401 P.3d 243
Or. Ct. App.2017Background
- Defendant was convicted of first-degree unlawful sexual penetration based on testimony from an 8-year-old complainant; defendant contended the child’s allegation was a false memory implanted by the child’s mother.
- Defense sought to admit Dr. Daniel Reisberg (cognitive psychologist) to testify generally about false memory and risk factors (age, suggestive questioning, repetition, stereotype induction, rewards/punishment).
- At an OEC 104 hearing, Reisberg testified both generally about false memory and specifically about circumstances in this case after reviewing CARES interview and reports. The court split the proffer into “generalized” (before 8:17 pm) and “case-specific” (after 8:17 pm) testimony.
- The trial court excluded Reisberg’s entire testimony, reasoning generalized testimony would either be unhelpful or tantamount to vouching for the complainant’s credibility (citing Southard and vouching precedents).
- Defendant was convicted; on appeal he argued the court wrongly excluded admissible generalized false-memory testimony and that exclusion was prejudicial. The state relied on Pumpelly to justify rejecting the entire mixed offer of proof and alternatively argued harmless error because similar material arose from the state’s witness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of generalized false-memory expert testimony | State: The court could reject the entire offer because the proffer combined admissible and inadmissible matter (Pumpelly) and generalized testimony risks impermissible vouching | Defendant: Generalized testimony about false memory and risk factors is admissible and distinct from case-specific vouching; it assists the jury’s credibility assessment | Court: The trial court erred; it had itself divided the offer and ruled on the parts, so Pumpelly did not bar review; generalized testimony is admissible under controlling law |
| Whether generalized testimony is tantamount to vouching | State: Generalized testimony would effectively vouch or supplant jury credibility determinations (Southard) | Defendant: Generalized expert explanation of false-memory phenomena helps jurors evaluate credibility and is not a direct comment on truthfulness | Court: Generalized false-memory testimony is not tantamount to vouching and may assist jurors; exclusion on that ground was error |
| Preservation and scope of offer of proof | State: Single offer of proof contained admissible and inadmissible material, so whole may be rejected | Defendant: Although he did not initially separate parts, the court itself distinguished and ruled on parts, preserving the issue | Court: Issue preserved because the court divided and ruled on the generalized vs. case-specific distinction |
| Harmless error | State: Any error was harmless because similar information was elicited from the state’s expert | Defendant: The state’s limited testimony did not substitute for a cognitive psychologist’s full exposition; the error was prejudicial | Court: Exclusion was prejudicial; harmless-error argument rejected; conviction reversed and remanded |
Key Cases Cited
- Pumpelly v. Reeves, 273 Or. 808 (rule permitting rejection of an offer that mixes admissible and inadmissible matter)
- State v. Southard, 347 Or. 127 (inadmissibility of expert statements that effectively vouch for complainant credibility)
- State v. Beauvais, 357 Or. 524 (distinguishing admissible expert assistance from impermissible vouching; experts may explain circumstances indicating suggestibility)
- State v. Lupoli, 348 Or. 346 (expert may describe subsidiary principles used to assess child sexual abuse allegations)
- State v. Remme, 173 Or. App. 546 (discussion of penultimate vs ultimate issues and when expert testimony may inform credibility)
- State v. Tiner, 340 Or. 551 (cited on offer-of-proof and mixed-admissibility principles)