and submitted November 1, 2018.
review from the Court of Appeals (CC C140510CR) (CA A158879).
E. Daniels, Deputy Public Defender, Office of Public Defense
Services, Salem, argued the cause and filed the briefs for
petitioner on review. Also on the brief was Ernest G. Lannet,
R. Silk, Assistant Attorney General, Salem, argued the cause
and filed the brief for respondent on review. Also on the
brief were Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General.
C. Puracal, Forensic Justice Project, Portland, and Brittney
R. Plesser, Oregon Innocence Project, Portland, filed the
brief for amici curiae Oregon Innocence Project and Forensic
Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan,
Nelson, and Garrett, Justices. [**]
Or. 580] Case Summary: Defendant was charged with sex-related
crimes for his conduct with five teenage victims. He sought
to call into question the reliability of the state's
investigation and the victims' accounts, and, as part of
that strategy, he sought to put on expert testimony
concerning established interviewing protocols and how two
victims' interviews fell short of those protocols. The
trial court permitted the expert to testify generally about
proper interviewing protocols, but it did not allow the
expert to testify about whether the interviews at issue were
in line with such protocols on the grounds that it violated
the vouching rule. The Court of Appeals affirmed.
Held: The vouching rule prohibits testimony that
provides an opinion on the truthfulness of another
witness's trial or pretrial statements; testimony that
does not provide such an opinion and instead gives the
factfinder a tool in assessing credibility does not violate
the vouching rule. The expert's testimony would have
merely identified the ways in which the interviews fell short
of established interviewing protocols, which would have
provided the jury with a tool to assess credibility and not
an opinion on truthfulness.
decision of the Court of Appeals is reversed. The judgment of
the circuit court is reversed, and the case is remanded to
the circuit court for further proceedings.
Or. 581] WALTERS, C. J.
judicially created vouching rule precludes one witness from
commenting on the credibility of another witness's trial
or pretrial statements. This criminal case requires us to
determine whether certain evidence that defendant sought to
offer at his trial violated that rule. Defendant was charged
with sexually abusing several minors, and, as part of his
defense, sought to introduce expert testimony not only about
established protocols for conducting interviews of minors,
but also about whether interviews of two of the alleged
victims were consistent with those protocols. We conclude
that the proffered testimony did not violate the vouching
rule and that the trial court's preclusion of that
evidence was not harmless. We reverse the decision of the
Court of Appeals, State v. Black, 289 Or.App. 256,
407 P.3d 992 (2017), and the judgment of the circuit court,
and remand to the circuit court for further proceedings.
teenage boy, GP, who had been dating defendant's
daughter, reported that defendant had had inappropriate
sexual contact with him at defendant's residence. That
report triggered an investigation, and that investigation
uncovered four other teenage victims, one of whom was JN.
Ultimately, defendant was indicted and proceeded to a jury
trial. There, defendant sought to offer the testimony of Dr.
Johnson, a child psychologist, to explain the established
protocols for interviewing children and to identify portions
of the interviews of GP and JN that, in his opinion, did not
meet those protocols. As defense counsel explained to the
"Dr. Johnson is going to be testifying to his general
qualifications, which are as a psychologist, an experienced
psychologist. A psychologist who has been involved in a lot
of assessments of children, a lot of research connected to
assessments of children, interviewing of children, formation
of questions regarding interviews of children, suggestibility
research that has applied to adolescents, not just young
[364 Or. 582] "There was a suggestion in this case
earlier that we only worry about suggestibility when it
applies to very young children, so he can address that topic
from a standpoint of research. He can comment on the fact
that he has reviewed the [CARES interview of [GP]. He has
reviewed [Detective Massey's] interview of [JN].
"What's already pretty much established. [He can
testify about the] absence of exploration of alternative
theories or secondary gain in the interview of [GP] relative to
"The fact that the methodology used by Detective Massey
[in his interview of JN] involved not only leading questions,
but suggestive questions, and to some degree, what an
emotionally coercive question is.
"He will not be offering testimony on any bottom lines.
