State v. Smith

“[W]hen a party objects to testimony as improper vouching, a court must determine whether the testimony provides an opinion on truthfulness or, instead, provides a tool that the factfinder could use in assessing credibility. That determination does not necessarily require an assessment of whether that specific tool is permitted under the rules of evidence.” State v. Black (Black II), 364 Or. 579, 593 (2019).

Defendant was convicted for multiple sex offenses. Defendant assigned error to the trial court’s decision to deny his motion to dismiss two counts filed in juvenile court but later refiled in adult criminal court, and the trial court's decision to exclude certain defense expert testimony from Defendant’s jury trial. On appeal, Defendant argued that the statutory process that automatically waived Defendant into adult court had violated procedural due process because it stripped him of the juvenile court privileges without a hearing, and that he offered expert testimony about how interviews in the case did not conform to established protocols and guidelines. In response, the State argued that Defendant’s trial counsel chose not to offer an expert’s opinion on the issue. “[W]hen a party objects to testimony as improper vouching, a court must determine whether the testimony provides an opinion on truthfulness or, instead, provides a tool that the factfinder could use in assessing credibility. That determination does not necessarily require an assessment of whether that specific tool is permitted under the rules of evidence.” State v. Black (Black II), 364 Or. 579, 593 (2019). The Court held that because Black II controls, the trial court erred in excluding the offered testimony regarding better questions to ask a child who alleges they were subject to multiple incidents of sexual abuse over a lengthy period. Reversed in part, affirmed in part.