Doe v. The First Christian Church of the Dalles, Oregon

OEC 609(1) provides: “For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of 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.”

Plaintiff, serving as guardian ad litem for M, appealed from a judgment entered for defendant (“the church”). Plaintiff alleged claims of direct and vicarious liability for the sex abuse of M by an assistant in the church’s youth group. Plaintiff first assigned error to the trial court’s exclusion of evidence of the assistant’s three felony convictions that plaintiff intended to use for impeachment purposes under OEC 609. The church conceded but argued that the error did not affect a substantial right of plaintiff, and therefore did not warrant reversal. The Court found that the trial court erred in excluding the evidence on the ground that it was cumulative, because there was no other evidence in the record establishing those same convictions. However, the Court also agreed that the error did not warrant reversal because the exclusion of the three felony convictions had little likelihood of affecting the verdict. Plaintiff then assigned error to the trial court’s use of the uniform jury instruction for “but for” causation, as requested by the church. Plaintiff argued that because of the concurrent tortious actions, the trial court was required to give the “substantial factor” instruction.  The Court rejected this argument, because Haas explained that the “substantial factor” instruction is only required in those exceptional circumstances where the “but for” instruction fails. 370 Or at 758. Accordingly, the trial court did not err. AFFIRMED.