State v. Dye

401 P.3d 243, 286 Or. App. 626, 2017 Ore. App. LEXIS 865
CourtCourt of Appeals of Oregon
DecidedJuly 6, 2017
Docket1202081CR; A155696
StatusPublished
Cited by2 cases

This text of 401 P.3d 243 (State v. Dye) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dye, 401 P.3d 243, 286 Or. App. 626, 2017 Ore. App. LEXIS 865 (Or. Ct. App. 2017).

Opinion

DUNCAN, J. pro tempore

Defendant appeals a judgment of conviction on one count of first-degree unlawful sexual penetration, ORS 163.411, for which he received the presumptive sentence of 25 years’ imprisonment, ORS 137.700(2)(b)(F). On appeal, defendant argues that the trial court erroneously excluded his proffered expert testimony regarding false memory, and, thereby, undercut his ability to argue that the child complainant’s accusations against him were the product of a false memory rather than his abuse. The state does not dispute that the specific part of the expert’s testimony that is the subject of defendant’s assignment of error—generalized testimony regarding false memory and the circumstances that cause it—would have been admissible if offered independently of the rest of the expert’s testimony. But, according to the state, that was not how defendant proffered the testimony. According to the state, the expert’s testimony was proffered and rejected in its entirety, so defendant cannot now argue on appeal that the court should have admitted a discrete part of his offer of proof. See Pumpelly v. Reeves, 273 Or 808, 812, 543 P2d 682 (1975) (“It is well established that when a single offer of proof contains both admissible and inadmissible matter, as in this case, it is not error to reject the entire offer.”). Alternatively, the state argues that the exclusion of the testimony was harmless in any event, because defendant was able to make many of the same points about false memory through one of the state’s experts.

For the reasons that follow, we agree with defendant that the rule described in Pumpelly is inapplicable in this circumstance, because the trial court separately analyzed and ruled on the admissibility of the part of the expert testimony that is the subject of defendant’s assignment of error. Because that ruling was incorrect, as the state essentially concedes, and because we conclude that the exclusion of that testimony prejudiced defendant, we reverse his conviction and remand for further proceedings.

BACKGROUND

Defendant was charged with sexually abusing C, who was 8 years old. At the time of the alleged abuse, C and her mother, AM, lived with defendant’s stepbrother, R. The [629]*629state presented evidence that, one night, while defendant was staying with them and AM and R were sleeping, defendant put his hand up C’s pajama pants and inserted his finger into her vagina.

Defendant’s theory of the case was that he touched C’s leg to wake her up and that AM, who did not like defendant, had planted a memory of sexual abuse in C through her questioning of C and repeated suggestions about defendant. In support of that theory, defendant intended to offer testimony from Dr. Daniel Reisberg, a professor of cognitive psychology who studies memory. The state filed a motion in limine to exclude Reisberg’s testimony and requested a hearing under OEC 104 on its admissibility.

At that hearing, Reisberg testified that he had “specialize [d] on the topic of memory and in the last couple of decades * * * been primarily focused on how people remember emotional events that they have experienced in their lives, and with a special focus on the kinds of memories that are likely to be of interest to the justice system.” He then testified extensively on the subject of “false memory,” which he explained refers to “the situation in which someone might be honestly, sincerely telling you exactly what they remember and so they’re not lying, they’re telling you what they remember, but at the same time they have it wrong; they are reporting on things that are just different from actual events and so they’re not telling you the truth, either.” He described, among other things, the circumstances that tend to increase the risk of false memories in children, including the passage of time since the event, improper questioning (leading as opposed to open-ended questions from an adult), repetitive assertions by an adult, particularly a trusted adult (“Mr. Smith hurts little girls”), stereotype induction (whereby an adult characterizes another person, such as “Mr. Smith is a really clumsy man,” and then invites a child to comment and contribute to a conversation), a parent convincing a child to lie or adding false details to an actual event, and a parent rewarding or punishing a child for the child’s responses.

Reisberg testified that a child’s susceptibility to the creation of a false memory under those circumstances [630]*630can depend on age. He explained that a preschooler is more susceptible to a “suggestion coming in from the outside,” whereas children between seven and nine years old are the most susceptible to false memories created by “means of imagination or inference.” “To a large extent, though, by the time a child is 8, perhaps 9, at that point the child’s memory for most purposes works about the same way an adult’s memory does,” but “nobody gets to an age at which they’re no longer vulnerable” to false memories. He testified that “the factors are the same” for adults; “I mean, it’s a little bit difficult, more difficult, in an adult to plant these memories but, I mean, it’s easy to find studies in which with just a little bit of suggestion researchers have gotten 25 and 30 and 40 percent of the people believing in something that never happened at all.”

Later in his testimony, Reisberg was asked whether he had reviewed materials regarding defendant’s case. He responded that he had reviewed the report of the interview of C conducted by Children At Risk Evaluation Services (CARES) and police reports, had watched the CARES interview, and had seen materials from custody hearings involving C. Reisberg then explained that “there are certainly factors in this case that struck me as sorts of things that have in many, many studies been shown to increase the likelihood of false memories, which would increase my concern about whether this is [sic] might be a false memory.” He then proceeded to testify about the particular circumstances that could have contributed to the creation of a false memory in C, including the passage of time between the alleged abuse and documentation of that abuse, the questioning of C by her mother, the possibility of emotional rewards from mother based on C’s report, and stereotype induction by C’s mother.

After Reisberg finished testifying, the prosecutor argued, among other contentions, that defendant would be unable to establish that any of the high risk circumstances actually existed with regard to C, which the court understood to mean “there’s not even going to be a foundation for these high risk circumstances or circumstances that create a high risk[.]” The prosecutor further represented that another district attorney from her office had “contacted the [631]*631different District Attorney’s offices throughout the State to check on whether or not Dr. Reisberg had been allowed to testify in different counties,” and that, “basically, every time this memo has been filed, the Court has excluded the testimony. So the Court has not allowed his testimony to come in because it’s basically backdoor vouching.”1

After further argument by the parties, and the prosecutor’s statement that “this really does come down to vouching” under cases like State v. Southard,

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Related

State v. Saunders
429 P.3d 1049 (Court of Appeals of Oregon, 2018)
State v. Miranda
417 P.3d 480 (Court of Appeals of Oregon, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
401 P.3d 243, 286 Or. App. 626, 2017 Ore. App. LEXIS 865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dye-orctapp-2017.