State v. Chandler ( 2016 )

No. 60 September 22, 2016 323
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
BRIAN JAMES CHANDLER,
Petitioner on Review.
(CC CR1101757; CA A152098; SC S063096)
On review from the Court of Appeals.*
Argued and submitted November 13, 2015.
Eric Johansen, Deputy Public Defender, Salem, argued
the cause and filed the brief for petitioner on review. With
him on the brief was Ernest G. Lannet, Chief Defender,
Office of Public Defense Services.
Michael A. Casper, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
With him on the brief were Ellen F. Rosenblum, Attorney
General, and Paul L. Smith, Deputy Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Baldwin, Brewer, and Nakamoto, Justices.**
BALDWIN, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
______________
**  On appeal from Clackamas County Circuit Court, Ronald D. Thom, Judge.
269 Or App 388, 344 P3d 543 (2015).
**  Linder, J., retired December 31, 2015, and did not participate in the deci-
sion of this case.
324 State v. Chandler
Case Summary: Defendant moved to redact portions of a videotaped pretrial
interrogation in which a detective indicated her belief that defendant was lying
and that the victims were telling the truth. Defendant argued that the detective’s
statements constituted impermissible vouching evidence. The trial court denied
the motion, a jury convicted defendant of two counts of first-degree sexual abuse,
and the Court of Appeals affirmed. Held: (1) A person’s out-of-court statement
about the credibility of a witness or nonwitness complainant is not subject to the
categorical prohibition against vouching evidence unless it is offered for the truth
of the credibility opinion that it expresses; (2) to preserve an argument that a
credibility opinion is unfairly prejudicial, a party must specifically object under
OEC 403.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
Cite as 360 Or 323 (2016) 325
BALDWIN, J.
In this criminal case, defendant was convicted of two
counts of first-degree sexual abuse. ORS 163.427. Defendant
assigns error to the trial court’s admission of a videotaped
pretrial interrogation of defendant by Detective Gates. The
videotape, which was played for the jury, included state-
ments by Gates indicating her belief that defendant was
lying and that the victims were telling the truth. On appeal,
defendant argued that the trial court erroneously denied his
motion to redact Gates’s statements, because, under OEC
403, the prejudicial impact of those statements outweighed
their probative value. The Court of Appeals concluded that
defendant had failed to preserve his argument under OEC
403. The court rejected defendant’s remaining argument
that Gates’s statements constituted impermissible vouch-
ing testimony. We allowed review and, for the reasons we
explain below, affirm.
I. BACKGROUND
The Court of Appeals summarized the undisputed
facts as follows:
“The conduct at issue occurred at the home of D, the
12-year-old victim. She lived there with her mother, father,
and two brothers. A, the seven-year-old victim, is related to
the family and stayed at the home one night. Defendant was
a close friend of the family and also stayed that night. Both
D and A later reported to family members that defendant
had touched them. D said that she awoke to find defendant
rubbing her thigh near her genital area. A said that defen-
dant had touched her under her clothes. She later told a
CARES interviewer that defendant had touched her on her
‘pee’ with his hand.
“Gates received a report of suspected abuse from the
Department of Human Services and attended A’s CARES
interview. Gates later interviewed defendant; at the end
of that approximately two-hour interview, she arrested
defendant. That videotaped interview is the subject of this
appeal. In the interview, defendant repeatedly denied the
allegations. Gates made numerous comments indicating
that she believed the victims and that defendant was not
being truthful.”
326 State v. Chandler
State v. Chandler, 269 Or App 388, 389-90, 344 P3d 543
(2015).
