that he had engaged

in sexual conduct with the victim; the issue at trial was

whether that conduct had been consensual, and defen-

dant intended to take the stand to testify that it had been.

Defendant anticipated, however, that, when he took the

stand, the state would seek to impeach his credibility by

introducing evidence under OEC 609 that, in 2008, he had

been convicted of multiple felonies in two separate cases. In

one case, defendant had pleaded no contest to two counts

of first-degree sexual abuse for events that had occurred

in 2002, when he was 15. In a second case, defendant had

pleaded no contest to second-degree assault for events aris-

ing out of an alcohol-related car accident.

As discussed in greater detail later in this opinion,

OEC 609(1) permits any witness to be impeached with evi-

dence that the witness has previously been convicted of a

felony3 or a crime involving a false statement or dishonesty:

“(1) For the purpose of attacking the credibility of a

witness, evidence that the witness has been convicted of

3

As in prior decisions, we use the term “felony” as shorthand for convic-

tions rendered admissible by OEC 609(1)(a) (applying to convictions for crimes

“punishable by death or imprisonment in excess of one year under the law under

which the witness was convicted”). See, e.g., State v. Phillips, 367 Or 594, 599 n 4,

482 P3d 52 (2021) (so explaining).

368 State v. Aranda

a crime shall be admitted if elicited from the witness or

established by public record, but only if the crime:

“(a) Was punishable by death or imprisonment in

excess of one year under the law under which the witness

was convicted; or

“(b) Involved false statement or dishonesty.”

Before trial, defendant filed a motion in limine,

seeking to limit the state’s introduction of OEC 609 evi-

dence to impeach his testimony. Relying on the Due Process

Clause of the Fourteenth Amendment to the United States

Constitution, defendant contended that, unless the trial

court first engaged in OEC 403 balancing regarding his con-

victions for first-degree sexual assault and second-degree

assault, admitting that evidence as impeachment under

OEC 609 would violate his right to due process. When appli-

cable, OEC 403 grants trial courts the discretion to exclude

otherwise relevant evidence as follows:

“Although relevant, evidence may be excluded if its pro-

bative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay or needless pre-

sentation of cumulative evidence.”

At the motion hearing, defendant acknowledged

that this court had previously held as a matter of statutory

interpretation that evidence admissible under OEC 609(1) is

not subject to OEC 403 balancing. See King, 307 Or at 336-37

(so holding). Defendant contended, however, that OEC 403

balancing was required as a matter of due process. He relied

on this court’s decision in Williams, 357 Or 1, contending

that we held in that case that due process requires courts

to conduct OEC 403 balancing before admitting “other acts”

evidence under OEC 404(4). See OEC 404(4) (providing in

part that, “[i]n criminal actions, evidence of other crimes,

wrongs, or acts by the defendant is admissible if relevant

except as otherwise provided by” various other rules of law,

including, “to the extent required by the United States

Constitution[,]” OEC 403). Defendant argued that, to pre-

vent undue prejudice, even if the trial court did not wholly

exclude his conviction history, it should at least limit the

impeachment evidence to the fact of the felony convictions

Cite as 372 Or 363 (2024) 369

and prohibit any naming of the specific crimes for which he

had been convicted.

In response, the state indicated that it did not

intend to offer defendant’s prior convictions for any purpose

other than impeachment. The state also explained that it

would be asking defendant only whether he had been con-

victed of one count of second-degree assault and two counts

of first-degree sexual abuse; it did not intend to otherwise

mention the specific convictions by name.

The trial court denied defendant’s motion to limit

the state’s introduction of OEC 609 evidence to impeach

his testimony. The court explained its understanding that,

if defendant took the stand, OEC 609(1)(a) would allow the

state to impeach him with his prior convictions, which would

be admissible solely for purposes of attacking his credibility.

The court further explained that no other rule of evidence or

provision of the Oregon Constitution required it to balance

the potentially prejudicial effect of that evidence against its

probative value. Moreover, the trial court stated, it was set-

tled law in Oregon that the state could identify defendant’s

convictions by name; it would not be limited to letting the

jury know that defendant had been convicted.

In rejecting defendant’s argument that OEC 403

balancing was required under the federal constitution as a

matter of due process, the trial court explained that, in its

view, there were three reasons not to extend the reasoning of

Williams, 357 Or at 4, to defendant’s case. First, in Williams,

the state had sought to use “other acts” evidence in its case-

in-chief. Here, in contrast, the state would not be permitted

to introduce defendant’s conviction history unless he chose

to take the stand; defendant, therefore, controlled whether

the jury heard that evidence. Second, the court explained,

it would be instructing the jurors that they could consider

defendant’s conviction history for only its bearing, if any, on

his credibility. The court added that jurors were presumed

to know their obligations and to follow instructions, and so

could be expected to follow them here. And third, the court

noted, defendant had been unable to identify any other juris-

diction that had held that due process required balancing in

the impeachment context.

370 State v. Aranda

Before any evidence of defendant’s conviction his-

tory was introduced at trial, the court gave a precaution-

ary instruction telling the jury that it was not to consider

that evidence except for purposes of assessing defendant’s

credibility:

“If you find the defendant has previously been convicted of

a crime, you may consider this conviction only for its bear-

ing, if any, on the credibility of the defendant. Specifically,

you may not use this evidence for the purpose of drawing

the inference that[,] because the defendant was convicted of

a previous crime, the defendant may be guilty of the crime

charged in this case.”

Defense counsel entered a continuing objection to

any identification by name of the felonies for which defen-

dant had been convicted. When defendant took the stand for

direct examination, he acknowledged that he had previously

been convicted of three felonies, but he did not identify any

conviction by name.4 The state, in turn, asked defendant the

following questions on cross-examination:

“Q These * * * prior convictions that you have back in

2008, isn’t it correct that one of them is for Assault in the

Second Degree, a felony?

“A Yes, sir.

“Q And the other two are for Sexual Abuse in the First

Degree, both felonies?

“A Yes, sir.”

In its closing instructions to the jury, the trial court

again stated that prior convictions were to be used for only

purposes of assessing credibility: “If you find that a witness

has been convicted of a crime, you may consider this con-

viction only for its bearing, if any, on the credibility of the

witness.”

4

The exchange between defense counsel and defendant was as follows:

“Q Okay. And—* * * well, sir, have you ever been convicted of any felony

offenses in Linn County Circuit Court, say, I think in * * * 2008, like August

of 2008?

“A Yes.

“Q And there were three * * * felony offenses?

“A Yes.”

Cite as 372 Or 363 (2024) 371

The state itself made that point in its closing

argument:

“In your final instructions there—I think it made it

into the preliminary, too—but in your final instructions

there you see this other one about the defendant’s prior

felony convictions. These can only be used by you to deter-

mine whether the defendant is a credible witness; that is,

whether you believe him or not, okay?”

Although the state had previously named defendant’s fel-

ony convictions, it did not remind the jury of the specific

crimes of conviction during closing argument. The state also

focused during closing on how the conviction history bore on

the issue of witness credibility, implicitly contrasting defen-

dant’s conviction history with that of the witnesses against

him, who had no conviction history:

“It’s just not like we have two people come and say this

and we walk out of here. But I just want you to say to your-

selves when you’re sitting there saying, ‘Do I believe [wit-

ness KZ]? Do I believe [witness JM]? Do I believe [witness

DP]? Do I believe [witness RC]? Do I believe [witness MA]?’

Ask yourselves whether they have any of those felony con-

victions when you’re making that determination.”

The jury ultimately convicted defendant of first-

degree rape.

B. Court of Appeals Decision

Defendant appealed his conviction and raised a

number of issues in the Court of Appeals. That court agreed

with defendant’s due process argument and, on that basis,

vacated his conviction and remanded for further proceed-

ings. The court expressly rejected defendant’s remaining

arguments without discussion. Aranda, 319 Or App at 179.

In considering whether the trial court had violated

defendant’s due process rights by admitting his conviction

history without first conducting OEC 403 balancing, the

Court of Appeals explained that resolving that question

required it to determine how the United States Supreme

Court would itself resolve the issue. Id. at 182. That, accord-

ing to the Court of Appeals, depended primarily on historical

372 State v. Aranda

practice. Id. (so stating); id. at 184 (relevant focus is national

practice).

In reviewing historical practice, the Court of

Appeals first observed that, at common law, any person

who had previously been convicted of an “infamous crime”

was wholly prohibited from testifying—as a result, histor-

ically there had been no practice regarding impeachment

by prior conviction. Id. at 184. Further developments in the

law abolished the rule that such persons were incompetent

to testify, but their conviction history became admissible as

impeachment evidence. Id. at 184-85. The Court of Appeals

observed that, although that development meant that testi-

fying defendants faced a substantial risk of prejudice when

such evidence was admitted, the historical record did “not

provide a definitive answer as to whether the Due Process

Clause requires a trial court” to balance prejudice against

probative value. Id. at 185-86. The court specifically noted

an absence of federal cases since the adoption of Federal

Rule of Evidence (FRE) 609, which specifically provides for

balancing, and it observed that Oregon “appears to be an

outlier” when compared to other states, most of which also

had adopted the federal approach. Id. at 187-88.

Because of its conclusion that history failed to pro-

vide a clear answer, the Court of Appeals turned to “ ‘the

principles that animate the Due Process Clause,’ ” id. at 188

(quoting Williams, 357 Or at 18), including that due process

prohibits the “admission of evidence that is so extremely

unfair that it violates fundamental conceptions of justice,”

id. at 188-89 (internal quotation marks and citations omit-

ted). The court recognized the risk that a jury might misuse

a defendant’s prior conviction to find the defendant guilty

on the ground that the defendant has a propensity to com-

mit crimes, rendering the defendant’s trial fundamentally

unfair. Id. at 189. Allowing trial court discretion to exclude

unfairly prejudicial evidence would, in the Court of Appeals’

opinion, “ensure” that the jury did not misuse the evidence.

Id. at 190. It followed, in that court’s view, that due process

required balancing so as to protect against that possibility.

Id.

The state sought review, which we allowed.

Cite as 372 Or 363 (2024) 373

II. DISCUSSION

A. Defendant’s Challenge to State v. King

As a preliminary matter, we address defendant’s

argument that the Court of Appeals’ decision can be affirmed

as being “right for the wrong reason.” See Edmonds, 364

Or at 415 (explaining “the ‘right for the wrong reason’ doc-

trine”). On review, defendant argues for the first time that

this court’s decision in King, 307 Or 332, was incorrectly

decided and should therefore be overruled. He argues that

OEC 609, properly understood, remains subject to OEC 403

balancing. Therefore, in his view, there is no need for us to

reach the question whether OEC 403 balancing is constitu-

tionally required, as the Court of Appeals held.

The state disputes defendant’s argument on two

grounds. Procedurally, the state objects that such an issue

should not be raised for the first time in a sur-reply brief.

Substantively, the state maintains that King was correctly

decided.

We need not decide the procedural question, because

defendant has not established a basis to overrule King. We

have previously explained that “we begin with the assump-

tion that issues considered in our prior cases are correctly

decided, and the party seeking to change a precedent must

assume responsibility for affirmatively persuading us that

we should abandon that precedent.” Farmers Ins. Co. v.

Mowry, 350 Or 686, 698, 261 P3d 1 (2011) (internal quota-

tion marks and citation omitted). Here, defendant has not

meaningfully undertaken that task, much less established

that this court’s decision in King was wrongly decided.

The enactment history of the rules at issue here com-

pels that conclusion. The versions of OEC 609 and OEC 403

adopted in 1981, predating our 1989 decision in King, each con-

tained provisions for balancing an evidentiary item’s potential

for prejudice against its probative value, but the provisions

differed from each other. Compare OEC 403 (1982) (evidence

“may be excluded if its probative value is substantially out-

weighed by the danger of unfair prejudice”), with OEC 609(1)

(1982) (impeachment with prior criminal conviction permit-

ted “only if” “the court determines that the probative value

374 State v. Aranda

of admitting this evidence outweighs its prejudicial effect to

the defendant”). See Laird C. Kirkpatrick, Oregon Evidence,

Art VI, Rule 609, 251 (1st ed 1982) (“Rule 609 requires that

the probative value outweigh the prejudice before the prior

conviction may be admitted, whereas Rule 403 requires that

the probative value of evidence be substantially outweighed

by prejudice before it will be excluded.”); State v. Pratt, 316

Or 561, 572, 853 P2d 827 (1993) (“OEC 609 provided its own

test for balancing probative value against prejudicial effect,”

separate from that found in OEC 403). By adopting different

balancing tests for prejudice under the two rules, the legis-

lature signaled that it did not intend for the more generally

applicable test under OEC 403 to apply to cases subject to the

specific balancing test contained in OEC 609(1).

In 1986, the voters passed an initiative that

amended OEC 609 to remove that rule’s balancing test. Or

Laws 1987, ch 2, § 9. That amendment thus removed the

only balancing test for prejudice that expressly applied to

evidence offered to impeach the testimony of criminal defen-

dants. Defendant does not contend that the 1986 amend-

ment affirmatively extended the OEC 403 balancing test for

prejudice to fill that gap.5 Nor does defendant explain why,

in his view, this court was mistaken to conclude in King that

the voters did not intend that the impeachment evidence

that they had just rendered admissible without balancing

under OEC 609 would now be subject to balancing under

OEC 403.

