2 : to cause to have
prejudice : prepossess with opinions formed without due
knowledge or examination : bias the mind of : give an
unreasonable bent to < a critic> * * * to judge
beforehand usu. unfavorably : PREJUDGE."
Webster's Third New Int'l Dictionary, 1788 (unabridged ed 1993)
(emphasis in original).
The term "prejudice" is a familiar legal standard. It
appears in a number of statutes and rules.(3) This court has
construed the term "prejudice" in the context of lawyer
disciplinary rules. See, e.g., In re Haws, 310 Or 741, 747, 801
P2d 818 (1990) (in the context of DR 1-102(A)(4), which prohibits
conduct prejudicial to the administration of justice,
"'prejudice' means 'harm' or 'injury'").
The dictionary definitions of the verb "prejudice" and
the Haws decision confirm that, at its core, "prejudice" means to
"harm" or "injure." In the context of ORS 132.560(3), the
"prejudice" standard authorizes the court to protect a party from
the harm or injury that the party likely will suffer as a result
of the joinder of multiple offenses.
The "prejudice" standard in ORS 132.560(3) demonstrates
that the legislature intended to authorize the court to safeguard
the parties from potential injury or harm to their interests in a
fair trial. As indicated in Brooks v. Gladden, 226 Or 191, 204,
358 P2d 1055 (1961), this court determines what fairness requires
in any setting by evaluating the specific interests of the
parties at stake in light of our legal traditions and the
applicable rules of trial procedure:
"Ultimately the question is, as we have already
suggested, one for our judicial sense of fairness,
guided by our knowledge of the traditions which have
shaped procedural rights and by our understanding of
the mechanics of trial procedures, including the
functioning of the jury in our present day practice."
The court's sense of fairness, as described in Brooks,
guides the court in identifying the interests of a party that
arguably may be prejudiced by joinder of multiple offenses for
trial. The interest of a party that is at stake in the context
of ORS 132.560(3) is the interest in a trial conducted
efficiently and in accordance with all applicable laws, including
the constitutions, statutes, and rules of procedure and evidence,
and in a decision based on a dispassionate consideration of the
evidence rather than bias, emotion, or other improper criteria.
The actual or likely impairment of that interest of a party,
resulting from the joinder of multiple offenses in a single
charging instrument, constitutes "prejudice" within the meaning
of ORS 132.560(3). We give effect to that meaning in this
setting.
The state argues that this court, by interpretation,
should add the adverb "substantially" before the word
"prejudiced" in ORS 132.560(3). According to the state,
defendants in many criminal cases will suffer at least some
degree of prejudice from joinder of offenses, and a slight
prejudice from joinder should not justify severance. The state
also contends that this court should consider the trial court's
determination regarding the presence or absence of prejudice as
an exercise of discretion that is subject to appellate review
only for abuse of discretion.
The state's first argument implies that, unless the
court adopts the modification that the state requests, the
standard of prejudice in ORS 132.560(3) will lead trial courts to
order relief from joinder too frequently. However, the
legislature did not modify the term "prejudiced" in the statute.
This court's task is to discern the legislative intention from
the words that the legislature enacted, not to add a word to the
statute that the legislature did not enact. See ORS 174.010,
which provides, in part:
"In the construction of a statute, the office of
the judge is simply to ascertain and declare what is,
in terms or in substance, contained therein, not to
insert what has been omitted, or to omit what has been
inserted; * * *."
We decline to amend the statute under the guise of construing it.
We also disagree with the state's second contention.
The statute does not indicate that the trial court's
determination about whether joinder of offenses causes prejudice
is a discretionary choice. Rather, prejudice in this context is
a legal standard. Under the statute, the trial court examines
the facts stated in a party's motion to determine whether, under
the circumstances, the joinder of offenses is likely to cause
prejudice to that party. The court's determination whether the
facts stated in the motion show the existence of prejudice is a
legal determination that is subject to appellate review for
errors of law. If the trial court determines that the facts show
prejudice, the statute contemplates that the court next will
determine what relief is necessary to dispel the prejudice. By
contrast, the court's determination of the appropriate form of
relief from prejudice is a choice that the statute commits to the
trial court's discretion. Therefore, the court's choice is
subject to appellate review for abuse of discretion. Because the
trial court determined in this case that defendant's motion did
not demonstrate the existence of prejudice from the joinder of
offenses for trial, we review that decision for legal error.