Before trial, defendant moved to redact portions of
the videotaped interview, arguing that those portions were
inadmissible for various reasons. As relevant to this appeal,
defendant contended that certain of Gates’s statements
constituted impermissible comments on the credibility of
other witnesses that are categorically inadmissible. We do
not quote all of the challenged excerpts; however, the fol-
lowing excerpts are representative of the type of statements
that Gates made throughout the interview to the effect that
she believed the victims to be truthful and defendant to be
untruthful:
“[GATES]:  [B]ut if I have someone saying a completely
different story than everyone else—I have a little kid say-
ing you did something and she’s crying and scared, doesn’t
want to go back to grandma and grandpa’s, has no reason
to lie about this, has no reason to pin it on you. She doesn’t
know you.
“* * * * *
“I have a little girl that’s saying what she’s saying and
I’ve got video of it and it’s extremely telling ‘cause it’s heart
breaking. The girl had no history of, you know, lying, mak-
ing accusations against people that have turned out to be
lies.
“* * * * *
“[GATES]:  * * * So here’s how I work. When I talk to
people[,] usually the suspect is the very last person I talk
to ‘cause I want to know as much about you as I can. I want
to know * * * as much about that incident, what people saw
and what people heard, you know, what you talked to peo-
ple about since that happened.
“I want to know everything. I want to know about your
past. I want to know what you’re doing now. And I want to
talk to you and talk to you like I don’t know any of it and
see if you’re going to lie to me about stuff you don’t even
have to lie about.
“And that’s exactly what you’ve done. And so some of
[the] stuff I know you’ve been honest about. And I can see
Cite as 360 Or 323 (2016) 327
you act a certain way when you say something that’s truth-
ful and I see you act a different way when you’re saying
something that I already know is a lie.
“So it’s kind of nice because you’re lying[,] thinking
you’re helping yourself, but it’s showing me what you look
like and how your body reacts when you lie.
“* * * * *
“[GATES]:  And that’s what I’m saying. If you’re just
going to say, ‘Oh, everybody’s a liar. All these people that I
trust that are family to me that consider me an uncle, and,
you know, I’m like a son to them, they’re all suddenly lying
to me. They all lied about me and they have no reason to be
lying about me because they just are.
“ ‘Believe me, I didn’t do it. I wasn’t there. I suddenly
have amnesia on these parts. * * * But trust me[,] I’m not
a bad guy.’ * * * Why should I trust you if you lied to me?
You’re telling me to go against logic.
“Now, if you just told me, ‘Yeah, I did it. This is why
and this is who [I am],’ then maybe I could believe who you
are. But right now you’re already lying to me, so why would
I believe who you’re saying you are? It goes against what
you’re showing me that you are.”
The trial court denied defendant’s motion to redact,
concluding that the rule prohibiting one witness from com-
menting on the credibility of another witness did not apply
to the challenged statements.1 The court explained:
“The rest of the thing * * * falls into two categories: * * *
number one, * * * this is not a rule where * * * one witness
is testifying, giving his opinion as to another witness’s
credibility.
“It’s [a] fair comment when the officer during [her]
interrogation says, ‘Well, somebody else told me this and
somebody else told me that.’ And so I don’t think that’s a
violation of the rule and so [s]he’ll be allowed to do that.
“As far as the officer[’]s making statements that some
witnesses said this and some witnesses said that, which
is, of course, somewhat hearsay, but I think[,] * * * taken in
1
The court granted defendant’s motion to redact as to other portions of the
videotaped interview not relevant to this appeal.
328 State v. Chandler
the context of the interrogation[,] the intent is to try to get
the defendant’s response.
“And, therefore, I don’t think there’s any violation of any
rules.”
Defendant appealed, assigning error to the trial
court’s denial of his motion to redact. Defendant argued that
Gates’s statements indicating her belief that defendant was
untruthful and that the victims were truthful constituted
impermissible vouching evidence, and that they should have
been excluded under OEC 403.2 The state responded that
defendant failed to preserve his argument under OEC 403
and that, even assuming his argument was preserved, the
trial court did not abuse its discretion by admitting the chal-
lenged evidence.
