concurring.
I concur in the result reached by the majority but write this separate opinion to express my view that the trial court had the discretion to exclude the testimony in question on a ground different from that given by him during the offer of proof.
*803As shown in the transcript of the offer of proof, set out in the majority opinion at 297 Or 793, the trial court first pointed out that if the defendant had previously filed a complaint with the police department, then the court would consider it “perfectly proper” to ask the officer about police procedures on cross-examination.
Next under the offer of proof, the police officer on cross-examination by defense counsel testified as to what happens in internal police procedure “when a police officer uses too much force out on the street against a citizen.”
The testimony under the offer was concluded by the police officer testifying on direct examination that the defendant had not filed a complaint against him with the police department.
The trial court at the end of the offer of proof ruled:
“I’m not going to allow the testimony on this matter of proof, but I gave a reason for it, as I said before. I assume there must be a complaint filed with the Police Department by somebody before any activity takes place. You leave an inference with this jury, in a way, that would be that he did have some complaint or something to that effect filed against him and the effect of it. This is not proper, * * *.”
Although OEC 403 was enacted after the trial of this case, it codifies the previously existing law and 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 consideration of undue delay or needless presentation of cumulative evidence.” (Emphasis added.)
My point is that the trial judge was charged with a duty under the then existing law that later became OEC 403 to test the probative value of the impeaching evidence to determine if it was substantially outweighed by the danger of (1) unfair prejudice, (2) confusion of the issues, or (3) misleading the jury. From the nature of the trial itself this duty of the trial judge has to be a discretionary call. The trial judge is not required to find that there was unfair prejudice, confusion of the issues, or a misleading of the jury but only that the danger thereof substantially outweighs the probative value of the evidence. If the trial court in this case had ruled either for or *804against the defendant under OEC 403 we could reverse it only for an abuse of discretion.