In the absence of a focused argument that our deci-

sion in King was the product of a flawed analysis or was

otherwise wrongly decided, we are not persuaded that we

should reconsider that decision. Accordingly, we proceed

with the understanding that evidence admissible under the

5

Defendant does contend that our later decision in Pratt, 316 Or 561, in which

we held that OEC 403 balancing is appropriate when evidence is challenged as

cumulative, is inconsistent with King. Defendant misreads Pratt, however. In

that opinion, this court held that the 1986 amendment to OEC 609 removed

balancing as to prejudice, but not balancing as to the needless presentation of

cumulative evidence. Id. at 573. OEC 403 had merely codified the common-law

discretion to exclude cumulative evidence. Id. The removal of OEC 609 balancing

for prejudice, we concluded, did not affect the court’s authority to balance cumu-

lative evidence under OEC 403. Id. In Pratt, the court acknowledged King, but it

expressly distinguished it on that ground. Id. at 572.

Cite as 372 Or 363 (2024) 375

terms of OEC 609(1)—as the impeachment evidence in this

case indisputably was—is not subject to balancing under

OEC 403 unless such balancing is constitutionally required,

the question to which we now turn.

B. Constitutional Question

As noted above, the trial court held that no provi-

sion of the Oregon Evidence Code or the Oregon Constitution

required it to conduct balancing before admitting evidence

of defendant’s conviction history. In adhering to this court’s

decision in King, we have now rejected defendant’s challenge

to that ruling under the evidence code, and defendant has

not advanced an argument under the Oregon Constitution

on appeal. Thus, the remaining issue before us is purely

one of federal constitutional law—specifically, the question

whether due process requires OEC 403 balancing in cases

such as this.

“[W]hen interpreting the federal constitution or

applying [United States] Supreme Court rulings that are

based on its interpretation of the federal constitution, we

must comply with what the Supreme Court has stated.”

Page v. Palmateer, 336 Or 379, 386, 84 P3d 133, cert den, 543

US 866 (2004) (citing cases). We cannot interpret the United

States Constitution so as to extend its guarantees beyond

any limits recognized by the Supreme Court. See Arkansas

v. Sullivan, 532 US 769, 772, 121 S Ct 1876, 149 L Ed 2d 994

(2001) (rejecting Arkansas Supreme Court’s holding “that

it may interpret the United States Constitution to provide

greater protection than this Court’s own federal constitu-

tional precedents provide”); Oregon v. Hass, 420 US 714,

719, 95 S Ct 1215, 43 L Ed 2d 570 (1975) (“[A] State may

not impose such greater restrictions [on police] as a mat-

ter of federal constitutional law when this Court specifically

refrains from imposing them.”) (Emphasis in original).

Thus, as an initial matter, we must consider

whether the United States Supreme Court has previously

addressed the issue at hand and, if so, whether defendant’s

argument would extend the protections of the Due Process

Clause beyond any limitation recognized by the Court. We

turn to those questions.

376 State v. Aranda

1. Spencer v. Texas

In its briefing, the state relies on Spencer v. Texas,

385 US 554, 87 S Ct 648, 17 L Ed 2d 606 (1967), suggest-

ing that the Supreme Court’s decision in that case controls

the outcome here. We recognize that Spencer can plausibly

be read as deciding the issue raised in this case and doing

so in a manner that would require us to reject defendant’s

position. As we will explain, however, we ultimately con-

clude that, although instructive, the holding of Spencer is

not dispositive.

In Spencer, the Supreme Court addressed the con-

stitutionality of a Texas law that required the same jury to

decide both whether a defendant was guilty of the charged

offense and, if so, whether to impose a recidivist sentence

upon the defendant. Procedurally, a jury would be “fully

inform[ed]” of a defendant’s prior convictions during the

guilt phase of the trial, but the jurors were instructed not to

consider those convictions until after the jury had reached

a decision as to guilt. 385 US at 556-59. The defendants in

Spencer had argued, in essence, that permitting the jury to

hear such evidence—which necessarily included evidence of

convictions for conduct similar to the charged offense—vio-

lated the Due Process Clause because of the risk that jurors

would vote to convict based upon a defendant’s perceived

propensity to commit similar crimes, rather than based

upon the prosecution’s evidence of the charged offense. Id. at

559.

The Supreme Court rejected that argument. The

Due Process Clause, the Court explained, guarantees crimi-

nal defendants a fundamentally fair trial. Id. at 563-64. The

procedure prescribed by Texas law did not fall short of that

guarantee, and therefore the Supreme Court was unwilling

to impose further procedural requirements as a matter of

due process:

“Cases in this Court have long proceeded on the premise

that the Due Process Clause guarantees the fundamental

elements of fairness in a criminal trial. * * * But it has never

been thought that such cases establish this Court as a rule-

making organ for the promulgation of state rules of crim-

inal procedure. And none of the specific provisions of the

Cite as 372 Or 363 (2024) 377

Constitution ordains this Court with such authority. In the

face of the legitimate state purpose and the long-standing

and widespread use that attend the procedure under attack

here, we find it impossible to say that because of the pos-

sibility of some collateral prejudice the Texas procedure is

rendered unconstitutional under the Due Process Clause

as it has been interpreted and applied in our past cases. As

Mr. Justice Cardozo had occasion to remark, a state rule

of law ‘does not run afoul of the Fourteenth Amendment

because another method may seem to our thinking to be

fairer or wiser or to give a surer promise of protection to

the prisoner at bar.’ ”

Id. at 563-64 (quoting Snyder v. Commonwealth of

Massachusetts, 291 US 97, 105, 54 S Ct 330, 78 L Ed 674

(1934)).

Without more, Spencer might be viewed as con-

trolling here. That is, if due process permits a prosecutor

to place a defendant’s prior convictions before the jury any

time that there is a “legitimate state purpose” and a “long-

standing and widespread use” of evidence in that man-

ner, then it might well follow that allowing prosecutors to

freely rely on those convictions for the familiar purpose of

impeaching testifying defendants would raise no due pro-

cess concerns. See Spencer, 385 US at 560-61 (noting case

law permitting testifying defendants to be impeached by

prior convictions); see also id. at 577 (Warren, C.J., concur-

ring in part, dissenting in part) (distinguishing case at bar

from cases in which testifying defendants are impeached

with prior convictions).

On closer examination, however, Spencer discloses

an ambiguity that might have some bearing here. In refus-

ing to strike down the evidentiary rule at issue in that

case, the Spencer majority expressly noted that Texas law

permitted trial courts to exclude “particularly” prejudicial

evidence:

“The defendants’ [due process] interests are protected by

limiting instructions, * * * and by the discretion residing

with the trial judge to limit or forbid the admission of

particularly prejudicial evidence even though admissible

under an accepted rule of evidence.”

378 State v. Aranda

385 US at 561-62 (citing Texas opinion and secondary

sources).

Some courts have concluded that that statement in

Spencer was not important to the holding of that case; those

courts have therefore upheld statutes that gave trial courts

no discretion to exclude evidence of prior convictions offered

for purposes of impeachment. See, e.g., Commonwealth v.

Diaz, 383 Mass 73, 78, 417 NE2d 950, 953-54 (1981) (“the

language of Spencer about discretion to exclude has been

taken as merely ‘descriptive’ of the practice in many States,

and not as suggesting any due process infirmity when the

statute or rule allowing impeachment (and the practice

thereunder) gives the trial judge no discretion to exclude

the convictions when offered”); United States v. Belt, 514 F2d

837, 847-50 (DC Cir 1975) (en banc) (stating view that the

majority opinion in Spencer reasoned from analogy regard-

ing the admission of prior-crimes evidence and emphasized

the Court’s obligation to avoid inflexibility in constitutional

interpretation “where local evidentiary rules are involved”;

observing that, in context, it is “unlikely that Justice Harlan

intended, by his generalized reference to judicial discretion,

to declare the invalidity of a statute of the kind now before

us”); Dixon v. United States, 287 A2d 89, 94-95 (DC 1972)

(upholding constitutionality of statute that made the admis-

sion of prior criminal convictions against testifying crimi-

nal defendants mandatory, stating that Spencer’s statement

“does not amount to a declaration that judicial discretion

to exclude prejudicial prior convictions is constitutionally

required” (emphasis in original)).

Two more recent decisions by the Supreme Court

itself, however, suggest that the trial court’s discretion to

exclude unduly prejudicial evidence may have played at least

some role in Spencer’s conclusion that the Texas evidentiary

law at issue there did not violate due process. This court iden-

tified one of those cases in Williams, 357 Or at 12: Dowling

v. United States, 493 US 342, 110 S Ct 668, 107 L Ed 2d 708

(1990). In Dowling, the defendant was prosecuted for bank

robbery, and the trial court admitted testimony regarding

a prior offense that the defendant had allegedly committed,

but for which he had been acquitted before his robbery trial

Cite as 372 Or 363 (2024) 379

began. Id. at 343-46. The Supreme Court held that that tes-

timony did not violate the Due Process Clause. Id. at 352-

54. In so holding, however, the Court expressly noted that a

balancing test would protect a defendant against prejudice:

“Dowling contends that the use of this type of evidence

creates a constitutionally unacceptable risk that the jury

will convict the defendant on the basis of inferences drawn

from the acquitted conduct; we believe that the trial court’s

authority to exclude potentially prejudicial evidence ade-

quately addresses this possibility.”

Id. at 353.

A second case recognizing the potential value of

balancing is Perry v. New Hampshire, 565 US 228, 132 S Ct

716, 181 L Ed 2d 694 (2012), in which the Supreme Court

considered the due process implications of eyewitness testi-

mony where an eyewitness’s out-of-court identification of a

defendant had been made under suggestive circumstances.

See id. at 234-35 (witness had observed defendant in police

custody through kitchen window). The defendant in Perry

argued that the Due Process Clause required the trial court

to make a preliminary inquiry into the reliability of the

identification before allowing the jury to hear the evidence.

Id. at 236 (summarizing issue). The Court held that due pro-

cess did not require such a preliminary inquiry because the

police had not been responsible for the circumstances being

suggestive. Id. at 248. In so holding, however, the Court

“t[ook] account of other safeguards built into our adversary

system that caution juries against placing undue weight on

eyewitness testimony of questionable reliability.” Id. at 245.

One such safeguard specifically identified by the Court was

the authority to exclude unduly prejudicial evidence:

“State and Federal Rules of Evidence, moreover, permit

trial judges to exclude relevant evidence if its probative

value is substantially outweighed by its prejudicial impact

or potential for misleading the jury.”

Id. at 247.

The Supreme Court’s repeated reliance on that

rationale—that a trial court’s discretion to exclude preju-

dicial evidence is sufficiently protective of a defendant’s

380 State v. Aranda

due process rights—suggests to us that it remains an open

question for the Court whether such discretion is necessar-

ily required to afford due process. See also Williams, 357

Or at 17 (“[J]ust because due process is served by a partic-

ular evidentiary rule does not mean, at least necessarily,

that due process is violated if that rule is not applicable.”).

Accordingly, we conclude that Spencer is not dispositive

here. We therefore turn to the more general consideration of

what due process requires.

2. The requirements of due process

In determining whether “state procedural rules”

that “are part of the criminal process”—such as OEC

609(1)—meet the requirements of due process, the “appro-

priate [analytical] framework” is set out in Medina v.

California, 505 US 437, 443, 112 S Ct 2572, 120 L Ed 2d 353

(1992). See Nelson v. Colorado, 581 US 128, 134-35, 137 S Ct

1249, 197 L Ed 2d 611 (2017) (so explaining).

In that respect, we first note that defendant does

not contend that his impeachment with prior convictions

violated any specific guarantee of the Bill of Rights. And, as

the Supreme Court has emphasized, when applied outside

those specific guarantees, “due process” has a narrow scope:

“ ‘[B]eyond the specific guarantees enumerated in the Bill

of Rights, the Due Process Clause has limited operation.’

Dowling v. United States, 493 US [at] 352 * * *; accord, United

States v. Lovasco, 431 US 783, 790, 97 S Ct 2044, 52 L Ed

2d 752 (1977). The Bill of Rights speaks in explicit terms

to many aspects of criminal procedure, and the expansion

of those constitutional guarantees under the open-ended

rubric of the Due Process Clause invites undue interference

with both considered legislative judgments and the careful

balance that the Constitution strikes between liberty and

order. As we said in Spencer * * *, [385 US at 564], ‘it has

never been thought that [decisions under the Due Process

Clause] establish this Court as a rule-making organ for the

promulgation of state rules of criminal procedure.’ ”

Medina, 505 US at 443-44 (alterations other than first in

original); see Clark v. Arizona, 548 US 735, 748-49, 126 S Ct

2709, 165 L Ed 2d 842 (2006) (to same effect as Medina);

Cite as 372 Or 363 (2024) 381

Patterson v. New York, 432 US 197, 201-02, 97 S Ct 2319, 53

L Ed 2d 281 (1977) (to same effect).

To determine whether a state rule of criminal pro-

cedure violates the Due Process Clause, Medina explains,

the relevant inquiry is whether it “ ‘offends some principle of

justice so rooted in the traditions and conscience of our peo-

ple as to be ranked as fundamental.’ ” 505 US at 446 (quot-

ing Patterson, 432 US at 202). In answering that question,

“[h]istorical practice is probative of whether a procedural

rule can be characterized as fundamental.” Id.; see Montana

v. Egelhoff, 518 US 37, 43-44, 116 S Ct 2013, 135 L Ed 2d

361 (1996) (plurality opinion) (describing historical practice

as the “primary guide”). Stated in terms of the parties’ dis-

pute in this case, the question is whether OEC 609 in its

current form denies defendants a procedural right so estab-

lished through historical practice that it has become “fun-

damental.” Thus, we must determine whether the OEC 403

balancing of impeachment evidence before its admission,

which OEC 609 no longer allows, is so reflected in historical

practice as to be fundamental in that regard. Accordingly,

we next turn to what historical practice shows.

a. Historical practice

The Supreme Court has articulated a rather demand-

ing test for one seeking to establish that a given practice is

“historical”:

“[I]n assessing that [historical] practice, we look primar-

ily to eminent common-law authorities (Blackstone, Coke,

Hale, and the like), as well as to early English and American

judicial decisions. The question is whether a rule of crim-

inal responsibility is so old and venerable—so entrenched

in the central values of our legal system—as to prevent a

State from ever choosing another. An affirmative answer,

though not unheard of, is rare.”