The Court of Appeals agreed with the state
that defendant had failed to preserve his argument and
affirmed. Chandler, 269 Or App at 389. The court noted
that defendant had not developed any argument under
OEC 403 in his motion to redact, nor cited the primary
case on which his appellate argument relied—State v.
Southard, 347 Or 127, 140-41, 218 P3d 104 (2009) (holding
that medical diagnosis of child sex abuse is inadmissible
under OEC 403 in absence of physical evidence, because it
poses risk that “the jury will not make its own credibility
determination, which it is fully capable of doing, but will
instead defer to the expert’s implicit conclusion that the
victim’s reports of abuse are credible”). Instead, defendant
had argued in the trial court only that Gates’s comments
were inadmissible under the rule that one witness may
not opine on the credibility of another witness. The Court
of Appeals noted that those two principles—the prin-
ciple that a witness may not opine on another witness’s
credibility and the OEC 403/Southard unfair prejudice
principle—are distinct. Chandler, 269 Or App at 393.
In the court’s view, had defendant made an OEC 403
2
OEC 403 provides:
“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay or needless
presentation of cumulative evidence.”
Cite as 360 Or 323 (2016) 329
argument, “the trial court would have had occasion to
weigh the probative value against the asserted prejudice,
make a record of its findings, and give an appropriate
limiting instruction if the court deemed it necessary.” Id.The court thus concluded that defendant failed to preserve
his argument under OEC 403, and, because he had not
requested plain-error review of that argument, the court
did not address it further. Id.The Court of Appeals rejected defendant’s remain-
ing argument that the trial court erred in admitting Gates’s
statements because those statements impermissibly com-
mented on the credibility of other witnesses. Id. at 394. In
synthesizing this court’s case law on the rule prohibiting
one witness from commenting on the credibility of another
witness—also known as the rule against “vouching”
testimony—the court appeared to draw a hard line between
credibility opinions that are rendered in court versus out-
side of court. The court noted that this court’s line of vouch-
ing cases “has involved in-court testimony, not (as in this
case) out-of-court statements admitted as evidence.” Id. In
particular, the Court of Appeals cited this court’s decision
in State v. Odoms, 313 Or 76, 829 P2d 690 (1992), in support
of its conclusion that the rule against vouching testimony
does not encompass out-of-court statements commenting on
a witness’s credibility. Chandler, 269 Or App at 394 (citing
Odoms, 313 Or at 83-84). Because the challenged state-
ments in this case were made outside of court, the Court
of Appeals concluded that defendant’s argument under the
vouching rule failed. Id.On review, defendant reprises his contention that
the trial court erred in admitting the portions of the video-
taped interview in which Gates indicated her belief that
defendant was lying and that the victims were telling the
truth. Defendant argues that those statements, which were
admitted into evidence as an exhibit, directly and improp-
erly commented on his credibility and the credibility of the
victims. Even if those statements did not constitute direct
vouching testimony, defendant contends that they were
tantamount to direct vouching, because they invaded the
jury’s role of determining witness credibility. Defendant
also reprises his contention that the trial court erred by not
330 State v. Chandler
excluding Gates’s statements as unfairly prejudicial under
OEC 403.
The state, in response, argues that the categorical
rule against vouching testimony should not be applied to
out-of-court statements about a witness’s credibility that
are not offered for the truth of the matter asserted—i.e.,
that are not offered to prove the witness’s credibility or
lack of credibility. The state contends that applying the
vouching rule to such statements would sweep too broadly
and exclude relevant, important evidence. In this case, the
state argues that the trial court did not err in admitting
Gates’s statements, because those statements were not
offered for their truth. The state also argues that defen-
dant failed to preserve his alternative argument under
OEC 403.
II. ANALYSIS
A.  Comments on Witness Credibility
This court has long held that one witness may
not comment on the credibility of another witness. State v.
