Experts and advocates push HB 2641 to let judges balance prior-conviction impeachment; prosecutors oppose change

The House Judiciary Committee heard substantive testimony Feb. 26 on House Bill 2641, a proposal to change when prior criminal convictions can be used to impeach a witness’s credibility at trial. The bill would replace Oregon’s current mandatory-admission rule with a judicial balancing test similar to the federal rule of evidence allowing judges to exclude prior convictions when their prejudicial effect substantially outweighs probative value.

Representative Willie Choateson, who discussed the bill in committee, said the measure is intended to promote accuracy, fairness and access to justice. He and supporters said Oregon’s current rule — which permits felony convictions within 15 years to be used to impeach witness credibility without judicial balancing — discourages victims, defendants and third-party witnesses from testifying and may compound racial disparities.

Legal scholars who testified described the state as an outlier. Julia Simon Kerr, Evangeline Starr Professor of Law at the University of Connecticut School of Law and co‑founder of the Coalition for Prior Conviction Impeachment Reform, testified that empirical research does not support the assumption that prior convictions predict untruthfulness and that jurors commonly use prior-conviction information for impermissible purposes. “Jurors don’t actually use prior convictions to weigh the truthfulness of a witness’s testimony,” she said, summarizing published studies; instead, she said, prior convictions tend to make the evidence look stronger against defendants.

Anna Roberts, professor of law at Brooklyn Law School and a cofounder of the coalition, put Oregon in a small group of states that remove judicial discretion; she said 36 states and federal courts permit a balancing test, while a few states prohibit impeachment by prior conviction entirely.

Survivor-advocate testimony emphasized practical consequences. Jessica Klein, a restorative justice practitioner who identified herself as a survivor and advocate, said survivors may avoid reporting or participating if they fear their own past convictions or substance-use history will be used to discredit their testimony. Klein said many survivors have criminal records or substance-use histories arising from efforts to survive abuse and urged lawmakers to support HB 2641 to prevent unrelated past convictions from undermining credible testimony.

The Oregon District Attorneys Association opposed the bill. Bridal Powell, a deputy district attorney in Clackamas County testifying for the ODAA, argued compliance with historical legislative changes — including the voter-approved 1986 victims’ rights measure that shaped current rules — and said the proposed change would introduce two different balancing tests (one for defendants and one for other witnesses) and increase inconsistency across courtrooms. Powell also noted policy and case-law splits among federal circuits and cautioned that adopting a balancing test would create new litigation and variability.

Committee members asked about practical effects if the law changed; witnesses debated whether a balancing test would increase testimony from defendants and victims and whether it would materially affect conviction rates. No committee vote was taken at the hearing, and witnesses said negotiations and additional briefing would continue.