[DV_listserv] Good case

[Domestic Violence issues]

Good case (and reminder) for us prosecutors: Be vigilant. Always make the defense lay the proper foundation (many times they won't be able to)!

EVIDENCE-CHARACTER EVIDENCE (OEC 608(1)): Trial court properly excluded a
defense character witness's opinion about the victim's character for truthfulness.
State v. Paniagua, 268 Or App 284, __ P3d __ (December 31, 2014) (Washington)
(AAG Erin Galli). Based on a domestic-violence incident, defendant was charged with
misdemeanor assault and harassment. At trial, he and the victim offered different versions of the
incident. Defendant then offered testimony from a witness, Shaw, about her opinion of the
victim's character for truthfulness. Shaw testified that she met the victim four years ago, she had
five or six brief contacts with the victim within the previous year, and she and the victim "just
kind of saw" each other because they were in the same social circles. On one occasion, Shaw
went to the victim's house and "hung out." The prosecutor objected to the "foundation" before
Shaw offered her opinion, and the trial court (Judge Gayle Nachtigal) ruled that Shaw's contacts
with the victim were not sufficient to establish the foundation necessary to admit her opinion of
the victim's truthfulness under OEC 608(1). Defendant made an offer of proof in which Shaw
testified that the victim had lied to Shaw and to people Shaw knew. Defendant was found guilty.
Held: Affirmed (Nakamoto, J.). The trial court properly excluded Shaw's testimony.

[1] To offer a witness's opinion of an individual's character for truthfulness under OEC 608(1),
the proponent must establish that the witness has had "sufficient personal contact with the
individual to have formed a personal opinion," and the contact must be "sufficiently recent so
that there will be a current basis for the testimony." Thus, the admissibility of the evidence
depends on whether, in the court's discretion, "the contacts on which the opinion is based are
frequent enough and recent enough to have probative value." [2] Here, the trial court could
conclude that "Shaw's own brief, recent contacts with [the victim]-the only permissible basis
for Shaw's opinion testimony-were insufficient to permit her to testify about her opinion as to
[the victim's] character for truthfulness."
http://www.publications.ojd.state.or.us/docs/A152638.pdf


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