Defendant focuses on what he calls the "real prejudice
here," i.e., the testimony of two separate victims in one trial.
According to defendant, the court should conclude categorically
that prejudice exists if: (1) the accusatory instrument charges
multiple unrelated offenses involving violence or sexual assault;
(2) the court would not admit evidence of each offense under OEC
404(2) or (3), which we quote below, in separate trials; and (3)
the defendant chooses not to testify in his defense against each
offense.
We disagree with defendant's categorical approach to
the question of prejudice under ORS 132.560(3). Courts apply few
legal standards that are more case specific than the standard of
prejudice. The statute contemplates that the court will engage
in each case in a practical analysis of the prejudice entailed in
joinder of multiple offenses for a single trial and will not
conclude automatically that prejudice exists in every case that
involves allegations of sexual misconduct, violence, or multiple
victims. Allegations of that sort, considered in combination
with other circumstances described in the motion, may justify the
conclusion that prejudice exists in a particular case. But, in
our view, that conclusion must flow from a case-by-case
assessment rather than the "one size fits all" approach that
defendant advocates.
Defendant next asserts that he demonstrated prejudice
here because joinder of the offenses subjected him to the loss of
certain protections against admission of the state's evidence
under OEC 404(2) and (3)(4) and OEC 403.
(5) We address those arguments in order.
Defendant asserts that the trial court's conclusion --
that evidence of each occurrence would be inadmissible in
separate trials -- demonstrates that joinder of all offenses for
trial necessarily subjected him to a loss of his right under OEC
404(2) and (3) to prevent the admission of character evidence and
evidence of other crimes, wrongs, or acts. According to
defendant, this court in State v. Johns, 301 Or 535, 725 P2d 312
(1986), required trial courts to determine the relevance of prior
crimes evidence and observed that a trial court may exclude such
evidence from a trial under OEC 403, if its probative value is
outweighed by "the danger of unfair prejudice," 301 Or at 556,
among other factors. Defendant urges the court to follow the
analysis in Johns in deciding whether joinder of offenses for
trial, with its inherent prospect for admission of evidence of
unrelated crimes, wrongs, or acts in a single trial, would cause
prejudice to a defendant. For the following reasons, we reject
that argument.
The trial court correctly considered whether evidence
of defendant's multiple criminal acts would be admissible in
separate trials on the charged offenses. That inquiry is
probative, at least to some degree, of whether joinder causes
prejudice to defendant. However, the trial court's response to
that question did not indicate whether the trial court determined
that that evidence was inadmissible in a joint trial of the
charged offenses. Insofar as defendant's motion raised the
potential unfairness of admitting evidence of defendant's other
crimes, wrongs, or acts, the legal inquiry necessarily must focus
on the admissibility of such evidence in a joint trial of all
charges. Viewed in that light, the trial court's conclusion
about the inadmissibility of evidence of defendant's offenses in
separate trials furnishes no support for defendant's claim of
prejudice under ORS 132.560(3).
The inquiry into the likelihood of prejudice under ORS
132.560(3) may encompass an analysis of the admissibility in a
joint trial of evidence of prior crimes, wrongs, or acts under
OEC 404(3) and Johns. Those rules, and all pertinent rules of
evidence, govern the admissibility of evidence of a person's
character in a trial of joined charges. However, the question of
prejudice under ORS 132.560(3) is separate from, and is not
necessarily controlled by, the question of the admissibility of
other crimes evidence under OEC 404(3). In that connection, it
is important to recall that, as this court held in Johns, 301 Or
at 544, OEC 404(3) is an inclusionary rule. The rule authorizes
courts to admit evidence of other crimes, wrongs, or acts for any
purpose that does not run afoul of the prohibition in OEC 404(3)
on using such evidence "to prove the character of a person in
order to show that the person acted in conformity therewith."(6)
The state did not propose to offer evidence of
defendant's offenses in order to prove his character or
propensity to commit certain crimes. Because the charges against
defendant were joined lawfully for trial under ORS 132.560(1),
the evidence of defendant's criminal behavior during each
incident was relevant to prove that defendant had perpetrated the
particular offenses to which that evidence pertained. That
qualifies as a valid noncharacter purpose that supports admission
of the state's evidence of defendant's criminal acts. Because
the admission of that evidence would not violate OEC 404(3), the
trial court correctly determined that defendant failed to show
that he would suffer prejudice under ORS 132.560(3) from the
admission of that evidence.