He will not be opining on the credibility of any witness or
any victim or the defendant. He will not be talking about the
results of any psychosexual evaluation."
state objected, taking the position that Johnson's
testimony about established protocols would be admissible but
that testimony about whether those protocols had been
followed would provide a "comment on the method of an
interview" and would not be admissible. To permit
Johnson to make that connection, the state argued, would
allow him to impermissibly comment on the credibility of GP
and JN, and therefore would violate the vouching rule.
sought to clarify that Johnson would not be commenting on
whether the detective had engaged in an honest interview but
rather would be testifying as to whether the detective's
interview of JN, for example, raised "concerns for
suggestibility." Notwithstanding that clarification, the
trial court agreed with the state's position and ruled
that Johnson was not "going to be talking about any of
"I agree with [defendant] that Dr. Johnson can
absolutely come in here and talk about interviews and how
interviews [364 Or. 583] should be conducted and-and
suggestibility and what can be suggested, you know, leading
questions and how they can, dah dah dah dah. I'm with you
"He's just not going to get in to talk about any of
the specific interviews in this particular case, because
that's- that's just too close to comment on the
"I could care less if he says that [the detective] did
one of the worse interviews I've ever seen possible in
the case here.
"It's the flip side of that is in so doing then,
he's suggesting there that the credibility of the witness
who made those statements has been affected and is not
credible. And, therefore, it's commenting on the
credibility of a witness.
"I think you can certainly have Dr. Johnson testify to
all the information that he knows and that all the things
that would make an interview bad and what can happen as a
result of those bad interviews in a generic sense and these
good jurors will be able to tie the two together if they so
testified in accordance with the trial court's ruling. He
explained that appropriate protocols include asking
open-ended questions and avoiding leading, suggestive, and
emotionally coercive questions. He also testified that proper
lines of inquiry are those that do not encourage particular
responses and explore alternative hypotheses, including the
potential for secondary gain. Johnson did not testify about
whether the interviewers in this case followed those
protocols or asked appropriate questions when they
interviewed GP and JN. Nor did he testify about the
victims' answers to the interviewers' questions or
expressly state an opinion about whether the victims'
statements about what had happened to them were truthful.
Following the presentation of evidence and the parties'
closing arguments, the jury found defendant guilty.
appealed. He argued that the trial court had erred when it
sustained the state's vouching objection and prohibited
Johnson from testifying that aspects of the [364 Or. 584]
interviews at issue were not conducted in accordance with
established standards. The Court of Appeals affirmed,
concluding that the testimony defendant wanted to offer
violated the vouching rule. Black, 289 Or.App. at
court explained that the rule prohibiting vouching applies to
both a witness's direct comments on the credibility of
another witness and to comments that are
"tantamount" to such direct comments. Id.
at 261. The court took the position that a determination of
whether testimony is tantamount to a direct comment on
credibility requires a two-fold inquiry: (1) whether the
testimony is a "'commonly understood way of
signaling a declarant's belief that a witness is telling
the truth' or, instead, is relevant for a reason other
than indicating that a witness may or may not be telling the
truth"; and (2) whether the testimony is
"'sufficiently beyond the ordinary experience of a
lay finder of fact' such that the expert testimony would
help the jury make its own informed decision in evaluating a
witness's credibility." Id. at 263 (quoting
State v. Beauvais, 357 Or. 524, 543, 545, 354 P.3d
that test, the Court of Appeals first determined that
Johnson's proposed testimony was a commonly understood
way of signaling his belief that GP and JN were not telling
the truth. In the court's view, that testimony would
suggest to the jury that the interviews "did not lead to
truthful answers" and would not be "relevant for an
independent reason." Id. at 264-65. At the
second step in its analysis, the court determined that the
proposed testimony would not "provide information that
was 'sufficiently beyond the ordinary experience of a lay
finder of fact' such that the expert testimony served an
additional purpose in helping the jury make an informed
decision about credibility." Id. at 264
(quoting Beauvais, 357 Or at 545). Rather, the court
concluded, defendant hoped to have his expert testify to
"conclusions that the jury could adequately draw on its
own without further witness assistance." Id.
filed a petition for review in this court, which we allowed.