Kahler v. Kansas, 589 US 271, 279, 140 S Ct 1021, 206 L Ed

2d 312 (2020) (rejecting contention that Due Process Clause

required a state to provide insanity defense (citations omit-

ted)). “Contemporary practice” may also be considered, but it

is “of limited relevance to the due process inquiry.” Medina,

505 US at 447.

382 State v. Aranda

It is defendant’s burden to affirmatively show that

the principle that he seeks to apply is “entrenched in the

central values of our legal system.” That is, it is not suffi-

cient that defendant may be able to show that the state’s

rule is not deeply rooted; he must demonstrate the funda-

mental nature of the rule that he contends is essential to

due process. As the Supreme Court explained in Egelhoff,

“[i]t is not the State which bears the burden of demonstrat-

ing that its rule is ‘deeply rooted,’ but rather respondent

who must show that the principle of procedure violated by

the rule (and allegedly required by due process) is ‘so rooted

in the traditions and conscience of our people as to be

ranked as fundamental.’ Thus, even assuming that when

the Fourteenth Amendment was adopted the rule Montana

now defends was no longer generally applied, this only cuts

off what might be called an a fortiori argument in favor of

the State. The burden remains upon respondent to show

that the ‘new common-law’ rule * * * was so deeply rooted

at the time of the Fourteenth Amendment (or perhaps has

become so deeply rooted since) as to be a fundamental prin-

ciple which that Amendment enshrined.”

518 US at 47-48 (first alteration in original; citations omit-

ted); see Kahler, 589 US at 279 (following Egelhoff). As applied

to this case, then, defendant must show a “deeply rooted”

practice of requiring courts to balance prejudice against

probative value before allowing the state to impeach testify-

ing criminal defendants with their prior felony convictions,

because that, in essence, is the “principle of procedure” that

OEC 609 purportedly violates and that is “allegedly required

by due process.” See Egelhoff, 518 US at 47-48.

In turning to whether history discloses such a prac-

tice, we first observe, as the Court of Appeals noted, that at

common law any person with a felony conviction was deemed

incompetent to testify as a witness. See, e.g., Green v. Bock

Laundry Mach. Co., 490 US 504, 511, 109 S Ct 1981, 104 L Ed

2d 557 (1989) (so explaining); Mason Ladd, Credibility Tests—

Current Trends, 89 U Pa L Rev 166, 174 (1940) (same). Thus,

as to such individuals, impeachment was historically not an

issue.

That does not mean, however, that there is no

decisional law from that era relevant to our assessment of

Cite as 372 Or 363 (2024) 383

historical practices. To the contrary—there is a long line

of common-law cases addressing the effect of a pardon on

an individual’s competency to testify. Under those circum-

stances, the pardon restored the witness’s capacity to tes-

tify, but the conviction was admitted for the jury’s consid-

eration in evaluating that person’s credibility. The case of

Rookwood’s Trial, Holt 683, 685, 90 Eng Rep 1277, 1278 (KB

1696), which involved a witness who had been pardoned by

the king, stated the rule as follows: “[T]he conviction indeed

might be objected to his credit, but could not be urged

against his being a witness.”6

Lord Hale expressed the rule similarly:

“[I]f the king pardon * * * offenders, they are thereby ren-

dered competent witnesses, tho their credit is to be still

left to the jury, for the king’s pardon takes away poenam &

culpam in foro humano,[7] * * * but yet it makes not the man

always an honest man[.]”

Sir Matthew Hale, 2 The History of the Pleas of the Crown

278 (1736) (citations omitted).

That rule was transplanted to the United States

and widely followed until at least the middle of the twenti-

eth century:

“The current of American decision, following the British

cases, is unbroken: an offender, if pardoned, must still face

the fact that his conviction is admissible in evidence as

bearing on his credibility.”

Richards v. United States, 192 F2d 602, 606 (DC Cir 1951),

cert den, 342 US 946, reh’g den, 343 US 921 (1952) (footnotes

omitted); see also Vedin v. McConnell, 22 F2d 753, 754 (9th Cir

1927) (“The pardon in no wise negatived the implications of

the conviction in respect of plaintiff’s character, and the jury

was entitled to knowledge of it as bearing on his credibility

6

See also the more detailed report of the case in Trial of Ambrose Rookwood,

13 Howell’s State Trials 139, 185 (KB 1696), available at https://books.google.

co.uk/books?id=SwQKAAAAIAAJ&pg=PA185#v=onepage&q=pardon&f=false

(reporting Lord Chief Justice’s statement as “the credit of such a [pardoned] wit-

ness is left to the jury, but it is no objection to his being a legal witness”) (accessed

May 29, 2024).

7

The no-longer used Latin phrase can be understood to mean, essentially,

penalty and fault as matters of earthly, as opposed to spiritual, affairs.

384 State v. Aranda

as a witness.”); State v. Grant, 33 Del 195, 198, 133 A 790

(Del Ct Gen Sess 1926) (“[F]or the purpose of affecting the

credit of the defendant, the fact of the conviction may, there-

fore, be brought out either on cross-examination or in rebut-

tal.”); Curtis v. Cochran, 50 NH 242, 244-45 (1870) (“The con-

viction is an impeachment and condemnation of his general

character for truth. * * * [A pardon] removes the disability

[to testify], but does not change the common-law principle

that the conviction of an infamous offence is evidence of bad

character for truth.” (Citations omitted.)); Baum v. Clause, 5

Hill 196, 196-97, 1843 N.Y. LEXIS 85, at *1-3 (NY Sup Ct

1843) (although “competency is restored by the pardon, the

crime still goes to the credit of the witness”); United States

v. Jones, 26 F Cas 644, 647-48, 1824 US App LEXIS 265, at

*2-3 (CC D NY 1824) (No. 15,493) (Circuit Justice Thompson)

(charging the jury: “His honor observed, he had no doubt of

the efficacy of the pardon, and that [the state’s witness] was

now a competent witness; his credibility, however, was still

a subject for the consideration of the jury.”). Our review of

the foregoing case law has given us no indication that the

trial courts of the time were required (or even permitted) to

balance the probative value of a witness’s conviction history

against its potential to cause prejudice before admitting that

evidence for impeachment purposes, nor that trial courts

were in fact exercising discretion in that regard.

Meanwhile, over the course of the nineteenth cen-

tury, the general rule of incompetency for persons who had

not been pardoned for their crimes began to change, as

states enacted statutes restoring the competency of previ-

ously convicted persons. See Stuart P. Green, Deceit and the

Classification of Crimes: Federal Rule of Evidence 609 (A)(2)

and the Origins of Crimen Falsi, 90 J Crim L & Criminology

1087, 1110 (2000); Ladd, 89 U Pa L Rev at 174-75. The same

statutes, however, typically allowed the use of a witness’s

conviction history to impeach the witness’s credibility. See

Green, 90 J Crim L & Criminology at 1110; Ladd, 89 U Pa

L Rev at 174-75.8 Functionally, then, the states took the

8

Oregon was one of the states that removed incompetency but permitted

the use of prior convictions to attack credibility. As early as 1862, the Oregon

Legislative Assembly began permitting persons previously convicted of crimes to

testify as witnesses, but it also expressly permitted a witness’s credibility to be

questioned “in every case”:

Cite as 372 Or 363 (2024) 385

common-law rule applicable to the impeachment of witnesses

who had been pardoned and applied it more generally to all

persons with prior convictions, without regard to whether a

witness had been pardoned for any earlier offenses.

As the Supreme Court itself has noted, the consen-

sus rule during that period—that is, before the adoption of

the Federal Rules of Evidence in 1975—was that trial courts

lacked discretion to bar impeachment by prior conviction:

“The weight of authority before [Federal Rule of Evidence]

609’s adoption * * * admitt[ed] all felonies without exer-

cise of judicial discretion in either civil or criminal cases.

Departures from this general rule had occurred overtly by

judicial interpretation, as in Luck v. United States, * * * 348

F2d 763 ([DC Cir] 1965), or in evidence codes, such as the

Model Code [of Evidence, 1942] and the Uniform Rules [of

Evidence, 1953].”

Green, 490 US at 521-22.

Moreover, courts of that era specifically authorized

the use of prior convictions to impeach criminal defendants

who chose to testify in their own behalf. See Right to cross-

examine accused as to previous prosecution for, or conviction

of, crime, for purpose of affecting his credibility, 161 ALR 233

(1946) (“Even in the absence of a statute to that effect, it has

generally been held proper to cross-examine the accused as

to his previous conviction for the purpose of affecting his

credibility[.]”); see also Goode v. United States, 149 F2d 377,

378 (DC Cir 1945) (no error to “allow[ ] the District Attorney

to draw from [the defendant] on cross-examination admis-

sions of his prior convictions on two occasions of grand

larceny”); State v. Ede, 167 Or 640, 644, 117 P2d 235 (1941)

(“[T]he state had a right to show either on the examination

“All persons without exception, except as otherwise provided in this title,

* * * may be witnesses. Therefore neither parties, nor other persons who have

an interest in the event of an action, suit or proceeding, are excluded; nor

those who have been convicted of crime; * * * although in every case, * * * the

credibility of the witness may be drawn in question[.]”

The Code of Civil Procedure and Other General Statutes of Oregon § 700, 174-75

(1863) (emphases added). Furthermore, although witnesses generally could not

be impeached with prior wrongful acts, a witness could be impeached with evi-

dence disclosed “by the examination of the witness, or the record of the judgment,

that he has been convicted of a crime.” Id. at § 830, 203; see also id. at § 837, 205

(“a witness must answer as to the fact of his previous conviction for felony”).

386 State v. Aranda

of the defendant or by the record of a judgment that he had

been convicted of a crime.”); People v. Braun, 14 Cal 2d 1, 6,

92 P2d 402 (1939) (no error for prosecution to ask defen-

dant on cross-examination whether he had previously been

convicted of murder, even though murder conviction was

on appeal at time of trial and subsequently was reversed);

People v. David, 12 Cal 2d 639, 646, 86 P2d 811 0(1939) (rule

permitting witness to “be impeached by proof that he has

suffered the prior conviction of a felony” “applies to a defen-

dant who testifies in his own behalf in a criminal trial not-

withstanding the fact the such evidence tends to prejudice

him in the eyes of the jury”); State v. Morgan, 192 Wash 425,

431, 73 P2d 745 (1937) (“clearly proper” for prosecution to ask

defendant on cross-examination whether he had previously

been convicted of crime); Mansbach v. United States, 11 F2d

221, 224 (3d Cir 1926) (stating, under New Jersey law, that

“if the defendant offer[s] himself as a witness, his conviction

of another crime may, on cross-examination, be shown for

the purpose of affecting his credibility as a witness”).

Some of our own decisions from the period predat-

ing the adoption of the Oregon Evidence Code had rejected

balancing more generally, reasoning that the discretionary

aspect of balancing would mean that the same evidence

could be treated differently by different judges. See State v.

Manrique, 271 Or 201, 210-11, 531 P2d 239 (1975) (rejecting

balancing for prior-crime evidence); see also Smith v. Durant,

271 Or 643, 658-60, 534 P2d 955 (1975) (rejecting balanc-

ing as to impeachment of a nondefendant witness with

prior convictions, noting that “the same evidence admitted

in one court might well be excluded by another,” such that

“the result in a case might well depend upon what court or

judge it is tried before”). Thus, insofar as defendant seeks

to establish a historical practice of mandatory judicial bal-

ancing before a criminal defendant’s conviction history may

be admitted as impeachment, neither this court’s case law,

nor that of the other jurisdictions discussed above, readily

provides support for defendant’s position.

That is not to say that defendant’s concerns are

his concerns alone. Despite—or perhaps due to—the wide-

spread acceptance of impeachment by prior conviction, the

Cite as 372 Or 363 (2024) 387

practice became subject to growing academic criticism in

the last century. See Ladd, 89 U Pa L Rev at 184-91 (1940

law review article discussing chilling effect on a defendant’s

right to testify and potential for prejudice when jurors hear

about prior convictions). Notably, however, even those crit-

ical of admitting conviction history for impeachment pur-

poses acknowledged that almost every state allowed the

practice. See id. at 187 (when a defendant testifies, “the right

of the state to prove convictions of a crime is almost uni-

versally admitted as a test of veracity”). And, although the

1942 Model Code of Evidence and the 1953 Uniform Rules

of Evidence both would have given trial courts discretion to

exclude impeachment evidence deemed unduly prejudicial,

see Green, 490 US at 513 (discussing both), those specific

provisions were not widely adopted.

Moreover, the concerns expressed in academic cir-

cles initially gained little traction in the courts. However, in

1965, the United States Court of Appeals for the District of

Columbia Circuit held that judicial balancing for prejudice

was required before criminal defendants could be impeached

with their conviction histories. Luck, 348 F2d at 769-70;

see Committee on Rules of Practice and Procedure of the

Judicial Conference of the United States, Revised Draft of

Proposed Rules of Evidence for the United States Courts and

Magistrates, 51 FRD 315, 393 (1971) (advisory committee’s

note) (discretionary balancing regarding impeachment by

prior convictions “finds its genesis in Luck”; “[p]rior to that

decision, slight latitude was recognized for balancing proba-

tive value against prejudice, though some authority allowed

or required the trial judge to exclude convictions remote in

point of time”); Roger C. Park, Impeachment with Evidence

of Prior Convictions, 36 Sw U L Rev 793, 796 (2008) (identi-

fying Luck as the probable first decision). Significantly, the

Luck opinion was a statutory ruling, based on the text of

a District of Columbia (D.C.) Code provision. As the circuit

court explained, that provision:

“says, in effect, that the conviction ‘may,’ as opposed to

‘shall,’ be admitted; and we think the choice of words in this

instance is significant. The trial court is not required to

allow impeachment by prior conviction every time a defen-

dant takes the stand in his own defense. The statute, in

388 State v. Aranda

our view, leaves room for the operation of a sound judicial

discretion to play upon the circumstances as they unfold in

a particular case. * * * There may well be other cases where

the trial judge believes the prejudicial effect of impeachment

far outweighs the probative relevance of the prior conviction

to the issue of credibility. This last is, of course, a standard

which trial judges apply every day in other contexts; and we

think it has both utility and applicability in this field.”