Lupoli, 348 Or 346, 357, 234 P3d 117 (2010); see also State
v. Middleton, 294 Or 427, 438, 657 P2d 1215 (1983) (“We
expressly hold that in Oregon a witness, expert or otherwise,
may not give an opinion on whether he believes a witness is
telling the truth.”). That rule developed largely in response
to the use of expert psychiatric testimony to attack a wit-
ness’s character. As this court observed in State v. Walgraeve,
243 Or 328, 333, 413 P2d 609 (1966) (denying rehearing),
the use of expert testimony in that manner “would create a
class of cases in which opinion evidence would, in fact, deter-
mine the credibility of witnesses. Unless the function of a
jury is to find the truth, its role is devoid of substance.” The
rule prohibiting vouching testimony thus serves the policy
goals of ensuring that the jury remains the sole arbiter of
witness credibility and that the jury’s role in assessing wit-
ness credibility is not usurped by another witness’s opinion
testimony. See State v. Snider, 296 Or 168, 172, 674 P2d 585
(1983) (noting that “vice” of vouching testimony is that jury
might give “special credence” to such testimony, “implying a
guarantee of the witness’s veracity”).
Cite as 360 Or 323 (2016) 331
Although the vouching rule3 is an evidentiary rule,
it is not codified in the Oregon Evidence Code. Rather, is
a judicially created rule. See Middleton, 294 Or at 438(expressly adopting rule); State v. Brown, 297 Or 404, 443,
687 P2d 751 (1984) (noting that rule prohibiting witness
from passing upon credibility of another witness is “the
long-standing position of this court”). Perhaps as a result,
the exact contours of the rule may be difficult to trace. Since
its inception, however, this court has had a number of oppor-
tunities to clarify the rule. For example, this court has held
that the rule applies to direct comments on the credibility
of another witness, as well as to statements that are “tanta-
mount” to stating that another witness is credible. See State
v. Beauvais, 357 Or 524, 543, 354 P3d 680 (2015) (“A direct
comment on the credibility of a witness or a statement that
is ‘tantamount’ to stating that another witness is truthful is
not admissible[.]”). This court also has made clear that the
rule applies to credibility opinions about statements that
a witness made either at trial or on some other occasion.
See State v. Keller, 315 Or 273, 284-85, 844 P2d 195 (1993)
(“[T]his rule applies whether the witness is testifying about
the credibility of the other witness in relation to the latter’s
testimony at trial or is testifying about the credibility of the
other witness in relation to statements made by the latter on
some other occasion or for some reason unrelated to the cur-
rent litigation.”). Additionally, the rule applies to comments
about the credibility of either a witness or a nonwitness com-
plainant. See Lupoli, 348 Or at 364-65 (holding that expert
testimony improperly vouched for credibility of nonwitness
complainant).
This case requires us to consider another facet of
the vouching rule—namely, whether, and how, the rule may
be applied to one witness’s unsworn, out-of-court statements
about the credibility of another witness. Two prior decisions
of this court are relevant to that assessment: Odoms, 313
Or 76, and State v. Charboneau, 323 Or 38, 913 P2d 308
(1996).
3
The rule that one witness may not comment on the credibility of another
witness applies both to comments that bolster and to comments that undermine
a witness’s credibility. In this opinion, we use the phrase “vouching rule” to refer
to the general prohibition against both types of credibility commentary.
332 State v. Chandler
In Odoms, a detective testified at the defendant’s
trial and recounted statements that the detective had made
while interrogating the defendant indicating his belief
that the victim was truthful. 313 Or at 79-80. On review,
the defendant argued that the detective’s testimony was
an impermissible comment on the victim’s credibility and
should have been excluded. Id. at 81. This court recited the
general rule from Middleton—i.e., that one witness may not
give an opinion as to whether he or she believes that another
witness is telling the truth—and observed that “the point
of Middleton was only to preclude testimony by one trial
witness about whether another trial witness is telling the
truth[.]” Id. at 82 (emphases in original). This court then
noted that “a relevant out-of-court statement, recounted at
trial, generally may not be excluded merely because it is
phrased in the form of an opinion.” Odoms, 313 Or at 83.
