State v. Hites-Clabaugh

First, timeliness of one’s disclosure of the need to elicit testimony from an expert witness about particular subject matter is different from timeliness of one’s intention to call an expert witness. The latter must comply with ORS 135.865. Second, ORS 418.747(1),(3), and (4) indicate that “all law enforcement personnel in a county shall conduct child abuse investigations pursuant to the protocols developed by the county’s multidisciplinary team.” Third, expert testimony about child sexual abuse that a layperson usually is unfamiliar with is admissible.

Defendant appealed her guilty verdict of first degree-sexual abuse. In May 2008, Claimant, a third-grade student, reported to her teacher that Defendant, a substitute teacher, sexually abused Claimant. The teacher reported the incident to the school principal. Police officers interviewed both the Claimant and Defendant and concluded that Defendant was responsible for the sexual abuse. At trial, Defendant cross-examined one of the police officers about the adequacy of his investigation. The officer admitted that he was unfamiliar with the Oregon Department of Justice’s Interviewing Guidelines Manual used in these types of sexual abuse cases; thus, Defendant sought to admit expert testimony about the necessity to use such protocols. The trial court denied admission stating that Defendant should have anticipated the need to admit the expert testimony; further, since the officer worked for the City and not the County, the protocols were inapplicable and the testimony was irrelevant. Defendant appealed and the Court of Appeals
reversed, holding that Defendant could not have disclosed the use of expert testimony because the need arose during cross-examination; ORS 418.747 stated that “all law enforcement personnel” shall conduct child abuse investigations according to the protocols. The topic was relevant because the expert could explain why adherence to the protocols is important, which “will assist the trier of fact to understand the evidence.” Reversed and remanded.