The questions before us are whether the trial court correctly
sustained the state's vouching objection to Johnson's
proffered testimony and, if not, whether the [364 Or. 585]
trial court's error requires that we reverse
defendant's judgment of conviction.
vouching rule is a judicially created rule of evidence, the
exact contours of which can be "difficult to
trace." State v. Chandler, 360 Or. 323, 331,
380 P.3d 932 (2016). The rule "developed largely in
response to the use of expert psychiatric testimony to attack
a witness's character," but it has come to apply to
experts and lay witness alike. Id. at 330; see
State v. Middleton, 294 Or. 427, 438, 657 P.2d 1215
(1983) (stating that rule applies to all witnesses). The
purpose of the rule is to ensure that "the jury remains
the sole arbiter of witness credibility and that the
jury's role in assessing witness credibility is not
usurped by another witness's opinion testimony."
Chandler, 360 Or at 330. To that aim, the rule
against vouching prohibits a witness from making a direct
comment, or one that is tantamount to a direct comment, on
another witness's credibility. Beauvais, 357 Or
at 545. The rule "applies to credibility opinions about
statements that a witness made either at trial or on some
other occasion." Chandler, 360 Or at 331;
see also State v. Brown, 297 Or. 404, 443, 687 P.2d
751 (1984) (OEC 608, which permits a party to attack or
support a witness's credibility in the form of reputation
or opinion evidence, "complements and supports the
long-standing position of this court that no witness may pass
upon the credibility of another witness in respect to
parties note, and as the Court of Appeals determined,
Johnson's proposed testimony would not have been a direct
comment on the credibility of any witness. Defendant did not
propose that Johnson would state directly that GP or JN were
lying, thereby expressly conveying his opinion that their
statements were not credible. See State v. Isom, 306
Or. 587, 591-92, 761 P.2d 524 (1988) ("We now inform all
trial counsel that this type of cross-examination
[-i.e., if a witness says 'x,' would he be
lying?-] will not be tolerated in any court in this
state."); see also State v. Charboneau, 323 Or.
38, 42-43, 47, 913 P.2d 308 (1996) (state's introduction
of a plea agreement that provides that "the State
believes this charge accurately reflects the role [the
witness] played in the death" of the victim and that
[364 Or. 586] "the state has reason to believe [that the
witness's version of events] is true" analogous to a
witness making an impermissible comment on the credibility of
another witness). The question this case presents is whether
Johnson's proposed testimony would have been tantamount
to such direct statements.
stated before that "it is not always easy to draw the
line between an inadmissible statement that is tantamount to
a direct comment on the credibility of a witness and an
admissible statement that is relevant for a different reason
but that tends to show that a witness is telling the
truth." Beauvais, 357 Or at 545. That is so, at
least in part, because much evidence, especially expert
testimony, will "tend to show that another witness
either is or is not telling the truth."
Middleton, 294 Or at 435. Both parties propose rules
that, they argue, help separate statements that are
tantamount to a direct comment on the credibility of a
witness from those that are not.
rule is categorical: Testimony is tantamount to a direct
comment on the credibility of a witness and must be excluded
if it rests on the witness's opinion that another witness
is truthful or untruthful and conveys that opinion to the
factfinder; testimony that conveys information from which the
factfinder can make an independent determination of
truthfulness is not vouching, and, subject to the other rules
of evidence, is admissible. Applied here, defendant argues
that Johnson's proposed testimony was not predicated upon
his belief or disbelief of GP's or JN's statements.
In fact, defendant asserts, he did not intend to ask Johnson
any questions about those victims' statements, conduct,
or demeanor; instead, he intended to ask Johnson about
whether the interviewers had appropriately conducted their
interviews of GP and JN. That testimony, defendant urges,
would have been relevant and helpful to the jury
notwithstanding whether Johnson believed or disbelieved the
statements that GP and JN made in response to the questions
that they were asked.
contrast, the state's rule casts the vouching inquiry as
requiring a weighing process. The state proposes that, when
an expert witness does not make a direct [364 Or. 587]
statement about the credibility of another witness, but
instead makes a statement that reflects an implicit opinion
about that witness's credibility, a court must assess
both the helpful effect of the evidence and the implicit
opinion that inheres in it. A court may permit the implicit
opinion if the primary effect of the evidence is helpful and
sufficiently remote from the implicit credibility opinion.