From those observations, this court concluded that the trial
court had not erred in overruling the defendant’s “improper
opinion evidence” objection to the detective’s statements. Id.
at 84.
Justice Unis specially concurred, offering a differ-
ent explanation for this court’s holding. In his view, an out-
of-court opinion rendered as to another witness’s credibility
is susceptible to an improper opinion objection “only if it is
offered as opinion testimony, i.e., for the truth of the judg-
ment or belief it expresses.” Id. at 85 (Unis, J., specially con-
curring). Applying that rule to the facts of Odoms, Justice
Unis concluded that the detective’s testimony had not been
offered for its truth; instead, it had been offered to show
its effect on the defendant’s state of mind—specifically,
how and why the defendant had changed the story he had
given the detective over the course of three interviews. Id.Because the detective’s testimony had not been offered for
its truth, Justice Unis concluded that it was not susceptible
to an improper opinion objection. Id.In Charboneau, a witness entered into a plea agree-
ment with the state in exchange for his testimony at the
defendant’s trial. At trial, the court admitted portions of
the plea agreement that contained the state’s opinion that
it found the witness to be credible and a provision that the
Cite as 360 Or 323 (2016) 333
agreement would be “null and void” if the witness did not
testify truthfully. 323 Or at 42-43. The defendant appealed
the trial court’s admission of those portions of the plea
agreement, arguing that they contained improper com-
ments on the credibility of the state’s witness. On review,
this court noted that the case did not present the usual sit-
uation in which one trial witness offers an opinion about
the truthfulness of another witness. Id. at 47. Nevertheless,
the court determined that the trial court’s admission of the
state’s credibility opinion by means of the plea agreement
presented an analogous risk. Id. The court noted that the
state could not have called the investigating detective to
testify directly about whether he believed the witness to be
truthful. For the same reasons, the court concluded that the
state could not introduce a credibility opinion by means of
an exhibit. Accordingly, this court held that “[a] witness’s
testimony or an exhibit may not, explicitly and directly, con-
tain an opinion as to a trial witness’s credibility.” Id. at 48(emphasis added).
We recognize that this court’s holdings in Odoms
and Charboneau appear to be in conflict. Whereas
Charboneau stands for the proposition that a comment on
a witness’s credibility may not be introduced through either
trial testimony or a trial exhibit, Odoms indicates that the
vouching rule does not apply to credibility opinions rendered
outside of court. See 313 Or at 82-83 (holding that trial
court did not err in overruling defendant’s vouching objec-
tion to detective’s out-of-court statements; noting that “the
point of Middleton was only to preclude testimony by one
trial witness about whether another trial witness is telling
the truth”). Indeed, the Court of Appeals relied on Odoms
to draw such a categorical distinction between in-court and
out-of-court credibility opinions, holding that the vouching
rule does not apply to the latter. That principle is not an
accurate statement of Oregon law, however. Rather, as this
court has previously recognized, an out-of-court statement
about the credibility of a trial witness may become the func-
tional equivalent of trial testimony once that statement is
admitted into evidence at trial. See, e.g., Charboneau, 323
Or at 47-48 (portion of plea agreement containing prose-
cutor’s opinion that state’s witness was credible, admitted
334 State v. Chandler
into evidence, constituted improper comment on credibility
of state’s witness); Snider, 296 Or at 172 (provision of plea
agreement requiring state’s witness to take and pass poly-
graph examination to verify the witness’s trial testimony,
admitted into evidence, constituted improper credibility
comment).