Defendant also claims that permitting the state to
prove multiple unrelated offenses in a single trial causes
prejudice because, despite the relevance of such evidence to the
joined offenses, the evidence indirectly effects a violation of
the rule against proving criminal propensity in OEC 404(3). We
do not disagree that other crimes evidence, offered in a joint
trial, may carry that collateral effect. However, as Johns
emphasized, the prohibition in OEC 404(3) applies only if the
sole purpose that underlies the offer of other crimes evidence is
to prove that a person acted in conformity with the person's
character. Johns, 301 Or at 548. Even if the state's other
crimes evidence carried the collateral effect that defendant
describes, that does not erase the fact that the evidence also
was relevant to prove offenses that the court properly joined for
trial. We reject defendant's argument because, in our view, it
necessarily would undermine the legislature's policy choice to
authorize joinder of unrelated charges for trial.
We turn to defendant's argument based on OEC 403.
According to defendant, the trial court abused its discretion
under OEC 403 in failing to recognize that the prejudicial effect
of the evidence of multiple unrelated offenses outweighed its
probative value.
At the outset, we note that the "danger of unfair
prejudice" (emphasis added) standard in OEC 403 performs a
different function than the "prejudice" standard in ORS
132.560(3). The standard in OEC 403 calls for a judicial
determination of the extent to which evidence, although relevant,
will expose a party to unfair prejudice during a trial. That
standard focuses solely on evidence that carries a danger of
unfair prejudice, and not evidence that is "prejudicial," because
all relevant evidence causes some degree of prejudice to the
party against whom the proponent offers it.
By contrast, the standard of "prejudice" in ORS
132.560(3) is not qualified. It focuses the court's analysis on
any circumstance resulting from the joinder of offenses that
harms the moving party's right to a fair trial, such as, for
example, defendant's claim that joinder would deprive him of
protections in the Oregon Evidence Code against the admission of
evidence. If a moving party demonstrates prejudice from the
joinder of offenses, ORS 132.560(3) leaves no room for a further
judicial assessment of whether the prejudice is "unfair" to the
moving party.
Defendant's OEC 403 argument, in substance, sought two
distinct rulings from the trial court. First, defendant sought a
determination that the state's evidence of defendant's
involvement in multiple offenses was inadmissible under OEC 403
in a joint trial, because the danger of unfair prejudice,
resulting in part from the testimony of two complaining witnesses
describing multiple offenses of a sexual nature, outweighed the
probative value of that evidence. Assuming the correctness of
that argument, defendant then sought a separate determination
that, because the evidence supporting the charges was
inadmissible in a joint trial, defendant was "prejudiced" under
ORS 132.560(3) by joinder of the offenses for trial.
The trial court implicitly rejected defendant's first
argument under OEC 403. We agree with defendant that this court
reviews the trial court's determination regarding the
admissibility of evidence under OEC 403 for abuse of discretion.
Johns, 301 Or at 558-59.
"Evidence is prejudicial under OEC 403 if it will tempt
the jury to decide the case on an improper basis.
Prior crime evidence is prejudicial if it invites the
jury to resolve the case on the improper basis that the
defendant is a bad person."
Id., at 558. We cannot say as a matter of law that OEC 403
required the court to exclude evidence of defendant's offenses
here. To be sure, there was at least some degree of danger that
admitting evidence of defendant's multiple offenses in a joint
trial would tempt the jury to decide the case on the basis of
defendant's perceived propensity to commit crimes.(7) However, the
evidence also was probative of defendant's guilt of the charged
offenses to which the evidence related. Defendant himself
stressed that the two incidents involved few similarities and had
no logical or factual connection. The trial court could have
decided the admissibility question under OEC 403 either way.
Under the circumstances, we find no abuse of discretion under OEC
403 in the court's decision to allow the state to offer its
evidence of defendant's offenses in a joint trial.
The foregoing discussion demonstrates that a joint
trial of the charged offenses did not expose defendant to a loss
of the protection against improper evidence embodied in OEC
404(2) and (3), and OEC 403. Consequently, the trial court
correctly rejected defendant's claim that the court's application
of those rules caused him prejudice under ORS 132.560(3).
We next consider defendant's argument that a joint
trial infringed his right not to testify regarding some of the
charges against him.
The trial court found that "defendant may not wish to
testify regarding one of the events." (Emphasis in original.)