348 F2d at 768 (footnotes omitted).

The authoring judge in Luck would later express in

a law review article his view that the Luck decision repre-

sented a dramatic change in existing law:

“In the District of Columbia, it was common practice for

the prosecution in a criminal case automatically to enter

in evidence any and all prior convictions, except certain

minor misdemeanors, whenever the defendant elected to

appear on the witness stand in his own defense. This proce-

dure appeared to be the established and accepted mode of

proceeding, not only in the District of Columbia but almost

everywhere in the United States.”

Carl McGowan, Impeachment of Criminal Defendants by

Prior Convictions, 1970 L & Soc Order 1, 1 (1970) (footnote

omitted).

The Luck holding itself did not endure, because

in 1970 Congress amended the D.C. Code to overrule that

decision’s holding. See Green, 490 US at 514 (citing District

of Columbia Court Reform and Criminal Procedure Act

of 1970, Pub L 91-358, § 133(b), 84 Stat 551); Victor Gold,

Impeachment by Conviction Evidence: Judicial Discretion

and the Politics of Rule 609, 15 Cardozo L Rev 2295, 2300

(1993) (same). However, the ensuing adoption of the Federal

Rules of Evidence in 1975 continued the controversy over

balancing and the Luck decision.

The advisory committee’s9 first proposed Federal

Rules of Evidence expressly rejected the Luck doctrine and

made no provision for discretion or balancing. See Green, 490

9

The advisory committee had been appointed by the Chief Justice of the

United States Supreme Court. The committee prepared several preliminary

drafts of the Federal Rules of Evidence before submitting the final version to the

Supreme Court. The Court, in turn, submitted the draft rules to Congress for

enactment. See Gold, 15 Cardozo L Rev at 2298 n 18 (summarizing process).

Cite as 372 Or 363 (2024) 389

US at 515; Gold, 15 Cardozo L Rev at 2298-99; Committee on

Rules of Practice and Procedure of the Judicial Conference

of the United States, Preliminary Draft of Proposed Rules

of Evidence for the United States District Courts and

Magistrates, 46 FRD 161, 295-99 (1969) (proposed Rule 6-09

and advisory committee’s note).

Due to criticism of the first proposal’s rejection of

Luck, the advisory committee reversed course and incor-

porated Luck’s holding in its revised proposal. See Green,

490 US at 515-16; Gold, 15 Cardozo L Rev at 2299-300;

Committee on Rules of Practice and Procedure of the

Judicial Conference of the United States, Revised Draft of

Proposed Rules of Evidence for the United States Courts and

Magistrates, 51 FRD 315, 391-93 (1971) (proposed Rule 6-09

and advisory committee’s note). In doing so, however, the

committee failed to note or acknowledge that Congress had

legislatively overruled Luck by amending the D.C. Code.

That perceived affront to the will of Congress led to a legis-

lative attempt to limit the rulemaking power of the Supreme

Court. Gold, 15 Cardozo L Rev at 2300-01. That attempt

ultimately failed. Nonetheless, the advisory committee pre-

pared a final draft of the Federal Rules of Evidence that

reverted to the original proposal and removed discretionary

balancing. See Green, 490 US at 516-17; Gold, 15 Cardozo L

Rev at 2301; Rules of Evidence for United States Courts and

Magistrates, 56 FRD 183, 269-72 (1972) (proposed Rule 6-09

and advisory committee’s note). That was the version sub-

mitted to Congress. Green, 490 US at 517.

FRE 609 was equally controversial in Congress.

Ultimately, the version of the Federal Rules of Evidence that

Congress adopted in 1975 included a version of FRE 609

that codified much of the balancing test of Luck. That out-

come was the compromise product of a hard-fought political

battle, and the result was quite controversial. See Gold, 15

Cardozo L Rev at 2301-08 (discussing history in detail); id.

at 2303 (“The extent of the floor debate in the House over

Rule 609(a) far exceeded that relating to any other provision

in all the proposed Federal Rules of Evidence.”); id. at 2307

(conference committee forced to reconcile essentially contra-

dictory drafts from House and Senate).

390 State v. Aranda

One aspect of that compromise was that it limited

what evidence would be subject to balancing when a defen-

dant took the stand as a witness. Felonies as a general mat-

ter would be subject to some form of balancing. FRE 609

(a)(1). But any prior conviction—whether or not a felony

conviction—would be automatically admissible, without

balancing, if the crime involved an act of dishonesty or a

false statement. FRE 609(a)(2) (“[F]or any crime regardless

of the punishment, the evidence must be admitted” if “the

elements of the crime required proving—or the witness’s

admitting—a dishonest act or false statement.”) (Emphasis

added).10

Thus, the federal rule—along with the many states

that follow that rule or something close to it—requires bal-

ancing as to at least some prior convictions: those for crimes

that did not involve false statements or acts of dishonesty.

See FRE 609. However, the federal rule and analogous state

rules allow a criminal defendant to be impeached by some

prior convictions without any balancing of probative value

against prejudice. And in the context of convictions for dis-

honesty, at least, we are unaware of any case holding that

the absence of balancing violates the federal Due Process

Clause.

With that background in mind, we return to the

question of what historical practice shows. Again, defen-

dant has the burden of showing that trial court balancing

10

FRE 609 currently provides, in part:

“(a) In General. The following rules apply to attacking a witness’s char-

acter for truthfulness by evidence of a criminal conviction:

“(1) for a crime that, in the convicting jurisdiction, was punishable by

death or by imprisonment for more than one year, the evidence:

“* * * * *

“(B) must be admitted in a criminal case in which the witness is a defen-

dant, if the probative value of the evidence outweighs its prejudicial effect to

that defendant; and

“(2) for any crime regardless of the punishment, the evidence must be

admitted if the court can readily determine that establishing the elements of

the crime required proving—or the witness’s admitting—a dishonest act or

false statement.”

Although FRE 609 has been amended in various ways since 1975, none of those

amendments affect our assessment of the rule’s enactment history or the degree,

if at all, to which that history reflects historical practices.

Cite as 372 Or 363 (2024) 391

of the probative value of impeachment evidence against its

potential for prejudice—at least with regard to conviction

history used to impeach criminal defendants—is a histori-

cal practice that is either “entrenched in the central values

of our legal system,” Kahler, 589 US at 279, or “so rooted in

the traditions and conscience of our people as to be ranked

as fundamental,” Egelhoff, 518 US at 43. Defendant has not

met that burden. To the contrary: The common-law cases

regarding witnesses who had been pardoned for their crimes,

as well as decisional law into the latter half of the twenti-

eth century, show an established practice of allowing wit-

nesses—including criminal defendants—to be impeached

with prior convictions without any balancing. The novelty

of the Luck decision and the battle over FRE 609 confirms

that, as late as the mid-1970s, discretionary balancing of the

sort that OEC 403 permits was far from established practice

with regard to impeachment evidence. And even today, the

federal rules do not permit balancing as to some types of

convictions, even when offered to impeach testifying defen-

dants. That history therefore does not show an “entrenched”

practice of requiring trial courts to balance the probative

value of impeachment evidence against its potential to prej-

udice criminal defendants who choose to testify.

Although that history weighs heavily against defen-

dant’s position, it does not end our analysis. In the absence

of a historical practice, Medina requires us to consider

“whether the [challenged] rule transgresses any recognized

principle of ‘fundamental fairness’ in operation.” 505 US at

448. (internal citation omitted). Cf. Williams, 357 Or at 18

(characterizing test as “the principles that animate the Due

Process Clause”). We turn to that question.

b. Fundamental fairness

As a freestanding consideration under the Due

Process Clause, an assessment of “fundamental fairness”—

at least with regard to the introduction of evidence—asks

“whether the introduction of th[e] type of evidence [at issue]

is so extremely unfair that its admission violates fundamen-

tal conceptions of justice,” Dowling, 493 US at 352, or, stated

another way, would “ ‘so infuse[ ] the trial with unfairness as

to deny due process of law,’ ” Estelle v. McGuire, 502 US 62,

392 State v. Aranda

75, 112 S Ct 475, 116 L Ed 2d 385 (1991) (quoting Lisenba

v. California, 314 US 219, 228, 62 S Ct 280, 86 L Ed 166

(1941)).

Before exploring that question with regard to the

use of impeachment evidence in this case, it bears empha-

sizing that defendant’s position is not that the admission of

felony convictions to impeach a criminal defendant’s cred-

ibility is itself fundamentally unfair.11 Rather, defendant

contends that due process requires the application of a par-

ticular procedural rule—specifically, OEC 403 balancing—

as a safeguard to ensure that evidence so extremely preju-

dicial as to violate due process will not be admitted. Thus,

this case differs from cases such as Williams, where the

court’s focus was on whether the use of other-acts evidence

to prove the defendant’s propensity to commit child sexual

abuse was so “extremely unfair” as to violate “fundamen-

tal conceptions of justice,” 357 Or at 18 (internal quotation

marks omitted), and Baughman, where this court discussed

OEC 404(4)’s potential effect of opening the door for the first

time to evidence that was historically inadmissible due to

its widespread recognition as unfairly prejudicial, 361 Or at

400-01 (concluding that the legislature intended for courts

to apply the specific balancing test set out in OEC 403 when

due process requires that OEC 404(4) evidence be subject to

some form of balancing).

Nonetheless, we find it helpful to consider the spe-

cific purpose for which the trial court admitted the disputed

evidence in this case: to impeach, in accordance with a state

evidentiary rule, a criminal defendant’s testimony with his

felony conviction history. As we have noted, to determine

whether due process requires a particular rule of criminal

procedure—or, as relevant here, a particular rule of evi-

dence—“we must do our best to determine how the United

States Supreme Court would decide that question.” Williams,

357 Or at 17. And it stands to reason that, if it is unlikely

that the Supreme Court would ever consider a particular use

of evidence so extremely unfair as to violate fundamental

11

Nor has defendant ever argued that the specific impeachment evidence

admitted in this case violated his constitutional rights because it was “extremely

unfair,” Dowling, 493 US at 352, or “so infused the trial with unfairness as to

deny due process of law,” Estelle, 502 US at 75.

Cite as 372 Or 363 (2024) 393

conceptions of justice, then it is equally or even more

unlikely that the Court would require trial courts to engage

in specific procedures—including OEC 403 balancing—

before allowing that use in a given case.

Considering that question, although we need not

endorse the state’s apparent view that the admission of evi-

dence in accordance with a state evidentiary rule will never

violate due process, we see little indication that the Supreme

Court would hold that permitting a defendant’s testimony

to be impeached with the defendant’s felony conviction his-

tory violates the Due Process Clause. As our own case law

suggests, the assessment of whether evidence is “extremely

unfair” appears to depend on not only the character of the

evidence itself, but also on the purpose for which the evi-

dence may be used. To be sure, using defendant’s felony con-

victions to impeach his testimony as OEC 609 contemplates

arguably put “other acts” evidence before the jury, even if it

is not typically characterized that way. And with regard to

“other acts” in general, there are longstanding limits on the

purposes for which that evidence may be used. See Williams,

357 Or at 8-10 (recognizing historical practice of prohibit-

ing use of other-acts evidence to prove propensity in cases

other than child sexual abuse cases); State v. Pinnell, 311

Or 98, 103-04, 806 P2d 110 (1991) (discussing principles);

see also OEC 404(3) (stating general prohibition against use

of evidence of “other crimes, wrongs or acts * * * to prove

the character of a person in order to show that the person

acted in conformity” with that character). But notably, the

use of prior convictions for impeachment purposes does not

fall within the strict parameters of that prohibition. That is,

the general prohibition against “other acts” evidence applies

only if the sole reason for offering evidence of a person’s prior

acts is to show that the person has a propensity to engage

in such conduct, a distinction that the evidence code itself

reflects:

“Evidence of other crimes, wrongs or acts is not admissi-

ble to prove the character of a person in order to show that

the person acted in conformity therewith. It may, however,

be admissible for other purposes * * *.”

394 State v. Aranda

OEC 404(3) (emphasis added); see Williams, 357 Or at 7-10

(discussing history of courts excluding other-acts evidence

to show propensity); State v. Johns, 301 Or 535, 547, 725 P2d

312 (1986), overruled in part on other grounds by State v.

Skillicorn, 367 Or 464, 493, 479 P3d 254 (2021) (OEC 404(3)

is focused on the use of other-acts evidence for the specific

purpose of proving a person’s character “as a basis for the

further inference that he therefore is guilty of the pres-

ent charge” (internal quotation marks and citations omit-

ted)). Here, the evidence is offered for another purpose—to

impeach defendant’s credibility—to which the presumptive

prohibition does not apply. See Edward J. Imwinkelried,

1 Uncharged Misconduct Evidence § 1.11, 44-45 (rev ed 2017)

(so noting).