That analysis, the state argues, implicates the trial
court's discretionary authority under OEC
to assess the helpfulness of expert testimony and to balance
(consistently with the principles established in OEC
the merits of the testimony against the risk that it will
improperly influence the jury. Applied here, the state
contends that the trial court did not err in deciding to
preclude Johnson from providing the proffered testimony. The
jury had been provided with the established protocols and
could identify the breach of those protocols on its own, so
Johnson's testimony was not particularly helpful. On the
other side of the balance, permitting Johnson to connect the
dots for the jury carried a risk of conveying an improper
opinion about witness credibility. In that instance, the
state contends, the trial court did not abuse its discretion
in prohibiting the testimony because the risk of improperly
influencing the jury outweighed the minimal assistance that
Johnson could provide.
will explain, both parties identify relevant questions that a
court must address when considering the admissibility of
expert testimony, but a trial court's determination of
whether testimony violates the vouching rule is distinct from
a determination of whether that testimony is permitted by the
Oregon Evidence Code. As the trial court correctly
understood, testimony that constitutes vouching is
categorically inadmissible. Whether proffered testimony [364
Or. 588] constitutes impermissible vouching is measured by
whether it conveys one witness's opinion of the
truthfulness of another witness, or, instead, provides
information that permits the jury to make that determination.
A review of our prior cases demonstrates the distinction.
State v. Milbradt, 305 Or. 621, 623, 756 P.2d 620
(1988), the defendant was accused of raping two mentally
disabled women, both of whom the defendant and his wife
occasionally had had over to their house for overnight
visits. At the defendant's trial, the state introduced
the testimony of a psychologist who had interviewed the two
women. Id. at 625. During his testimony, the
psychologist testified that he had experience with detecting
deception and that, in his opinion, one of the victims did
not display any of the indicators of deception. Id.
at 626. He further opined that the victim's "limited
mental capacity" would make it difficult for her to lie
without "trip [ping] herself up five minutes later"
and would "impair her ability to betray someone she
perceives to be a friend," like the defendant.
Id. at 627. This court held that that testimony was
tantamount to a direct comment on the credibility of the
victim. Id. at 630.
court reached the same conclusion about the testimony at
issue in State v. Keller, 315 Or. 273, 275, 844 P.2d
195 (1993), where a medical doctor testified on behalf of the
state in a child sex abuse case. The doctor explained that,
in reaching the diagnosis that the child victim had been
sexually abused, she had looked for whether the victim had
"been coached, been led, is fantasizing, or is indeed
describing something that happened to her own body."
Id. at 277. The doctor explained that the victim
"had given a clear history of an episode of sexual
touching which had happened to her own body" and that
there "was no evidence of leading or coaching or
fantasizing." Id. This court held that the
doctor's statements "amount  to testimony that the
child was credible" and should not have been allowed.
Id. at 285.
Or. 589] Statements by an expert witness that another witness
was not "deceptive" or "fantasizing"-as
the experts in Milbradt and Keller
testified-are statements that disclose an opinion about the
truthfulness of another witness's statements and that
convey that opinion to the jury. See Beauvais, 357
Or at 543 (describing examples of statements
"tantamount" to a direct comment on credibility as
"commonly understood ways of signaling a declarant's
belief that a witness is telling the truth"). Such
statements signal the expert's belief that another
witness is telling the truth, and they invade the jury's
role as the sole arbiter of witness credibility.
same is not true of statements that, although bearing on
credibility, are not statements by one witness giving an
opinion about another witness's credibility. In
Middleton, the 14-year-old victim told several
people that her father (the defendant) had raped her. 294 Or
at 429. After the defendant was indicted, but before his
trial, the victim stated that she had lied about the rape so
that she could get "out on her own." Id.
At trial, the victim again testified that the defendant had
in fact raped her. Id. She was impeached on
cross-examination with her pretrial recantation. Id.
Following the victim's testimony, both the state and the
defendant presented expert testimony from two social workers
who worked with abused children. Id. Both experts,
over the defendant's objections, were asked by the state
and permitted to answer whether the victim's behavior was
typical of young rape victims. Id. at 432-33. The
defendant appealed, and one of his arguments before this
court was that the experts' testimony that the victim had
behaved consistently with other victims of child sex abuse
was an impermissible comment on the victim's credibility.
Id. at 432-34. This court held that that argument
was "not well founded." [364 Or. 590] Id.
at 435. The court acknowledged that "[i]t is true that
if the jurors believed the experts' testimony, they would
be more likely to believe the victim's account."
