STATE OF OREGON, Respondent, v. MICHAEL DOUGLAS BURR, Appellant, 18 Or. App. 494

SCHWAB, C.J. Upon trial without a jury, defendant was convicted of arson in the first degree, OBS 164.325. On appeal he makes four assignments of error. One does not warrant discussion. The other three address a single issue: may the credibility of a witness who is a juvenile be impeached by evidence that in a juvenile proceeding he admitted

an act which, if committed by an adult, would constitute a crime within the meaning of OBS 45.600, which states: “A witness may be impeached by the party against whom he was called, * * * but he may not be impeached by evidence of particular wrongful acts, except that it may be shown by his examination or by the record of the judgment, that he has been convicted of a crime.” An admission of perpetration of

an act is not the equivalent of an adjudication that the act constituted a crime. Further, by statute, OBS 419.543, “a[n] adjudication by a juvenile court that a child is within its jurisdiction is not a conviction of a crime or offense.” The basic statute, the intent of which is furthered by OBS 419.543, is OBS 419.567 (3), which reads in pertinent part: “No information appearing in the record of the case [the juvenile proceeding] * * * relating to the child’s history * * * may be disclosed * * * without the consent of the [juvenile] court * * Furthermore, assuming for the sake of argument that ORS 45.600 was susceptible of the broad

interpretation defendant seeks, we would be going against the thrust of current judicial thinking if we were to so interpret it. See the majority and dissenting opinions in Marshall v. Martinson, 268 Or 46, 518 P2d 1312 (1974), and authorities cited therein. Defendant argues that Davis v. Alaska, 415 US 308, 94 S Ct 1105, 39 L Ed 2d 347 (1974), holds that the

interpretation we give the above statutes would violate his Sixth Amendment right to confront witnesses against him. We do not so read Davis but, rather, interpret it as holding solely that the confidentiality of a juvenile offender’s record must give way to the right of “effective cross-examination for bias of an adverse witness.” (Emphasis supplied.) 39 L Ed 2d at 356. In the case at bar, two state’s witnesses were juveniles, each of whom had admitted to a series of burglaries in juvenile court proceedings.

The defendant made no showing at trial nor does he contend on appeal that the inquiries he sought to make concerning the juveniles’ admissions related to “bias,” see, n 1 supra, or anything more than an attempt to use the admissions as the equivalent of previous convictions of crimes for the purpose of attacking the juveniles’ credibility by treating the admissions as the equivalent of convictions under ORS 45.600. Affirmed. The dissent does not disagree that Davis v.

Alaska, 415 US 308, 94 S Ct 1105, 39 L Ed 2d 347 (1974), involved impeachment to establish bias, but would apparently hold that whenever a party desires to impeach a young witness by showing a juvenile court adjudication of delinquency, this necessarily includes an attempt to show bias. This disregards the long-recognized distinction between impeachment by showing bias, a relatively direct attack on credibility, versus impeachment by showing prior conviction, a relatively collateral attack on credibility.

This distinction was recognized by defense counsel at trial when he stated his desire to impeach the juvenile witness was limited to the latter: “We are attacking the veracity of the witness, Your Honor, and we are not bringing out that that’s a crime; we are just trying to find out what kind of a guy we are talking to here.” However, we concede that the position adopted by the dissent can be supported by some of the broad language in Davis.

But we are persuaded to limit our decision to the more narrow holding of Davis because otherwise the practice of impeachment by prior convictions, a practice subject to considerable contemporary debate, would be elevated from its present statutory basis, ORS 45.600, subject to change by the legislature, to an immutable constitutional basis.