We recognize that impeaching a criminal defendant

with a prior conviction can give rise to concerns similar to

those resulting from the use of “other acts” evidence: There

is at least some risk that the jury will misuse the prior

conviction as evidence that the defendant is a bad person

deserving of punishment and convict the defendant in part

for that reason, rather than solely due to the strength of the

prosecution’s case. See, e.g., Park, 36 Sw U L Rev at 810 (so

noting). Thus, as with “other acts” evidence that is admissi-

ble for some but not other purposes, the challenge with OEC

609 evidence is limiting its use to the purpose for which,

under our system of justice, it may legitimately be consid-

ered. Cf. Michelson v. United States, 335 US 469, 475-76, 69

S Ct 213, 93 L Ed 168 (1948) (explaining that the reason for

prohibiting character evidence is that “it is said to weigh

too much with the jury and to so overpersuade them as to

prejudge one with a bad general record and deny him a fair

opportunity to defend against a particular charge” (footnote

omitted)).

Despite that similarity, however, we cannot over-

look that there also are significant differences between

using “other acts” evidence to prove propensity and using

prior convictions to impeach a defendant’s credibility as a

witness. For one, unlike propensity evidence, impeachment

evidence in the form of a witness’s criminal record has long

been recognized as probative of credibility and therefore

Cite as 372 Or 363 (2024) 395

relevant and admissible for that purpose. In contrast, cases

holding that the use of other-acts evidence raises due pro-

cess concerns have emphasized that propensity evidence, at

least historically, has been deemed irrelevant for any legiti-

mate purpose.

For example, in McKinney v. Rees, 993 F2d 1378,

1380-84 (9th Cir 1993), cert den, 510 US 1020 (1993), the

Ninth Circuit considered whether the admission of certain

evidence against the defendant, who had been accused of

murdering his mother with a knife, had rendered his trial

fundamentally unfair. The disputed evidence included the

fact that the defendant was fascinated with knives, that he

had previously possessed (but no longer possessed at the

time of the murder) “double-edge, dagger-type” knives, and

that “on occasion he strapped a knife to his body while wear-

ing camouflage pants.” Id. at 1382. Noting that it had previ-

ously held that only “if there are no permissible inferences

the jury may draw from the evidence can its admission vio-

late due process,” id. at 1384 (emphasis in original; internal

quotation marks and alterations omitted), the Ninth Circuit

held that the admission of that character evidence, which

was not only irrelevant to “any fact of consequence,” but

also “emotionally charged” and extensive, had rendered the

defendant’s trial fundamentally unfair and therefore in vio-

lation of due process, id. at 1383-86 (observing as to certain

other evidence that, even though it may have been inadmis-

sible under California’s version of OEC 403 because it was

more prejudicial than probative, the only relevant inquiry

for purposes of due process was whether the evidence was

relevant); see United States v. Morena, 547 F3d 191, 194-

97 (3rd Cir 2008) (district court plainly erred in admitting

extensive evidence of the defendant’s drug-related activities

in trial on weapons charges, where evidence was probative

of only character and therefore not relevant to any legiti-

mate trial issue); see also Estelle, 502 US 62 (Court’s conclu-

sion that “battered child syndrome” evidence was relevant

disposed of defendant’s due process argument, which was

premised on evidence being irrelevant).

In addition to that distinction between admitting

potentially prejudicial evidence whose relevance is undisputed,

396 State v. Aranda

on the one hand, and prejudicial evidence that is not admis-

sible for any legitimate purpose, on the other, impeaching

a defendant with prior convictions under OEC 609 also

involves various procedural mechanisms that the Supreme

Court would likely view as safeguards that help to ensure

that admitting that evidence without OEC 403 balancing

will not render a defendant’s trial “fundamentally unfair.”

Cf. Perry, 565 US at 245 (“tak[ing] account of other safe-

guards built into our adversary system that caution juries

against placing undue weight on eyewitness testimony of

questionable reliability” when rejecting argument that due

process required trial court to determine whether evidence

was reliable).

First, under OEC 609, impeachment evidence is

subject to restrictions intended to limit the potential for

abuse by the state or misuse by the jury. The state may pres-

ent “the names and nature of the crimes of which he has

been convicted[.]” State v. Wilson, 182 Or 681, 697-98, 189

P2d 403 (1948). Typically, impeachment with a prior con-

viction involves asking a witness about the conviction; if the

witness denies it, then the state may present the judgment

of conviction. Alternatively, the state may simply introduce

the judgment of conviction without first questioning the wit-

ness about it. In either event, however, nothing further is

permitted. As we have summarized:

“It is proper to ask a witness if he has ever been convicted

of a crime. This may be done with or without a record of

conviction being available. If the witness answers ‘No,’ that

is the end of the interrogation. If an authenticated record

to refute the negative answer is available it may be intro-

duced to show an actual previous conviction of crime by

the witness. Or, the record may be introduced in the first

instance, without a preliminary question to the witness, to

show previous convictions.”

State v. Rollo, 221 Or 428, 437, 351 P2d 422 (1960). “That

* * * is the limit permissible by our procedure.” Id.; see also

Note, Other Crimes Evidence at Trial: Of Balancing and

Other Matters, 70 Yale L J 763, 776-77 (1961) (discussing

similar restrictions nationally).

Cite as 372 Or 363 (2024) 397

Second, the jury must be given an appropriate

limiting instruction. See OEC 105 (“When evidence which

is admissible * * * for one purpose but not admissible * * *

for another purpose is admitted, the court, upon request,

shall restrict the evidence to its proper scope and instruct

the jury accordingly.”). As the Supreme Court explained in

Michelson:

“We do not overlook or minimize the consideration that

‘the jury almost surely cannot comprehend the judge’s lim-

iting instruction,’ which disturbed the Court of Appeals.

* * * However, limiting instructions on this subject are no

more difficult to comprehend or apply than those upon var-

ious other subjects; for example, instructions that admis-

sions of a co-defendant are to be limited to the question of

his guilt and are not to be considered as evidence against

other defendants, and instructions as to other problems

in the trial of conspiracy charges. A defendant in such a

case is powerless to prevent his cause from being irretriev-

ably obscured and confused; but, in cases such as the one

before us, the law foreclosed this whole confounding line of

inquiry, unless defendant thought the net advantage from

opening it up would be with him. Given this option, we

think defendants in general and this defendant in particu-

lar have no valid complaint at the latitude which existing

law allows to the prosecution to meet by cross-examination

an issue voluntarily tendered by the defense.”

335 US at 484-85 (internal citation omitted); see Spencer,

385 US at 561-63 (defendant’s interests were protected in

part by limiting instruction, the jury is “expected to follow

instructions in limiting this evidence to its proper func-

tion,” and jury instruction at issue was no more difficult for

jury to understand than in Michelson); see also Marshall v.

Lonberger, 459 US 422, 438 n 6, 103 S Ct 843, 74 L Ed 2d

646 (1983) (reaffirming Spencer and stating that “the crucial

assumption underlying the system of trial by jury is that

juries will follow the instructions given them by the trial

judge” (internal quotation marks and citation omitted)).

Finally, a defendant’s conviction history is wholly

inadmissible under OEC 609 unless the defendant volun-

tarily chooses to testify. That renders such evidence sub-

stantially different from “other acts” evidence, which, when

permitted, may be introduced in the state’s case-in-chief

398 State v. Aranda

and is a matter entirely outside the defendant’s control. The

admission of prior convictions, on the other hand, is some-

thing that a defendant has the power to foreclose, albeit at

the cost of forgoing the right to testify. Although we rec-

ognize the difficult tradeoff between important rights that

such a choice must entail, we are charged with anticipat-

ing how the Supreme Court would rule in a case such as

this, and we are unaware of any decision of the Supreme

Court suggesting that having to make such decisions some-

how renders the trial fundamentally unfair. Indeed, as the

Court stated in Michelson in discussing the state’s right to

introduce evidence of a defendant’s bad character to rebut

the defendant’s own evidence of good character, “[t]he price

a defendant must pay for attempting to prove his good name

is to throw open the entire subject which the law has kept

closed for his benefit and to make himself vulnerable where

the law otherwise shields him.” 335 US at 479.12

Given those procedural mechanisms, as well as the

Supreme Court’s pronouncements addressing closely related

issues, we conclude that the Supreme Court is unlikely to

conclude that impeaching criminal defendants with prior

felony convictions is “so extremely unfair” as to “violate[ ]

fundamental conceptions of justice” or that doing so would

“so infuse the trial with unfairness as to deny due process

of law.” See Dowling, 493 US at 354 (no due process violation

in admitting evidence of prior crime for which the defendant

had been acquitted); Spencer, 385 US at 564-69 (no violation

of due process to permit jury to hear, during guilt phase,

evidence of defendant’s prior convictions relevant only to

sentencing); cf. McGautha, 402 US at 183 (rule allowing

12

To be clear, defendant does not contend that the threat of impeachment

with his conviction history unconstitutionally burdened his right to testify, and

we do not consider that issue here. Although we have not had occasion to con-

sider that issue under the Oregon Constitution, we note that that argument, as

distinct from defendant’s due process argument, has previously been considered

by the Supreme Court under the Sixth Amendment. See, e.g., Ohler v. United

States, 529 US 753, 759-60, 120 S Ct 1851, 146 L Ed 2d 826 (2000) (possibility of

impeachment with prior convictions may deter defendant from testifying, but it

does not unconstitutionally burden the defendant’s right to testify); McGautha v.

California, 402 US 183, 215, 91 S Ct 1454, 28 L Ed 2d 711 (1971) (stating that,

although “a defendant who takes the stand in his own behalf may be impeached

by proof of prior convictions,” “it is not thought inconsistent with the enlightened

administration of criminal justice to require the defendant to weigh such pros

and cons in deciding whether to testify”).

Cite as 372 Or 363 (2024) 399

impeachment with defendant’s prior convictions did not

unconstitutionally burden defendant’s right to testify). And

even if the Supreme Court might find particular impeach-

ment evidence “extremely unfair” in a specific case—a ques-

tion not raised by defendant’s appeal—we find no basis to

conclude that the Supreme Court would dictate that trial

courts conduct OEC 403 balancing in all cases in which it

is requested so as to ensure against that occurrence.13 As a

result, we are not persuaded by defendant’s argument that

the Due Process Clause requires trial courts to conduct OEC

403 balancing before admitting a criminal defendant’s con-

viction history as impeachment evidence under OEC 609.

C. The dissent

The dissent does not challenge our conclusion that

due process does not require a trial court to conduct OEC

403 balancing before admitting OEC 609 impeachment evi-

dence against a criminal defendant. Instead, without refut-

ing the reasoning that brought us to that conclusion, the

dissent argues that we should reach a different conclusion,

one that answers—or at least partially answers—a differ-

ent question. See 372 Or at 421 (Walters, S. J., dissenting)

(advocating for rule that trial courts “must, among other

things, balance the probative value of the proffered evidence

against it prejudicial effect” (emphasis added)). In the dis-

sent’s view, we have erroneously focused on whether the

Court of Appeals erred in accepting defendant’s argument

that OEC 403 balancing is required, when, the dissent con-

tends, what is at issue is in this case is whether the trial

court erred in accepting the state’s argument and admitting

evidence of defendant’s felony conviction history without

balancing the probative value of that evidence against its

potential for prejudice. Id. at 365.

13

We are not suggesting that trial courts have no authority to consider a

defendant’s contention that the use of specific impeachment evidence in a partic-

ular case is so extremely unfair as to violate due process, but defendant has not

made that contention here. And, although the state in this case has argued that

evidence admissible under the terms of OEC 609 does not rise to that level, it

also does not suggest that OEC 609 or any other authority requires a trial court

to admit evidence that does violate due process. But, because defendant has not

presented that argument, our decision in this case should not be viewed as fore-

closing it, nor as determining the precise form of analysis that such an argument

would require.

400 State v. Aranda

We respectfully disagree that our opinion—which

considers whether the trial court’s ruling was in error, not

whether the trial court or the Court of Appeals accepted the

wrong party’s argument—is misdirected. We instead think

that, by posing the wrong questions and relying on case law

that is largely or even wholly distinguishable, the dissent’s

approach is misguided. We address those issues in turn.

1. The dissent poses the wrong questions.

We begin with the question presented in this case.

The dissent expressly acknowledges that, “at trial and on

appeal, defendant has argued that due process requires ‘bal-

ancing under OEC 403[.]’ ” Id. at 413. But the dissent does

not address the question raised by that argument. Rather,

based on an erroneous assessment that defendant’s position

has never been that the requisite balancing includes OEC

403’s discretionary component—under which trial courts

have discretion to exclude evidence whose potential for prej-

udice substantially outweighs its probative value14 —the dis-

sent seemingly finds room to embark on a line of inquiry

that wholly sidesteps defendant’s actual argument in favor

of questions no one raises in this case: whether OEC 609

unconstitutionally compels courts to admit evidence that

will deprive defendants of their right to a fundamentally

fair trial, and, if so, what procedure are trial courts consti-

tutionally required to follow to ensure that such evidence is

not admitted?

The dissent’s root concern is that, in light of OEC

609’s mandatory wording, it might be viewed as somehow

overriding a defendant’s due process rights. See id. at 407

(emphasizing that “due process overrides OEC 609 and

requires trial courts to exclude ‘extremely unfair’ evidence”).

14

In the trial court, defendant cited this court’s decisions in Williams

and Baughman, and argued that, consistent with those decisions, due process

required the trial court to subject the state’s impeachment evidence to OEC 403

balancing before allowing its admission. And, as we have explained, those deci-

sions collectively established that, when due process requires trial courts to con-

duct balancing, OEC 404(4)(a) requires that they conduct OEC 403 balancing

in accordance with its terms. 372 Or at 392; see Baughman, 361 Or at 398 (so

stating). Because the terms of OEC 403 expressly grant trial courts discretion

whether to exclude potentially prejudicial evidence, defendant’s argument for

OEC 403 balancing necessarily included an argument that due process required

courts to have that discretion, contrary to the dissent’s understanding.

