State v. Murillo-Bejar

Under OEC 403, "evidence of an expert's diagnosis of child sexual abuse is inadmissible . . . in the absence of physical evidence of abuse." State v. Southard, 347 Or 127, 218 P3d 104 (2009).

Defendant appealed a conviction of three counts of first-degree sexual abuse under ORS 163.427. Defendant assigned error to the trial court’s admission of a police officer’s testimony stating that the victim had received a diagnosis of “highly concerning for sexual abuse.” On appeal, Defendant argued that the trial court’s admission of the officer’s testimony constituted a plain error because it was admitted without physical evidence. In response, the State argued that the testimony was not in plain error for two reasons: (1) because it was relevant to explain the significant time lapse between the victims initial disclosures and any attempt by the police to arrest the Defendant and (2) because the officer did not identify the person who made the diagnosis; so it was not clear that the diagnosis had been made by a credential expert. Under OEC 403, "evidence of an expert's diagnosis of child sexual abuse is inadmissible . . . in the absence of physical evidence of abuse." State v. Southard, 347 Or 127, 218 P3d 104 (2009). The Court held that the testimony given by the police officer was prohibited by Southard because even though the testimony came from a police officer, it had the "aura of expert testimony," and thus was inadmissible without physical evidence. 

Reversed and remanded on Counts 1, 2, and 3; otherwise affirmed.