Brief of the Oregon Criminal Defense Lawyers Association and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Defendant-Respondent.
Argument: If OEC 609 is construed to permit all felony convictions without weighing the risk of unfair prejudice, the rule violates federal due process. The indiscriminate admission of even unfairly prejudicial convictions runs counter to common law traditions that require “fundamental fairness” and generally bar the use of propensity evidence.
Barring the use of OEC 403 prior to admitting felony convictions also burdens the exercise of Oregon defendants’ constitutional trial rights. First, it forces defendants to choose between the right to the right to testify and an impartial jury. Relatedly, the per se admission of prior felony convictions against defendants tends to produce a chilling effect on the right to testify because if they take the stand, they will be unfairly prejudiced. The Supreme Court has made clear, “[t]he right to testify on one’s own behalf at a criminal trial . . . is one of the rights that ‘are essential to due process of law in a fair adversary process.’” Rock v. Arkansas, 483 US 44, 51, 107 S Ct 2704, 97 L Ed 2d 37 (1987) (quoting Faretta v. California, 422 US 806, 817, n 15, 95 S Ct 2525, 45 L Ed 2d 562 (1975)). Second, the threat of per se prior conviction impeachment also impermissibly burdens the right to trial because it both distorts the strength of the government’s case and adds to the coercive nature of the plea-bargaining system of criminal adjudication.