Cite as 372 Or 363 (2024) 401

If that were that the only point that the dissent wished to

make, then it would require little response. It is axiomatic

that defendant’s right to due process overrides any state rule

of criminal procedure that would render his trial fundamen-

tally unfair. But the dissent does not stop at that simple

observation. Rather, it relies on that observation as jumping-

off grounds for a second due process inquiry, one undertaken

without prompting by the parties or the assistance of any

briefing: Because OEC 609 cannot constitutionally serve as

a gateway for the admission of “extremely unfair” evidence,

what procedure must trial courts follow to ensure that the

admission of OEC 609 evidence will not be fundamentally

unfair, if it is not the procedure dictated by the terms of

OEC 403 as defendant contends?

Notably, the dissent undertakes that inquiry even

though it recognizes that, when evaluating a due process

challenge to the admission of evidence, the focus must be on

the evidence itself and whether its admission would be so

“extremely unfair” as to deprive the defendant of a funda-

mentally fair trial. Dowling, 493 US at 352; see 372 Or at 414

(Walters, S. J., dissenting) (agreeing that “due process does

not require trial courts to exclude evidence proffered under

OEC 609 unless its admission would deny the defendant a

fair trial” (emphasis added)). Yet, despite that recognition,

the dissent would nonetheless conclude that a particular

procedure is required, one at least rooted in OEC 403, if not

OEC 403 balancing per se. See id. at 421 (calling for proce-

dural overlay to OEC 609). For the reasons already articu-

lated, we do not conduct that inquiry in this case, much less

draw any conclusion as to what process may apply.

2. The dissent’s reliance on our own case law is

misplaced.

The dissent purports to find guidance in our own

case law, specifically Williams and Baughman, and federal

decisions construing the Due Process Clause, but the dis-

sent misunderstands the significance of that case law or

places weight on it that it cannot bear. We begin by discuss-

ing our own case law, after which we will briefly address the

dissent’s misplaced reliance on federal case law that does

not support the dissent’s reasoning.

402 State v. Aranda

First, the dissent spends considerable time dis-

cussing our decisions in Williams and Baughman before

concluding that, “when the state offers other acts evidence

for character or noncharacter, propensity or nonpropensity

purposes, due process requires that the trial court engage

in balancing to consider whether the probative value of

the evidence is substantially outweighed by the danger of

unfair prejudice.” Id. at 411. As we will explain, however,

that statement greatly overstates the potential significance

of those decisions here.

In Williams, this court properly applied the Supreme

Court’s framework by first identifying the procedural rule

that the defendant contended was “so fundamental as to be

embodied in the federal constitution,” which in that case

was the rule against using “other acts” evidence to prove the

defendant’s character and related propensity to commit the

charged offense. 357 Or at 17. Here, the procedural rule that

defendant contends is constitutionally required is one that

would compel a trial court to conduct OEC 403 balancing

before admitting evidence of a criminal defendant’s felony

conviction history to impeach his credibility. However, the

dissent never explores the historical underpinnings of any

such rule.

We recognize that, as the dissent correctly notes,

this court in Williams, having not found a historical prac-

tice to support the defendant’s proposed rule in that case—

one that would require OEC 403 balancing before allowing

other-acts evidence in child sexual abuse cases—turned to

other “fundamental conceptions of justice” before conclud-

ing that balancing was constitutionally required in that

context. See Williams, 357 Or at 17-18 (because relevant

historical practice was “not as clear,” turning to “principles

that animate the Due Process Clause”). However, there are

two reasons that our holding in Williams—concluding that

balancing was required before other-acts evidence could be

admitted—cannot sustain the dissent’s view.

The first reason that Williams does not support

the dissent’s view is that, as we have already observed, the

challenged evidence in Williams was specifically offered to

prove the defendant’s character and his propensity to act

Cite as 372 Or 363 (2024) 403

accordingly, i.e., to commit the charged crimes. 357 Or at 7.

Although we ultimately concluded that such evidence would

be admissible (subject to balancing) in child sexual abuse

cases, our analysis was against the backdrop that, in all

other contexts, “other acts” evidence that was probative only

of a defendant’s bad character has historically been rec-

ognized as both irrelevant to any legitimate purpose and

extraordinarily prejudicial. Here the challenged evidence

is defendant’s conviction history, which the state offered to

impeach his testimony. In contrast to the propensity evi-

dence at issue in Williams, (1) conviction history has long

been deemed highly relevant to a person’s credibility; and

(2) defendant’s OEC 403-based objection to that evidence is

that there is a risk that the jury will improperly rely on it as

demonstrating propensity, not that the evidence will be spe-

cifically admitted for that purpose. Thus, although there is

some risk that the jury will use the impeachment evidence

improperly, we do not view that risk to be of the same mag-

nitude as the concerns that informed our ultimate holding

in Williams, nor do we think that the Supreme Court would

equate the two.

The second reason that the dissent’s reliance on

Williams is misplaced is that, as discussed above, the dis-

sent fails to take account of defendant’s argument, which is

that due process requires that OEC 609 evidence be subject

to OEC 403 balancing, not merely that due process requires

the exclusion of evidence that is so extremely unfair that it

violates fundamental conceptions of justice. As we explain

above, 372 Or at 392-93, it is one thing to contend that a

specific evidentiary item is “extremely unfair”; it is another

thing altogether to contend that trial courts must engage

in specific procedures to ensure that unfair evidence is not

admitted. And, whatever legal test due process may require

in this context, there is no basis to conclude, as the dissent

contends, that the factors that due process requires trial

courts to consider are, “among other things,” those dictated

by OEC 403, much less that courts must be permitted to

exclude relevant evidence whenever “its probative value is

substantially outweighed by the danger of unfair preju-

dice[.]” 372 Or at 421 (Walters, S. J., dissenting).

404 State v. Aranda

We recognize that Williams stated, with regard to

propensity evidence admitted under OEC 404(4), that due

process requires OEC 403 balancing. 357 Or at 18. But see

id. at 19 n 17 (declining to reach issue of whether due process

“balancing” may in any way be distinct from that permitted

by OEC 403). But, as the dissent implicitly acknowledges,

that decision has little bearing in regard to impeachment

evidence offered under OEC 609. First, as we have dis-

cussed, other-acts evidence offered to prove propensity has

a long history of being categorically inadmissible, whereas

impeachment evidence has historically been recognized as

relevant and probative. Thus, the dissent’s effort to char-

acterize conviction history as the equivalent of other-acts

character evidence is unpersuasive. Second, as this court’s

subsequent decision in Baughman makes clear, the require-

ment that other-acts evidence be subject to OEC 403 balanc-

ing is a matter of statutory construction—specifically con-

struction of OEC 404(4)—not constitutional interpretation.

361 Or at 399-400 (stating that, where due process requires

balancing before evidence may be admitted under OEC

404(4), the legislature intended that OEC 403 supply the

standard, not due process itself, as the latter understand-

ing would render OEC 404(4)(d) redundant). Thus, neither

Williams nor Baughman supports the view that due process

requires a balancing of the OEC 403 factors before admit-

ting OEC 609 evidence, whether according to the terms of

OEC 403, as defendant contends, or as factors to be con-

sidered “among other” unidentified factors, as the dissent

contends. 372 Or at 421.15

We agree that the procedural question that the dis-

sent identifies is an important one that should be addressed

15

The dissent’s reliance on federal case law fares no better. As we explain

above, 372 Or at 378, although the Supreme Court in Dowling mentions the

availability of FRE 403, it neither holds that balancing under that provision is a

due process requirement nor that evidence that is excludable under that provi-

sion is evidence that would deprive a person of a fair trial. Indeed, the Supreme

Court might be viewed as having affirmatively held that evidence that must be

excluded under FRE 403—which, like OEC 403 weighs the probative value of

evidence against its potential for unfair prejudice—does not necessarily violate

a person’s right to due process. That is because the Court in Dowling upheld the

Third Circuit’s ruling that the district court’s erroneous application of FRE 403

had been harmless, even though that court had applied the harmless-error rule

applicable to subconstitutional violations.

Cite as 372 Or 363 (2024) 405

in an appropriate case, but we disagree that this is such a

case. And, even if this were an appropriate case in which to

decide how courts determine when evidence is “extremely

unfair,” we might hesitate to accept the dissent’s conclusion

that due process necessarily requires trial courts to balance

OEC 609 evidence using the factors found in OEC 403, an

assessment that even the dissent concedes “may not, alone,

determine whether the admission of the proffered evidence

would deny a defendant a fair trial[.]” Id. at 415 (stating that

balancing under OEC 403 “is an essential consideration,”

but not identifying any other considerations).

Ultimately, the dissent disagrees with the conclu-

sion that we reach, but the dissent does not demonstrate

that we either have identified the incorrect principles to

defendant’s case or that we have erroneously applied them.

And, while the legislature may well be interested in fur-

ther exploring the issues raised by the dissent, particu-

larly those attributed to amici, this court is not at liberty to

address them itself, at least not when doing so would require

us to interpret the Due Process Clause more broadly than

we think that the Supreme Court would interpret it. See,

e.g., Sullivan, 532 US at 772 (rejecting Arkansas Supreme

Court’s conclusion that it could construe the federal con-

stitution to provide greater protection than United States

Supreme Court’s own precedents would provide).

III. CONCLUSION

In deciding whether a particular rule of criminal

procedure is required by the Due Process Clause of the

Fourteenth Amendment to the United States Constitution,

we must determine whether either (1) historical practice has

established the rule as a fundamental principle of justice; or

(2) the failure to honor the proposed rule would otherwise

violate a principle entrenched in the central values of our

legal system. Defendant has not met his burden of establish-

ing such a principle, nor has our review of the case law dis-

closed one. And, although we also have considered whether

there are grounds to think that the Supreme Court would

conclude that admitting defendant’s felony conviction his-

tory as impeachment evidence was so extremely unfair that

it violated fundamental conceptions of justice or infused the

406 State v. Aranda

trial with such unfairness as to deny due process of law, it

is ultimately unnecessary to decide that issue, as it is not

an argument that defendant has ever advanced in this case.

Rather, it suffices for us to conclude that due process does not

require OEC 403 balancing to protect against that possibil-

ity. It follows that the Court of Appeals erred in holding that

OEC 403 balancing was required. Accordingly, we reverse

that court’s decision and affirm the circuit court judgment.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is affirmed.

WALTERS, S.J., dissenting.

Respectfully, I dissent.

The constitutional issue that this case presents is

whether OEC 609(1) must be applied as written or whether

it is subject to a due process overlay that permits a trial

court to exclude evidence proffered under OEC 609, and, if

so, whether, in determining if exclusion is required, the court

must, as a step in its analysis, balance the probative value

of the proffered evidence against its potential for unfair

prejudice. The state’s position is that, in enacting OEC 609,

“Oregon has made the constitutionally permissible deter-

mination that a witness’s qualifying convictions must be

admitted when offered to challenge the credibility of the

witness.” Defendant’s position, as I understand it, is that, to

comply with due process, OEC 609 must provide room for a

trial court to exclude proffered evidence and, in determining

whether to do so, the court must engage in balancing.

Rather than explicitly rejecting the state’s position

and addressing the implications of doing so, the majority

states defendant’s position more narrowly and rejects it. The

majority does not endorse the state’s view, but it also does

not address it. Instead, the majority characterizes defen-

dant’s argument as an argument that due process requires

application of a particular procedural rule—OEC 403—and

requires that a trial court conduct “balancing under OEC

403” before admitting evidence proffered under OEC 609. By

that, the majority means that a trial court must apply “OEC

403 in accordance with its terms—that is, balancing the

probative value of evidence against its potential for unfair

Cite as 372 Or 363 (2024) 407

prejudice and making the discretionary decision whether to

exclude the evidence[.]” 372 Or at 365 n 1 (emphasis added).

So characterized, the majority rejects defendant’s argument

and concludes that the Court of Appeals erred in accepting

it.

That, at bottom, is the basis for my dissent. The issue

before this court is not whether the Court of Appeals erred,

but, rather, whether the trial court erred when it accepted

the state’s argument that OEC 609 must be applied as writ-

ten and admitted evidence of defendant’s prior convictions

without balancing the probative value of evidence against its

potential for unfair prejudice. That, in my view, was error.

I write for three reasons: (1) to explicitly affirm what the

majority apparently assumes but does not articulate—that

is, that due process overrides OEC 609 and requires trial

courts to exclude “extremely unfair” evidence;1 (2) to explain

why, in determining whether proffered evidence rises to that

level, a trial court must, as a step in its analysis, engage

in balancing; and (3) to call on the legislature to explicitly

align the Oregon rules of evidence with those in other state

and federal courts law to ensure defendants’ rights to a fair

trial.

The path to the conclusion that due process over-

rides OEC 609 begins with the Supremacy Clause. OEC

609 is unconstitutional if it “ ‘offends some principle of jus-

tice so rooted in the traditions and conscience of our peo-

ple as to be ranked as fundamental.’ ” Medina v. California,

505 US 437, 446, 112 S Ct 2572, 120 L Ed 2d 353 (1992)

(quoting Patterson v. New York, 432 US 197, 202, 97 S Ct

1

I reach that conclusion, in part, from the following statement of the

majority:

“We are not suggesting that trial courts have no authority to consider

a defendant’s contention that the use of specific impeachment evidence in a

particular case is so extremely unfair as to violate due process, but defendant

has not made that contention here.”

372 Or at 399 n 13. Thus, the majority does not take the position that admit-

ting prior felony convictions to impeach a defendant is never so unfair as to vio-

late due process. The majority also states that “it is axiomatic that defendant’s

right to due process overrides any state rule of criminal procedure that would

render his trial fundamentally unfair,” 372 Or at 401, but it does not expressly

recognize that, by requiring a trial court to admit evidence proffered under OEC

609, OEC 609 constitutes such a rule.