Id. However, the court continued, "[n] either
of the experts directly expressed an opinion on the truth of
the victim's testimony." Id. For that
reason, the court held that it was not error to admit the
testimony over the defendant's vouching objection.
v. Viranond, 346 Or. 451, 212 P.3d 1252 (2009), provides
another example. There, two witness who, along with the
defendant, had participated in a robbery testified against
the defendant at his trial. Id. at 454. The
defendant cross-examined the witnesses about the lenient
treatment they had received from the state and suggested that
they had fabricated their testimony to curry favor with the
prosecution. Id. The state then introduced the
testimony of the detective who had interviewed the witnesses
as part of the robbery investigation and who was present at
trial when those witness testified. Id. at 455. Over
the defendant's objection, the detective testified that
the witnesses' trial testimony was "consistent"
with their pretrial statements. Id. at 456-57. On
review in this court, defendant argued that the
detective's testimony "serve[d] no real purpose
other than indirectly to bolster the credibility" of the
witnesses and thus constituted an impermissible comment on
their credibility. Id. at 460. In addressing that
argument, this court did not "deny that the
prosecutor's hope in offering [the detective's]
testimony was that it would" rehabilitate the
witnesses' credibility, as that is what the testimony
"was supposed to do." Id. However, that
intent did not mean that the testimony was inadmissible.
Id. The court explained that "consistency has
no necessary connection with veracity," as "a
witness may repeat the same lie multiple times."
witnesses whose testimony was at issue in Middleton
and Viranond did not provide the jury with their
opinions about the truthfulness of other witnesses; instead,
they provided jurors with information that they could use to
form their own opinions on that issue. The expert in
Middleton informed the jury that the fact that the
victim, a witness at trial, previously had recanted her
statements was not unusual, and the detective in
Viranond informed the jury that two witnesses'
trial testimony was consistent [364 Or. 591] with their
pretrial statements. Although those facts could suggest that
those witnesses were being truthful, the testimony was not
testimony is not vouching, and therefore not categorically
inadmissible, does not mean, however, that the testimony is
necessarily admissible. See Chandler, 360 Or at 334
(noting principle). To be admissible, proffered testimony
must comport with other rules of evidence as well. That
notion was apparent in Beauvais, where this court
discussed the various questions that may be presented when a
trial court is considering the admissibility of expert
testimony. There, the state sought to have an expert testify
to a diagnosis of sexual abuse based, in part, on physical
evidence. Beauvais, 357 Or at 528-29. After
determining that that diagnosis was admissible under OEC 702
and OEC 403, this court took up the defendant's argument
that the expert's testimony with respect to the
evaluative criteria used to make that diagnosis was
nonetheless inadmissible under the vouching rule.
Id. at 540. Resolution of that argument lead this
court through a discussion of Milbradt, Keller, and
Middleton. Id. at 543-44. After explaining that the
testimony in Milbradt and Keller was
inadmissible because the declarants' statements were
"commonly understood ways of signaling a declarant's
belief that a witness is telling the truth," and that
the testimony in Middleton did not have that
"primary effect," the court explained that
that difference is "not all that distinguishes
Middleton from Milbradt and
Keller." Id. at 544-45. The court then went on
to discuss Middleton's further inquiry into what
is properly understood as a discrete inquiry under OEC
702-whether testimony is "sufficiently beyond the
ordinary experience of a lay finder of fact such that expert
testimony would" be helpful to the jury. Id. at
Middleton, this court considered whether the
experts' testimony would be helpful to explain
"superficially [364 Or. 592] bizarre behavior by
identifying its emotional antecedents." 294 Or at 436.
The court explained that the test to analyze that question,
"'is not whether a jury is capable of drawing its
own inferences from the evidence presented. Rather, the test
is whether the expert's testimony, if believed, will be
of help or assistance to the jury'"
Id. at 435 (quoting State v. Stringer, 292
Or. 388, 391, 639 P.2d 1264 (1982)). The court determined
that the experts' testimony regarding victim recantation
would "help the jury better assess the witness's
credibility." Id. at 436.
not read the court's discussion of Middleton in
Beauvais as doing anything more than noting that, in
Middleton, the court had been required to contend
with objections based on OEC 702 and on the prohibition
against vouching. The court's subsequent discussion of
State v. Lupoli,348 Or. 346, 234 P.3d 117 (2010),
also rests on the idea that, in considering the admissibility
of an expert's testimony, a trial court must address
objections under the rules of ...