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State v. Black

Supreme Court of Oregon

April 4, 2019

STATE OF OREGON, Respondent on Review,
JOHNATHAN RICHARD BLACK, Petitioner on Review.

          Argued and submitted November 1, 2018.

          On review from the Court of Appeals (CC C140510CR) (CA A158879). [*]

          Morgen 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, Chief Defender.

          Jordan 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.

          Janis 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 Justice Project.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices. [**]

         [364 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.

         The 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.

         [364 Or. 581] WALTERS, C. J.

         The judicially created vouching rule[1] 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.

         A 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 court,

"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 children.
[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[2] 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[3] in the interview of [GP] relative to [JN].
"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."

         The 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.

         Defendant 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 the interviews":

"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 on that.
"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 credibility.
"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 desire."

         Johnson 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.

         Defendant 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 258.

         The 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 680 (2015)).

         Applying 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.

         Defendant 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.

         The 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 specific conduct.").

         As the 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.

         We have 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.

         Defendant's 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.

         In 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 702[4] to assess the helpfulness of expert testimony and to balance (consistently with the principles established in OEC 403[5]) 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.

         As we 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.

         In 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.

         This 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.[6]

         [364 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.

         The 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.

         State 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." Id.

         The 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 vouching.

         That 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 545.[7]

         In 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.

         We do 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 ...

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