How to Keep Out The Forensic Interview

by: Ryan Scott • May 21, 2025 • no comments

For the past couple of years, I have encouraged a variety of arguments for keeping out the forensic interview in child sex cases. Not a lot of appellate success so far. Right now, though, I want to focus on excluding it under OEC 403. I've made the argument a couple of times myself, I've written an appellate brief on the issue, I've read other appellate briefs on the issue, and I've read trial transcripts where the arguments were raised. Here is a step-by-step process for what I think is the best way to maximize your chances of either keeping out the interview or winning on appeal, although my thought process is constantly involving.

(1) Get a transcript of the CARES/Children's Center/Liberty House interview.

(2) Identify individual statements that should be kept out for the usual reasons, and write a motion in limine to keep out the individual statements.

(3) Have a checklist of everyone the complainant disclosed to prior to the forensic interview. Include a summary of what was said in each one.

(4) Identify every way that the interview as a whole is different than prior statements made by the complainant.

There is "heads I win/tail you lose" aspect to the probative value of the interview. If the statements are consistent with prior statements, the probative value is that consistency. If there are additional or different details, then it is part of the "process" of disclosure. Consequently, when you are highlighting any differences, what you want to note are the following:

(5) The age of the complainant at the time of the interview. The probative value of an interview when the child is 10 is likely to be much higher than when they are 17.

(6) Whether the details are "additional" or "inconsistent."

When filing the motion to exclude the evidence under OEC 403:

(7) Cite all the studies/case law that show mere repetition is persuasive merely because of the repetition/familiarity than the logical force. This is the prejudice you'll need to rely on.

(8) Ask the court to put its OEC 403 balancing on the record. This should be in your written motion but also something you should repeat orally when the judge rules.

At the hearing on your OEC 403 motion:

(9) Offer the transcript, as well as either police reports or an accurate summary of the complainant's prior disclosures.

(10) Remind the trial court you need them to put their OEC 403 balancing on the record. If it's insufficient, tell them that and that you'd like them to do more. What does putting it on the record mean? It means specifically identifying those facts that the court thinks have either probative value or prejudicial effect and why one is or is not outweighed by the other.

(11) If you can, argue that one of the primary concerns of the legislature in allowing this exception is to address those situations where the child might be too scared to testify in front of a crowed, etc, but that's not a concern here (because they are mid-to-late teen or older). Similarly, point out that there isn't consistency. Point out that there aren't additional details so much as different ones. In other words, affirmatively attack the reasons the state will give for the interview is probative.

(12) Note also that unlike other disclosures, which are spontaneous, this is a controlled and manufactured setting and therefore has less probative value than what was disclosed to parents or friends.

If you have additional thoughts, please let me know and I can add them to this list. Let me know also if you'd like credit for them as well.