408 State v. Aranda

2319, 53 L Ed 2d 281 (1977)). One fundamental principle of

justice is that a defendant is entitled to a fair trial and to

the exclusion of the type of evidence that “is so extremely

unfair that its admission violates fundamental conceptions

of justice,” Dowling v. United States, 493 US 342, 352, 110

S Ct 668, 107 L Ed 2d 708 (1990) (internal quotation marks

omitted), or, stated another way, evidence that would “ ‘so

infuse[ ] the trial with unfairness as to deny due process of

law,’ ” Estelle v. McGuire, 502 US 62, 75, 112 S Ct 475, 116

L Ed 2d 385 (1991) (quoting Lisenba v. California, 314 US

219, 228, 62 S Ct 280, 86 L Ed 166 (1941)). The concept of

unfair prejudice “ ‘speaks to the capacity of some conced-

edly relevant evidence to lure the factfinder into declaring

guilt on a ground different from proof specific to the offense

charged.’ ” Old Chief v. United States, 519 US 172, 180, 117

S Ct 644, 136 L Ed 2d 574 (1997). Consequently, although

OEC 609 requires trial courts to admit evidence of qualify-

ing convictions, due process overrides that rule of evidence

and requires trial courts to exclude such evidence when its

admission would deny the defendant a fair trial. See State v.

Moore, 349 Or 371, 389, 245 P3d 101 (2010) (“in all events,

no evidence may be admitted that would violate state and

federal constitutional standards”).

Had the majority explicitly recognized that due pro-

cess and, thereby, the right to a fair trial override OEC 609,

then the majority would better have understood the next

question before it: When a defendant objects to the admis-

sion of evidence proffered under OEC 609 as violating the

defendant’s right to due process, and the trial court must

decide whether to exclude it on that basis, must the trial

court undertake an analysis that requires it to engage in

balancing?

In answering that question, I find it helpful to begin

with this court’s decisions in State v. Williams, 357 Or 1, 346

P3d 455 (2015), and State v. Baughman, 361 Or 386, 393

P3d 1132 (2017), two cases in which this court interpreted

OEC 404(4), and, in doing so, considered the dictates of due

process. OEC 404(4) provides:

Cite as 372 Or 363 (2024) 409

“In criminal actions, evidence of other crimes, wrongs

or acts by the defendant is admissible if relevant except as

otherwise provided by:

“(a) [OEC 406 through 412] and, to the extent

required by the United States Constitution or the Oregon

Constitution, [OEC 403];

“(b) The rules of evidence relating to privilege and

hearsay;

“(c) The Oregon Constitution; and

“(d) The United States Constitution.”

In Williams, the state offered evidence of the defen-

dant’s “other acts” to prove his propensity to commit the

charged act. The defendant argued that the Due Process

Clause required balancing under OEC 403. This court

agreed, holding that “the only way that a court can ensure

that the admission of ‘other acts’ evidence is not unfairly

prejudicial and a violation of ‘fundamental concepts of jus-

tice’ is to conduct OEC 403 balancing.” 357 Or at 18. That

conclusion, the court reasoned, followed from the United

States Supreme Court’s decision in Dowling and from other

federal court decisions, including United States v. LeMay,

260 F3d 1018 (9th Cir 2001). Id.

In Dowling, the government had offered other acts

evidence for a noncharacter purpose—to prove identity

under FRE 404(b). The Supreme Court considered whether

admission of that type of evidence “failed the due process

test of ‘fundamental fairness.’ ” 493 US at 352. The Court

recognized that the admission of such evidence could pose

a “constitutionally unacceptable risk that the jury will con-

vict the defendant on the basis of inferences drawn from the

[other acts evidence],” but it upheld its admission against

the defendant, because it “believe[d] that the trial court’s

authority to exclude potentially prejudicial evidence ade-

quately addresse[d] this possibility.” Id. at 353.

In LeMay, the Ninth Circuit upheld the constitu-

tionality of FRE 414, a federal rule that, in cases in which

the defendant is accused of child molestation, permits the

admission of other acts of child molestation on any matter to

which it is relevant. The court reasoned that the right to a

410 State v. Aranda

fair trial was safeguarded by the application of FRE 403, a

federal rule that, like OEC 403, permits trial courts to weigh

the prejudicial effect of proffered evidence against its proba-

tive value. 260 F3d at 1030. The Ninth Circuit explained

that the introduction of “other acts” evidence “can amount

to a constitutional violation only if its prejudicial effect far

outweighs its probative value” and that, “as long as the pro-

tections of Rule 403 remain in place to ensure that poten-

tially devastating evidence of little probative value will not

reach the jury, the right to a fair trial remains adequately

safeguarded.” Id. at 1026-27.

Based on its understanding of those federal cases,

this court held in Williams that due process requires a trial

court to conduct balancing under OEC 403 before admitting

“other acts” evidence to prove a defendant’s character and

propensity to commit the charged act under OEC 404(4). 357

Or at 18-19. The court explicitly left open, however, whether

that balancing was “traditional” or “subconstitutional” bal-

ancing, or a narrower, more exacting “due process” balanc-

ing. Id. at 19 n 17. The trial court had admitted the contested

evidence, and this court said that evidence that was admis-

sible under “traditional” balancing also would be admissible

“under any distinct ‘due process’ balancing test.” Id.

In Baughman, the state had offered other acts evi-

dence for a number of noncharacter, nonpropensity purposes—

to establish the defendant’s intent, motive, common plan

or scheme, and the absence of mistake or accident. In this

court, the parties assumed that, before admitting that evi-

dence, the trial court was required to balance the prejudi-

cial effect of the proffered evidence against its probative

value, but they disagreed about the legal standard that

that balancing entailed. The court understood the question

before it to be whether the balancing under OEC 403 is “tra-

ditional” or “subconstitutional” balancing—balancing that

gives the trial court discretion to exclude evidence whose

probative value is substantially outweighed by its prejudi-

cial effect—or, as the state posited, “due process” balancing

that requires the trial court to exclude propensity evidence

under OEC 404(4) “if its admission would render the trial

Cite as 372 Or 363 (2024) 411

fundamentally unfair as a matter of law.” Baughman, 361

Or at 397.

This court decided that, in enacting OEC 404(4)(a),

the legislature intended the courts to conduct balancing

under OEC 403, “according to its terms,” meaning that,

“[u]nder OEC 404(4)(a) and OEC 403, trial courts may exclude

evidence, in the exercise of their discretion, when they deter-

mine that its probative value is substantially outweighed by

the danger of unfair prejudice.” Williams, 361 Or at 402. The

court reasoned that OEC 404(4)(a) and OEC 404(d) “provide

two independent bases for excluding other acts evidence” and

two different legal standards for doing so. Id. OEC 404(4)(a)

gives the trial court discretion to exclude otherwise relevant

evidence after conducting balancing, and OEC 404(4)(d)

makes exclusion of otherwise relevant evidence nondiscre-

tionary when, as a matter of law, its admission would render

the trial fundamentally unfair.2 Id.

Thus, under Williams and Baughman, when the

state offers other acts evidence for character or nonchar-

acter, propensity or nonpropensity purposes, due process

requires that the trial court engage in balancing to consider

whether the probative value of the evidence is substantially

outweighed by the danger of unfair prejudice. The court has

discretion to exclude evidence if its probative value is sub-

stantially outweighed by its prejudicial effect. But in the

narrow circumstance in which the trial court determines

that the prejudicial effect of the proffered evidence so far

outweighs its probative value that its admission would ren-

der the trial fundamentally unfair, then due process requires

its exclusion as a matter of law. See LeMay, 260 F3d at 1026

2

The court noted, however, that it was

“not entirely clear to us that ‘traditional’ balancing and ‘due process’

balancing are as different as the parties assume that they are. * * * [B]oth

standards are intended to ensure a trial that is fundamentally fair. If a trial

court were to determine, in the exercise of its discretion, that the probative

value of other acts evidence was substantially outweighed by the danger of

unfair prejudice, but, nevertheless, were to admit that evidence, that might

well result in a trial that an appellate court would deem fundamentally

unfair. We think it important to note that * * * no court, state or federal, has

distinguished between the balancing required under codified evidentiary

rules and some narrower ‘due process’ balancing.”

361 Or at 402 n 7.

412 State v. Aranda

(where prejudicial effect of evidence “far outweighs” proba-

tive value, constitutional violation occurs). In other words,

under Williams and Baughman, there are two different legal

standards for the admission of other acts evidence—but no

matter which legal standard applies, balancing is the trial

court’s starting point for determining the admissibility of

the proffered evidence.

In this case, defendant does not contend that OEC

404(4) applies to the admission of his past convictions;

rather, he contends that, in interpreting that rule, this court

has decided that due process requires “balancing under

OEC 403” before other acts evidence can be admitted. As

noted, the majority understands defendant’s argument to be

that a trial court must balance the probative value of prof-

fered evidence against its potential for unfair prejudice and

must have discretion to exclude the evidence whenever its

unfair prejudicial effect substantially outweighs its proba-

tive value. Thus, the majority characterizes the question in

this case as whether due process requires both a particular

mode of analysis—a balancing of the probative value of prof-

fered evidence against its potential for unfair prejudice—

and a particular legal standard—discretion to exclude the

evidence whenever its unfair prejudicial effect substantially

outweighs its probative value. I disagree with the majority’s

framing. If the majority were to address and explicitly reject

the state’s position that application of OEC 609 is manda-

tory and hold that due process gives a trial court authority

to exclude such evidence when its admission would deny a

defendant a fair trial, then the majority would be entitled to

proceed to the question of whether, in entertaining defen-

dant’s objection to admission of evidence of his prior convic-

tions, the trial court was required to consider the probative

value and unfair prejudicial effect of that evidence, and to

do so without regard to whether that mode of analysis is cor-

rectly described as “balancing under OEC 403.” And even

the majority’s exclusive focus on defendant’s argument does

not obviate the need for that inquiry.

The majority is correct that, at trial and on appeal,

defendant has argued that due process requires “balancing

under OEC 403,” but defendant does not define that term

Cite as 372 Or 363 (2024) 413

and never argues that due process requires that trial courts

have discretion to exclude evidence proffered under OEC 609

when, in their discretion, they deem the prejudicial effect

of that evidence to outweigh its probative value. And, in

this case, the state takes a different position than it took in

Baughman. In Baughman, the state accepted that the mode

of analysis set out in OEC 403—the balancing of probative

value and prejudicial effect—was required before other acts

evidence could be admitted under OEC 404(3) for nonchar-

acter, nonpropensity purposes. Here, however, the state con-

tends that trial courts must admit—and do not have author-

ity to exclude—qualifying evidence proffered under OEC 609.

Thus, because the state contends that admission of evidence

proffered under OEC 609 is mandatory, the state necessar-

ily takes the position that trial courts do not have authority

to engage in balancing to determine whether to exclude such

evidence, and the state does not brief the issue of the nature

of the balancing—or any other mode of analysis—that a

trial court would be permitted or required to conduct should

that authority exist. As this court explained in Williams and

Baughman, “balancing under OEC 403” can be understood

to mean “traditional” or “due process” balancing—that is,

as a mode of analysis that must be conducted both when

a defendant asks a trial court to exercise its discretion to

exclude evidence as well as when a defendant argues that

the proffered evidence must be excluded as a matter of law.

Particularly given the state’s argument at trial and on

appeal—that trial courts must admit qualifying evidence

proffered under OEC 609 without engaging in any balanc-

ing to satisfy any legal standard—I am loath to read defen-

dant’s argument as taking a position that would foreclose

consideration of a pressing constitutional question import-

ant to courts and counsel: When a defendant objects to the

admission of evidence of the defendant’s prior convictions

as violating the defendant’s right to due process, is the trial

court required to balance the probative value of the evidence

against its unfair prejudicial effect? When defendant argues

that due process requires trial courts to “engage in balanc-

ing under OEC 403,” I understand defendant to mean that,

to ensure a defendant’s constitutional right to a fair trial,

due process requires trial courts to balance the probative

414 State v. Aranda

value of evidence proffered under OEC 609 against its prej-

udicial effect.

To be as clear as I can be, I agree, as I state above,

that due process does not require trial courts to exclude evi-

dence proffered under OEC 609 unless its admission would

deny the defendant a fair trial. But, once this court decides,

as it must, that trial courts have authority to determine

whether that legal standard is met, I see this case as pre-

senting a second question—that is, whether, in deciding how

to rule on an objection to evidence proffered under OEC 609,

trial courts must include, as part of its mode of analysis, a

balancing of the probative value and the prejudicial effect of

the proffered evidence.

Dowling and its progeny provide the constitutional

answer to that question, along with its historical underpin-

nings. As noted, in Dowling, the Supreme Court started from

the premise that it is a fundamental principle of justice that

a defendant is entitled to a fair trial and to the exclusion

of the type of evidence that “is so extremely unfair that its

admission violates fundamental conceptions of justice.” 493

US at 352. In Dowling, the government had offered other

acts evidence for a noncharacter purpose—to prove identity

under FRE 404(b). The Court considered whether admission

of that type of evidence “failed the due process test of ‘funda-

mental fairness.’ ” Id. The Court recognized that the admis-

sion of such evidence could pose a “constitutionally unac-

ceptable risk that the jury will convict the defendant on the

basis of inferences drawn from the [other acts evidence],” but

it upheld its admission against the defendant it “believe[d]

that the trial court’s authority to exclude potentially preju-

dicial evidence adequately addresses this possibility.” Id. at

353. In LeMay, the Ninth Circuit explained that the intro-

duction of “other acts” evidence “can amount to a constitu-

tional violation only if its prejudicial effect far outweighs its

probative value” and that, “as long as the protections of Rule

403 remain in place to ensure that potentially devastating

evidence of little probative value will not reach the jury, the

right to a fair trial remains adequately safeguarded.” Id.

at 1026-27. In Williams, this court took that reasoning one

step further and held that due process requires balancing

Cite as 372 Or 363 (2024) 415

under OEC 403 to protect against admission of such evi-

dence when offered to prove a defendant’s character and pro-

pensity to commit the charged act. In Baughman, this court

accepted that due process also requires balancing to protect

against the admission of other acts evidence when offered for

a noncharacter, nonpropensity purpose. The outcome of that

balancing may not, alone, determine whether the admission

of the proffered evidence would deny the defendant a fair

trial, but it is an essential consideration in deciding whether

admission would be so “extremely unfair” that it would vio-

late due process.

