State v. Black

• Decision Date: 04 April 2019
• Docket Number: CC C140510CR (SC S065729)
• Citation: 364 Or. 579,437 P.3d 1121
• Parties: STATE of Oregon, Respondent on Review, v. Johnathan Richard BLACK, Petitioner on Review.
• Court: Oregon Supreme Court

364 Or. 579

437 P.3d 1121

STATE of Oregon, Respondent on Review,

v.Johnathan Richard BLACK, Petitioner on Review.

CC C140510CR (SC S065729)

Supreme Court of Oregon.

Argued and submitted November 1, 2018

April 4, 2019

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.^**

WALTERS, C. J.

The judicially created vouching rule¹ 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.

"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 [CARES² ] 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 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 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, 407 P.3d 992.

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, 407 P.3d 992. 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, 407 P.3d 992 (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, 407 P.3d 992. 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, 407 P.3d 992 (quoting Beauvais , 357 Or. at 545, 354 P.3d 680 ). 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 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, 380 P.3d 932 ; 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...