State v. Clark, 392 P.3d 337

Background

Five-year-old victim reported sexual contact by defendant; videotaped forensic interview recounted abuse with some inconsistencies; no physical evidence or third‑party witnesses.
Defendant sought to call Dr. Stanulis, a neuropsychologist, to testify about child memory, suggestibility, and flaws in the forensic interview; Stanulis prepared a written report and relied on studies.
State requested and the court held a Brown hearing under State v. Brown and State v. O’Key to assess admissibility of the expert’s scientific testimony under OEC 104, 702, and 403.
The trial court admitted limited general opinions (e.g., that five‑year‑olds can fantasize, that memory is immature and can confabulate, and that interview guidelines recommend assessing developmental level) but excluded certain absolute or credibility‑commenting statements and statistical percentages from unpublished studies.
At trial Stanulis testified in a curtailed fashion; the court sustained objections when his testimony was perceived to opine on the child’s credibility or to state unsupported statistics; defendant withdrew some questions.
Defendant appealed, arguing the court erred in excluding portions of Stanulis’s testimony and studies; the appellate court affirmed, finding no reversible error and that some claims were not preserved.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Exclusion of statement that children show "confusion between fantasy and reality"	Court and state viewed the jurydirected phrasing as conclusory/nonresponsive and already allowed narrower formulation	Stanulis’s statement was a scientifically valid description of child development and admissible	Affirmed: exclusion proper because statement was an unqualified absolute beyond allowed testimony and defendant failed to clarify/preserve objection
Prohibition on expert testifying that the interview had not established the child was "reliable" or "able to distinguish truth"	Such statements cross into impermissible commentary on witness credibility	Defendant says expert may give nonconclusive reasons for inconsistent child reports (Remme/Romero) and that commenting on interview reliability aids jury	Not preserved and not permitted as framed: court correctly barred direct credibility comments; defendant failed to preserve proffer of nonconclusive formulation
Categorical ban on discussing percentages/statistics from studies (e.g., Rawls study)	Court ruled unpublished/non–peer‑reviewed study withdrawn and generally excluded unsupported statistical rates as likely misleading	Defendant argues categorical exclusion of percentages/statistics was error	Affirmed: defendant did not make offers of proof for other statistical sources; without record evidence appellate court cannot assess scientific validity or prejudice
Exclusion of studies cited in Lawson/James (Loftus et al.)	Court limited testimony to avoid legal analysis or case law application and barred mention of other courts’ outcomes	Defendant contends the ruling prevented relevant scientific literature from Lawson/James	Affirmed: court did not categorically bar the underlying studies about suggestive questioning; expert could rely on relevant studies but not cite appellate outcomes or apply legal analysis

Key Cases Cited

State v. Brown, 297 Or. 404, 687 P.2d 751 (expert scientific‑evidence admissibility factors)
State v. O’Key, 321 Or. 285, 899 P.2d 663 (supplemental factors for scientific validity)
Jennings v. Baxter Healthcare Corp., 331 Or. 285, 14 P.3d 596 (OEC 401/702 analysis and multifactor inquiry)
State v. Perry, 347 Or. 110, 218 P.3d 95 (burden to establish scientific validity)
State v. Dulfu, 282 Or. App. 209, 386 P.3d 85 (expert must show indicia of scientific validity)
State v. Sanchez‑Alfonso, 352 Or. 790, 293 P.3d 1011 (scientific evidence admissibility principles)
State v. Remme, 173 Or. App. 546, 23 P.3d 374 (expert may provide nonconclusive reasons from which jurors may infer credibility)
State v. Romero, 191 Or. App. 164, 81 P.3d 714 (psychological evidence about susceptibility to suggestion admissible if it does not directly comment on credibility)
State v. Wyatt, 331 Or. 335, 15 P.3d 22 (preservation requirement for appellate review of evidentiary rulings)
State v. Olmstead, 310 Or. 455, 800 P.2d 277 (offer of proof requirement to preserve excluded testimony)
State v. Lawson/James, 352 Or. 724, 291 P.3d 673 (survey of research on system variables, suggestive questioning, memory contamination)
State v. Marrington, 335 Or. 555, 73 P.3d 911 (behavioral‑science expert testimony may carry persuasive force and requires scrutiny)