We therefore disavow the reasoning of the major-
ity in Odoms and expressly recognize that the bounds of
the vouching rule are not defined by the setting in which
the credibility comment was uttered. Instead, we adopt the
following rule, originally articulated by Justice Unis in his
concurrence in Odoms: When a person makes an out-of-
court statement about the credibility of a witness or non-
witness complainant, that statement is subject to the cat-
egorical prohibition against vouching evidence only if the
statement is offered for the truth of the credibility opinion
that it expresses. Put another way, a court does not err in
admitting an out-of-court statement as to the credibility
of a witness or nonwitness complainant if the statement is
offered for a relevant, non-opinion purpose.4
As the state acknowledges, and as we will explain,
that does not mean that such a statement is admissible.
Even if an out-of-court statement is not subject to a vouch-
ing objection, the evidence still must be relevant under OEC
401, and it cannot be unduly prejudicial under OEC 403.
In addition, under appropriate circumstances, a defendant
may request a limiting instruction under OEC 105.
Proceeding to the facts of this case, we conclude
that the challenged portions of the interview between
Gates and defendant were not admitted for the truth of
the credibility opinions that they contained and therefore
were not categorically inadmissible. We note, initially, that
the record is somewhat sparse as to the purpose for which
4
The principle articulated by Justice Unis also harmonizes any apparent
conflict between the holdings in Odoms and Charboneau. Whereas the challenged
evidence in Charboneau was admitted to bolster the credibility of a witness, the
challenged evidence in Odoms was admitted to show its effect on the defendant’s
state of mind. See Charboneau, 323 Or at 42 (plea agreement offered to rehabili-
tate state’s witness after his credibility had been attacked on cross-examination);
Odoms, 313 Or at 85 (Unis, J., specially concurring) (detective’s statement offered
to show how and why the defendant had changed his story).
Cite as 360 Or 323 (2016) 335
the challenged portions of the interview were offered. For
example, neither defendant’s motion to redact nor the pros-
ecutor’s response thereto addressed the purpose for which
Gates’s statements would be offered at trial. We find signif-
icant, however, defendant’s arguments and the trial court’s
ruling on a related issue. In defendant’s motion to redact,
he argued, in addition to his argument under the vouching
rule, that Gates’s unsworn, out-of-court statements during
the videotaped interview should be excluded as inadmissible
hearsay. The trial court disagreed, ruling: “As far as [Gates]
making statements that some witnesses said this and some
witnesses said that, which is, of course, somewhat hearsay,
but I think[,] * * * taken in the context of the interrogation[,]
the intent is to try to get the defendant’s response.” In other
words, the trial court concluded that the probative value of
Gates’s statements lay not in their truth, but rather in the
context that they provided for defendant’s responses.
The record at trial supports that conclusion. At
trial, the prosecutor did not use Gates’s statements from
the videotaped interview to bolster the victims’ credibility
or to undermine defendant’s. Indeed, when the prosecutor
questioned Gates on the stand, he did not mention any of
the credibility assessments that she had made during the
interview. We therefore agree with the trial court’s assess-
ment that Gates’s credibility statements made during the
interview were admitted not to prove that defendant was
untruthful or that the victims were truthful, but rather as
context for the responses that those statements elicited from
defendant.
In summary, we conclude that a person’s out-of-
court statement about the credibility of a witness or nonwit-
ness complainant is not categorically inadmissible at trial
if it is offered for a relevant, non-opinion purpose. In this
case, Gates’s out-of-court comments indicating her belief
that defendant was lying and that the victims were telling
the truth were not offered to prove the truth of those beliefs.
Rather, the trial court understood that they were going to
be offered to provide relevant context for the statements
that defendant made throughout the interview, a viewpoint
that defendant did not challenge. We therefore conclude that
336 State v. Chandler
the trial court did not err in denying defendant’s motion to
redact on the ground that Gates’s statements constituted
prohibited vouching.
B.  OEC 403
As explained, the fact that statements are not cate-
gorically prohibited under the vouching rule does not mean
that they are necessarily admissible. In appropriate circum-
stances, such statements may be excluded because they do
not meet the requirements of OEC 401 or OEC 403 or other
evidentiary rules. Accordingly, we must determine whether
defendant made a preserved objection to the admissibility of
the contested statements in addition to his argument that
the statements were categorically inadmissible under the
vouching rule.