Like the trial court, we conclude that that fact alone does not
amount to a showing of prejudice under ORS 132.560(3). Defendant
filed his motion to sever before trial and renewed his motion
after the state finished offering evidence about the first of the
two incidents. At those points in the proceeding, defendant did
not know, or at least did not establish, whether he would testify
and, if he did, whether he would offer evidence about the first
or second incident, or both.(8) We conclude that defendant was so
noncommittal about his desire not to testify that his claim,
viewed alone or in conjunction with his other arguments, failed
to show that a joint trial would prejudice him.(9)
Finally, defendant contends that the court's failure to
sever the counts for trial denied him due process of law.(10)
Defendant did not raise that federal constitutional issue at
trial, and he raises the claim at this level only in a summary
manner. We decline to address that question.
The foregoing discussion leads us to conclude that the
trial court did not err in denying defendant's motions to sever
the criminal counts for trial.
The decision of the Court of Appeals and the judgment
of the circuit court are affirmed.
1. The legislature has amended several of the statutes
that are relevant to this proceeding. See Or Laws 1993, ch 278,
§ 1 (amending ORS 132.560 (1991)); Or Laws 1995, ch 657, § 12;
ch 671, § 10 (amending ORS 163.427 (1991)); Or Laws 1997, ch 694,
§ 1 (amending ORS 163.160 (1991)). Neither party argues that the
amendments affect the analysis of this case.
2. Subsequent inferences in this opinion to ORS 132.560
are to the 1991 version.
3. See, e.g., ORS 10.050(2) (judge may excuse a juror
whose presence on the jury would "prejudice the parties" to the
trial); ORS 19.360(1) (pending appellate review of an order
relating to an undertaking or a stay, the trial court may take
action "necessary to prevent prejudice to the parties"); ORS
28.110 ("no declaration shall prejudice the rights of persons not
parties to the proceedings"); ORCP 22 E (court may order a
separate trial of certain claims to "avoid prejudice").
4. OEC 404(2) and (3) provide:
"(2) Evidence of a person's character is not
admissible for the purpose of proving that the person
acted in conformity therewith on a particular occasion,
except:
"(a) Evidence of a pertinent trait of character
offered by an accused, or by the prosecution to rebut
the same;
"(b) Evidence of a pertinent trait of character
of the victim of the crime offered by an accused, or by
the prosecution to rebut the same or evidence of a
character trait of peacefulness of the victim offered
by the prosecution to rebut evidence that the victim
was the first aggressor;
"(c) Evidence of the character of a witness, as
provided in ORS 40.345 to 40.355; or
"(d) Evidence of the character of a party for violent
behavior offered in a civil assault and battery case when
self-defense is pleaded and there is evidence to support
such defense.
"(3) Evidence of other crimes, wrongs or acts is not
admissible 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, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident."
In 1997, the legislature enacted OEC 404(4), which
makes admissible in criminal actions relevant "evidence of other
crimes, wrongs or acts by the defendant." Or Laws 1997, ch 313,
§ 29. The legislature directed that that statute "apply to all
criminal actions pending or commenced on or after December 5,
1996." Or Laws 1997, ch 313, § 38. Neither party has argued
that the enactment of OEC 404(4) applies to this case or has any
effect on our analysis of the parties' arguments.
5. OEC 403 provides:
"Although relevant, evidence may be excluded if
its probative 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 presentation of cumulative evidence."
6. See ____ Or at ____ n 4 (slip op at 9-10 n 4) (quoting
OEC 404(3)).
We do not address in this case the effect, if any, of
the enactment in 1997 of OEC 404(4) on OEC 404(3).
7. Had the court decided, pursuant to OEC 403, that
evidence of defendant's multiple crimes, although relevant, was
not admissible for any of the reasons stated in OEC 403, ORS
132.560(3) would require the court to determine whether joinder
of the offenses for trial would cause prejudice to defendant.
8. After the court denied defendant's motion during trial,
the state completed its case. During his case-in-chief,
defendant took the stand and gave testimony regarding each
incident.
9. Under the facts of this case, we do not address whether
a defendant's assertion of a right to remain silent about less
than all joined charges can show that joinder of multiple
unrelated offenses for trial creates prejudice under ORS
132.560(3).
10. Defendant's assertion that the trial court denied him
"due process of law" raises no issue of state constitutional law
because the Oregon Constitution contains no due process clause.
Rather, that claim asserts only those issues that arise under the
Due Process Clause of the Fourteenth Amendment to the United
States Constitution, which provides:
"[N]or shall any State deprive any person of life,
liberty, or property, without due process of law;
* * *."