I do not know why the majority is hesitant to reach

that same conclusion here, and, instead, treats other acts

evidence offered under OEC 609 so differently than this

court has treated other acts evidence offered under OEC

404. All other acts evidence implicates not only the right

to fair trial but also the presumption of innocence, Spencer

v. State of Texas, 385 US 554, 575, 87 S Ct 648, 17 L Ed 2d

606 (1967) (Warren, C.J., concurring in part, dissenting in

part); the principle that a defendant “be tried for what he

did, not for who he is,” United States v. Myers, 550 F2d 1036,

1044 (5th Cir 1977); and the requirement of proof beyond a

reasonable doubt, In re Winship, 397 US 358, 364, 90 S Ct

1068, 25 L Ed 2d 368 (1970).3 The majority recognizes that

the admission of evidence of a testifying defendant’s prior

3

Chief Justice Warren recognized the relationship between those principles

in his concurring opinion in Spencer, stating that “[r]ecognition of the prejudicial

effect of prior-convictions evidence has traditionally been related to the require-

ment of our criminal law that the State prove beyond a reasonable doubt the

commission of a specific criminal act.” 385 US at 575 (Warren, C.J., concurring

in part, dissenting in part). An authority on the Federal Rules of Evidence did

likewise, stating as follows:

“The propensity rule shields the jury from evidence that it would likely

overvalue or otherwise mishandle, while the proof beyond a reasonable doubt

requirement ensures that factual uncertainties are resolved in favor of the

accused. Like the reasonable doubt standard, the propensity rule is an essen-

tial corollary to the presumption of innocence.”

Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 Am

Crim L Rev 57, 81 (1995) (footnotes omitted).

Those principles are in play even when evidence is not expressly offered for

a propensity purpose. As the Supreme Court recognized in Old Chief, whenever

evidence of past convictions is offered for a nonpropensity purpose, there is a dan-

ger that that evidence may be “arresting enough to lure a juror into a sequence of

bad character reasoning” and therefore be unfairly prejudicial. 519 US at 173.

416 State v. Aranda

convictions under OEC 609 can give rise to a risk of misuse,

but it sees “significant differences between using ‘other acts’

evidence to prove propensity and using prior convictions to

impeach a defendant’s credibility as a witness.” 372 Or at

394. The majority takes the position that evidence of the for-

mer may not be relevant for any legitimate purpose, whereas

evidence of the latter is always relevant to prove credibility,

and it says that there is a difference between “admitting

potentially prejudicial evidence whose relevance is undis-

puted, on the one hand, and prejudicial evidence that is not

admissible for any legitimate purpose, on the other[.]” 372

Or at 395-96.

That those differences exist does not mean that,

when other acts evidence is offered for the nonpropensity

purpose of impeachment, a trial court must engage in a dif-

ferent analysis than it would if the evidence were offered

to prove propensity or for another nonpropensity purpose.

As this court explained in Williams, trial courts will be

presented with a spectrum of evidence and its admission

will depend on the differing probative value and prejudicial

effect of that evidence:

“At one end of the spectrum, ‘other acts’ evidence that is

offered for nonpropensity purposes—i.e., to prove motive,

intent, identity, or lack of mistake or accident—generally

will be admissible as long as the particular facts of the

case do not demonstrate a risk of unfair prejudice that out-

weighs the probative value of the evidence. At the other end

of the spectrum, as the state recognizes, when ‘other acts’

evidence goes only to character and there are no permissi-

ble inferences the jury may draw from it, it is more likely

that the evidence will be excluded. Such evidence generally

will have little or no cognizable probative value, and the

risk that the jury may conclude improperly that the defen-

dant had acted in accordance with past acts on the occasion

of the charged crime will be substantial.”

357 Or at 19-20 (emphasis in original) (citation and internal

quotation marks omitted). Whether offered to prove char-

acter or offered for impeachment or another noncharacter

purpose, evidence of past convictions may or may not be rel-

evant. And, whether offered to prove character or offered for

impeachment or another noncharacter purpose, due process

Cite as 372 Or 363 (2024) 417

may require that relevant evidence of past convictions be

excluded. The purpose for which the evidence is offered does

not change the nature of the analysis that a trial court must

use to make that determination.

Evidence offered for nonpropensity purposes gen-

erally will have greater legitimate probative value than

evidence offered only to prove propensity, but that does not

mean that there is not a need to consider the extent of the

probative value of the evidence in relation to its prejudicial

effect. For example, in McKinney v. Rees, 993 F2d 1378 (9th

Cir 1993), one of the cases cited by the majority, other acts

evidence was offered to prove that the defendant was lying

(in other words, to impeach his credibility) and that he had

had an opportunity to commit the charged offense. The

Ninth Circuit held that, despite the fact that the prosecution

had offered that evidence for those relevant nonpropensity

purposes, the only inference that the jury could have drawn

from the evidence was that the defendant was the type of

person who would commit the charged offense, and that fact

rendered the defendant’s trial fundamentally unfair in vio-

lation of the Due Process Clause. Id. at 1382-83, 1386.

In LeMay, the Ninth Circuit explained its decision

in McKinney as follows:

“In McKinney, we granted a writ of habeas corpus and over-

turned a murder conviction where the petitioner’s trial had

been infused with highly inflammatory evidence of almost

no relevance. See McKinney, 993 F2d at 1384-85. LeMay,

of course, emphasizes that McKinney held that the ban on

propensity evidence is of constitutional magnitude. What

he misses, however, is the fact that we held that such evi-

dence will only sometimes violate the constitutional right

to a fair trial, if it is of no relevance, or if its potential for

prejudice far outweighs what little relevance it might have.

Potentially devastating evidence of little or no relevance

would have to be excluded under [FRE] 403. Indeed, this

is exactly what [FRE] 403 was designed to do. We there-

fore conclude that as long as the protections of [FRE] 403

remain in place so that district judges retain the authority

to exclude potentially devastating evidence, [FRE] 414 is

constitutional.”

418 State v. Aranda

Id. at 1026-27 (emphasis in original). In other words, the fact

that evidence of a testifying defendant’s prior convictions

may have high probative value in one case does not mean

that similar evidence will be equally probative in another

case. For that reason, a trial court must have authority to

determine whether the value of prior conviction evidence to

prove a fact at issue is of such little relevance and is so out-

weighed by the danger of unfair prejudice that the admission

of that evidence would deny the defendant a fair trial, and it

must have authority to exclude the evidence on that ground.

Similarly, the majority emphasizes the fact that

“impeachment evidence is subject to restrictions intended to

limit the potential for abuse by the state or misuse by the

jury” may be a factor that a trial court will want to consider in

determining whether admission of such evidence would deny

the defendant a fair trial, 372 Or at 395-96. But the existence

of those restrictions does not convince me that balancing is

not also required. The majority discusses the following restric-

tions: (1) the fact that only the “names and nature” of the prior

crimes of conviction are admissible; (2) the fact that the jury

must be given a limiting instruction cautioning against the

use of the evidence for an improper purpose; and (3) the fact

that a defendant can avoid admission of the evidence by vol-

untarily choosing not to testify. 372 Or at 396-98. I agree that

those restrictions may have the benefit of limiting potential

misuse of the evidence, but they do not relieve trial courts

of their responsibility to prevent abuse or misuse of evidence

by excluding unfairly prejudicial evidence. Nor are they, even

in combination, so protective of a defendant’s right to a fair

trial that they obviate the need for the trial court to conduct

balancing.

As to the first restriction cited by the majority, even

when limited to the “name and nature,” prior conviction evi-

dence may be more or less probative or prejudicial depending

on the prior crime and the elements of the charged crime.

Therefore, the fact that only the name and nature of the

crime may be introduced does not eliminate the potential for

misuse of the evidence. With respect to the second restriction,

I note that the courts in Dowling and LeMay did not view the

availability of a limiting instruction as sufficient to protect

Cite as 372 Or 363 (2024) 419

against an unfair trial. Instead, those courts relied on the

rule permitting trial courts to balance the probative value of

the evidence against its prejudicial effect and to exclude par-

ticularly prejudicial evidence as the basis for their decisions.

Dowling, 493 US at 353; LeMay, 260 F3d at 1031.

Finally, I do not think that the fact that a defendant

can avoid admission of evidence of past convictions by choos-

ing not to testify changes the calculus. Forbearance of a con-

stitutional right is not a price that a defendant should be

required to pay to avoid the risk that the prejudicial effect

of the evidence proffered so far outweighs its probative value

that he would be deprived of a fair trial.

The majority cites Michelson v. United States, 335

US 469, 479, 69 S Ct 213, 93 L Ed 168 (1948), for the propo-

sition that “[t]he price a defendant must pay for attempting

to prove his good name is to throw open the entire subject

which the law has kept closed for his benefit and to make

himself vulnerable where the law otherwise shields him.”

Perhaps that was a correct statement in that context of that

case. In Michelson, the defendant chose to testify and pro-

duced evidence of his good character. Fair play permitted the

government to answer in kind. But a defendant who testifies

that the charged conduct did not occur does not open that

door. A defendant who denies having committed the charged

offense is exercising a constitutional right to testify.

For me, the conclusion that due process protects the

right to a fair trial by requiring trial courts to exclude evi-

dence that is “extremely unfair” compels the conclusion that,

in analyzing whether exclusion is required, a court must

“balance[e] the probative value of evidence against its poten-

tial for unfair prejudice.” That analysis may not be the end of

the trial court’s analysis, but it is surely the beginning. I see

the United States Supreme Court, our federal courts, and

states throughout this land as in full agreement, and I would

hold that the trial court’s contrary ruling was erroneous.4

4

Federal courts are required to weigh the probative value of prior convic-

tion evidence against its prejudicial effect before deciding whether to admit it.

FRE 609(1)(B) provides that prior conviction evidence “must be admitted in a

criminal case in which the witness is a defendant, if the probative value of the

evidence outweighs its prejudicial effect to that defendant.” And even before the

adoption of FRE 609, federal courts engaged in balancing. See, e.g., Gordon v.

United States 383 F2d 936, 940-41 (DC Cir 1967) (setting out factors that a court

420 State v. Aranda

In criticizing the majority for failing to agree that

the trial court erred, I do not mean to minimize the signif-

icance of its apparent recognition that OEC 609 is subject

to due process and that trial courts must exclude extremely

unfair evidence proffered under that rule if its admission

would deny a defendant a fair trial. In recognizing that due

process overlay, the majority goes a long way toward ensur-

ing that OEC 609 does not violate “fundamental conceptions

of justice.” At the same time, however, it is important to rec-

ognize that, as amici curiae see it, “a long way” is not far

enough. Amici argue that “rules allowing for impeachment

by prior convictions replicate witness competency laws by

systematically silencing witnesses with criminal records—

who are disproportionately people of color—due to racial

bias at each stage of policing and criminal proceedings.”

They also inform us that the premise that prior convictions

provide information about witnesses’ credibility “is unsup-

ported by empirical research.” To the contrary, amici assert,

research shows “that jurors tend to rely on prior convictions

for the improper purpose of assessing a criminal defendant’s

culpability” and that evidence of prior convictions “can also

trigger implicit and explicit biases among factfinders.”

That research certainly provides a reason for the

legislature to reconsider the bright line that it drew when

it enacted and when the voters amended OEC 609. And it

also reminds us that, as a court, we must be mindful that

we cannot uphold rules, even longstanding rules, that are

“offensive to our judicial sense of what is fundamentally

fair in the context of criminal prosecutions.” Watkins v.

Ackley, 370 Or 604, 631, 523 P3d 86 (2022) (internal quota-

tion marks omitted). If there ever were a practice of admit-

ting evidence of a testifying defendant’s convictions without

permitting a trial court to exclude that evidence if it would

should consider in exercising discretion as to whether probative value of a prior

conviction outweighs its prejudicial effect).

The facts in this case demonstrate the importance of that inquiry. Defendant

was charged with first-degree rape. He expressed his desire to testify at his trial,

and he argued that evidence that he had previously been convicted on two counts

of first-degree sexual abuse would be unduly prejudicial and that the trial court

should conduct balancing to determine whether the evidence should be admitted.

In the alternative, defendant offered to make a judicial admission that he had

committed prior felonies if the court would preclude the state from naming them.

The trial court denied defendant’s requests.

Cite as 372 Or 363 (2024) 421

deny a defendant a fair trial, that practice has long been

replaced, not only in select locations, but across this nation.

Oregon is an outlier, and there is more that Oregon can do

to fulfill its obligation to see “that a jury’s decision is based

on the evidence and not on racial or other similar biases,” id.

at 632, and to ensure that, whatever important policies OEC

609 promotes, they give way to the right to a fair trial.

As one small step to that end, I would hold that,

when the state proffers evidence under OEC 609 and the

defendant objects to its admission, the trial court must

determine whether admission of that evidence would violate

the defendant’s right to a fair trial and, in doing so, must,

among other things, balance the probative value of the prof-

fered evidence against its prejudicial effect.

For the foregoing reasons, I respectfully dissent.

Duncan and Masih, JJ., join in this dissenting

opinion.