In defendant’s motion to redact, he argued that cer-
tain portions of the videotaped interview with Gates should
be redacted, for a variety of reasons. The entirety of his
argument under the vouching rule was as follows:
“Throughout the interview, Detective Gates invites
the defendant to offer his opinion about the character or
credibility of other witnesses. She baits the defendant to
label other witnesses as ‘liars’. The detective also offers her
own frequent assessment of whether a particular witness’
story is credible. In at least one exchange, she improperly
vouched for the credibility of [A] and [D] by referencing the
out-of-court statements of unidentified third persons who
believe the children are ‘not liars’ who ‘make up false accu-
sations about people’ and who have no allegations of abuse
of any kind in the past. These exchanges and comments are
inadmissible.
“ ‘The law applicable to this issue is well understood.
This court has long held that one witness may not give an
opinion on whether he or she believes another witness is
telling the truth.’ State v. Lupoli, 348 Or 346 (2010). The
Oregon Supreme Court has repeatedly condemned the use
of even isolated incidents of vouching testimony. State v.
Milbradt, 305 Or 621, 629, 632, 756 P2d 620, at 624, 626
(1988)[  (n]o witness ‘may render an opinion on whether
a witness is credible in any trial conducted in this state[’)
(italics in original]).”
Cite as 360 Or 323 (2016) 337
Defendant also attached an addendum to his motion that
identified the specific portions of the interview to which he
objected and the bases for his objections. In that addendum,
defendant included citations to OEC 403, among other evi-
dentiary rules. Defendant did not, however, develop any
argument in the addendum. As noted, the Court of Appeals
concluded that defendant’s bare citation to OEC 403, absent
any developed argument under that rule, was insufficient to
preserve his argument under the rule. We agree with that
conclusion.
On review, however, defendant contends that, even
if his citation to OEC 403 in the addendum to his motion
to redact was insufficient to preserve an OEC 403 argu-
ment, he nevertheless preserved that argument by virtue
of the objection that he raised under the vouching rule. In
his view, this court’s prior cases—in particular, Brown and
Southard—support the proposition that the vouching rule
encompasses a requirement that a trial court engage in
OEC 403 balancing.5
We are not persuaded that a party’s vouching objec-
tion is sufficient to alert a trial court that the party also
seeks a balancing of the probative value of the challenged evi-
dence against the prejudicial effect of that evidence. The two
cases that defendant cites for that proposition, Brown and
Southard, were not, as defendant characterizes them, cases
in which this court engaged in OEC 403 balancing as part of
a vouching analysis. Rather, those cases involved the admis-
sibility of scientific evidence—an analysis that includes, as
one component, a requirement that the prejudicial effect of
the evidence not outweigh its probative value under OEC
403. See Southard, 347 Or at 133 (to be admissible, scien-
tific evidence must (1) be relevant under OEC 401; (2) pos-
sess sufficient indicia of scientific validity and be helpful to
5
The state contends that defendant failed to renew his argument under OEC
403 on review and that he therefore abandoned that argument. During oral argu-
ment before this court, however, defendant clearly renewed his contention that
Gates’s statements should have been excluded under OEC 403. He also argued
generally in his brief on the merits that Gates’s statements should have been
excluded based on the risk that the jury would place undue weight on those state-
ments and abdicate its role in assessing witness credibility. Although it is a close
call, under the circumstances, we conclude that defendant did not abandon his
argument under that rule.
