442 P.3d 581
Or.2019Background
- Defendant, a pastor, was indicted for three counts of first-degree unlawful sexual penetration based on SC's 2013 allegation of repeated digital penetration when she was a child; six other women later testified they had been sexually abused by defendant as children but most of their claims were time-barred.
- The State disclosed it would call SC and six other accusers; no physical or eyewitness corroboration of the charged acts was presented.
- Defendant moved pretrial to exclude the six other-witness "other acts" testimony (as impermissible propensity evidence) and to bar anyone (parties, witnesses, staff) from calling SC or the accusers "victims." The court denied both motions.
- At trial, SC and the six women testified; detectives, a former church member, and the prosecutor repeatedly referred to the accusers as "victims." Defendant did not object at trial to those references.
- Jury convicted defendant on all counts; Court of Appeals affirmed; Oregon Supreme Court granted review to decide (1) admissibility of the other-acts testimony and (2) whether use of the term "victim" was impermissible vouching and prejudicial.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| Whether witnesses may refer to accusers as "victims" when victimhood is disputed and only the accusers' testimony supports the crimes | Use of "victim" is harmless/legal label under constitutional/statutory victim definitions and, as advocacy, prosecutor may use the term depending on context | The term expresses belief in accusers' credibility and thus is impermissible vouching that undermines presumption of innocence | Witnesses' use of "victim" here amounted to categorical vouching and was inadmissible; error required reversal and remand |
| Whether prosecutor may refer to accusers as "victims" | Prosecutor has latitude as advocate to characterize evidence and may fairly call a person a "victim" depending on context | Same: prosecutor’s use conveys belief in credibility and prejudices defendant | Prosecutor's use is context-dependent; pretrial blanket ban was not required, though improper uses can be remedied; prosecutor's repeated references contributed to prejudice here |
| Whether pretrial motion broadly barring all uses of "victim" should have been granted | Motion was overbroad; trial court properly denied because some uses might be legitimate | Broad pretrial protection was necessary to prevent prejudicial comments | Denial was proper as to prosecutor (discretion to assess context) but improper as to witnesses (categorically barred) |
| Whether error was harmless given overall evidence (including other-acts testimony) | Implicit: any error was harmless because other evidence supported conviction | Repeated vouching was prejudicial given centrality of credibility and absence of corroboration | Error was not harmless; conviction reversed and remanded |
Key Cases Cited
- State v. Chandler, 360 Or. 323 (Oregon 2016) (defines witness vouching and its prohibition)
- State v. Lupoli, 348 Or. 346 (Oregon 2009) (expert testimony that equates to assessing complainant's credibility is improper vouching)
- State v. Black, 364 Or. 579 (Oregon 2019) (categorical exclusion of witness vouching)
- State v. Keller, 315 Or. 273 (Oregon 1993) (witness statements tantamount to declaring a complainant credible are improper)
- State v. Williams, 357 Or. 1 (Oregon 2015) (OEC 404(4) supersedes OEC 404(3) in criminal cases)
- State v. Baughman, 361 Or. 386 (Oregon 2017) (methodology for evaluating admissibility of other-acts evidence under OEC 404 and OEC 403)