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Oregon Supreme Court - April 4, 2019

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by: Rankin Johnson IV • April 5, 2019 • no comments

Summarized by Rankin Johnson, OCDLA

VOUCHING — Indirect evidence of witness truthfulness

Defendant was entitled to offer expert testimony about whether CARES interview followed professional protocols. Trial court and Court of Appeals reversed, remanded.

Defendant sought to offer expert testimony that the CARES interviews of the victims included suggestive questioning and otherwise violated the protocols for forensic interviews. The trial court permitted the expert to testify in general about interview protocols, but not to testify about how the interviews of the victims violated those protocols.

The Supreme Court reversed. It reasoned that vouching evidence, i.e., evidence that a witness is truthful or not truthful, is inadmissible. But expert testimony that is not vouching and that would help the finder of fact to determine whether a witness was truthful is not excluded by the rule against vouching, and the trial court had erred in concluding otherwise. The Supreme Court observed that the ruling would sometimes be subject to the exercise of discretion under either OEC 702 or 403, but the trial court did not exercise that discretion in this case.

Garret, in dissent and joined by Balmer, argued that the error was harmless.

State v. Black 364 Or 579 (April 4, 2019) (Walters) (Washington County, Bailey)

POST-CONVICTION RELIEF — Untimely petitions

Petition filed in 2011 complaining of deficient immigration advice from 1999 was not time-barred, but failed on the merits. Trial court and Court of Appeals affirmed.

The record did not show that petitioner could reasonably have timely raised his claim. But, the appellate decision regarding deficient immigration advice, on which petitioner relied, was decided after his decision became final and was not retroactive. The Post-Conviction Act does not give retroactive effect to all constitutional decisions.

Chavez v. State 364 Or 654 (April 4, 2019) (Kistler) (Multnomah County, Albrecht)