338 State v. Chandler
jury under OEC 702; and (3) be more probative than prej-
udicial under OEC 403). In conducting that balancing test,
this court concluded that the scientific evidence at issue in
each case posed a risk that jurors might be prejudiced by
a misplaced “aura of reliability” surrounding the evidence,
thereby leading the jurors to abdicate their traditional role
of assessing the credibility of witnesses. See Brown, 297 Or
at 438-41 (admissibility of polygraph evidence); Southard,
347 Or at 141 (admissibility of medical diagnosis of sexual
abuse). Accordingly, this court concluded in each case that
the prejudicial effect of the evidence at issue outweighed
its probative value under OEC 403. Brown, 297 Or at 442;
Southard, 347 Or at 141. Contrary to defendant’s contention,
this court’s OEC 403 balancing in those cases did not arise
out of a vouching analysis.
In addition to the lack of support in this court’s case
law for the proposition that OEC 403 balancing is encom-
passed within the vouching rule, there are prudential rea-
sons to not conflate those two evidentiary rules. From a
preservation perspective, a vouching objection and an OEC
403 objection request different actions from the trial court.
When a party objects to evidence as an improper comment
on the credibility of a witness, the trial court must deter-
mine only whether the vouching rule applies to the chal-
lenged evidence; if it does, then the evidence is categorically
inadmissible. See, e.g., Middleton, 294 Or at 438 (reversible
error to admit opinion testimony from one witness on cred-
ibility of another witness). In contrast, when a party raises
an objection under OEC 403, the trial court must engage in
the balancing test described above to determine whether the
otherwise admissible evidence should be excluded due to its
prejudicial effect. Given the different nature of the actions
that those two evidentiary objections require of a trial court,
we conclude that a party’s objection under the vouching rule
is insufficient, by itself, to alert a trial court that the party
also seeks OEC 403 balancing. Rather, a party must spe-
cifically raise an objection under OEC 403 to preserve an
argument under that rule.
In this case, defendant failed to raise a specific
argument that Gates’s statements about the credibility of
defendant and the victims should have been excluded as
Cite as 360 Or 323 (2016) 339
unfairly prejudicial under OEC 403. We therefore conclude
that his argument under that rule is unpreserved.6 Had
defendant specifically requested that the trial court weigh
the probative value of Gates’s statements against their prej-
udicial effect, the court’s ruling as to the admissibility of
those statements might well have been different. We do not
disagree that such statements are troubling. Indeed, Gates’s
claim of expertise in determining truthfulness posed the
risk that this court identified in Brown—i.e., that jurors
might place undue weight on the “aura of reliability” created
by such a claim. See Brown, 297 Or at 439 (in determin-
ing risk of unfair prejudice under OEC 403, courts in some
cases must “evaluate the degree to which the trier of fact
may be overly impressed or prejudiced by a perhaps mis-
placed aura of reliability or validity of the evidence, thereby
leading the trier of fact to abdicate its role of critical assess-
ment”). The proper procedure for seeking the exclusion of
such statements, however, is to raise an objection under
OEC 403, thereby triggering the trial court’s duty to weigh
those statements’ prejudicial effect against their probative
value.7
III. CONCLUSION
We conclude that the general rule that one witness
may not comment on the credibility of another witness does
not apply to Gates’s statements, because those statements
were not offered for the truth of the credibility opinions that
they expressed. Rather, Gates’s statements were offered for
the relevant, non-opinion purpose of providing context for
the statements that defendant made during the interview.
Accordingly, the trial court did not err in denying defendant’s
motion to redact on the ground that Gates’s statements con-
stituted impermissible vouching. We further conclude that
defendant failed to preserve his remaining argument that
6
Defendant has not requested plain-error review in this court or the Court
of Appeals; we therefore do not address whether such review is warranted.
7
As noted, a criminal defendant may have other evidentiary rules at his or
her disposal for challenging this type of evidence. For example, a defendant could
raise an objection under OEC 401 to the logical relevancy of statements such as
the ones that Gates made during the interview. A defendant also may seek a lim-
iting instruction under OEC 105.
340 State v. Chandler
Gates’s statements should have been excluded as unfairly
prejudicial under OEC 403.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.