S055463, Opinion — State v. Southard

127
Argued and submitted September 17, 2008, decision of Court of Appeals reversed;
judgment of circuit court reversed, and case remanded to circuit court for
further proceedings October 1, 2009
STATE OF OREGON,
Respondent on Review,
v,
KERMIT EUGENE SOUTHARD,
Petitioner on Review.
(CC 04FE0347ST; CAA128253; SC S055463)
218 P3d 104

128 	State v. Southard
CJS, Criminal Law § 1063.
En Banc
On review from the Court of Appeals.*
Anne Fujita Munsey, Senior Deputy Public Defender,
Salem, argued the cause and filed the brief for petitioner on
review. With her on the brief was Peter Gartlan, Chief
Defender, Office of Public Defense Services.
Anna M. 	Joyce, 	Assistant Attorney 	General, 	Salem,
argued the cause and filed the brief for respondent on review.
With her on the brief were Hardy Myers, Attorney General,
and Mary H. Williams, Solicitor General.
KISTLER,J.
The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is 	reversed, 	and 	the case is
remanded to the circuit court for further proceedings.
Appeal from Deschutes County Circuit Court, Stephen N. Tiktin, Judge. 214
Or App 292, 164 P3d 351 (2007).

Cite as 347 Or 	129
KISTLER,J.
The question in this case is whether a medical diag-
nosis of child sexual abuse is admissible scientific evidence.
The trial court ruled that it is. After considering testimony
regarding that diagnosis, as well as other evidence that
defendant had abused his girlfriend's two children, a jury
convicted defendant of three counts of sodomy. The Court of
Appeals affirmed the trial court's judgment without opinion.
State v. Southard, 214 Or App 292, 164 P3d 351 (2007). We
allowed defendant's petition for review and now reverse the
Court of Appeals decision and the trial court's judgment.
Defendant moved in with his girlfriend, her five-
year-old son, and her three-year-old daughter. 1 Afterwards,
defendant's girlfriend (mother) was incarcerated for possess-
ing controlled substances, and the state placed her children
initially with their maternal grandmother and later with a
foster mother. Both mother and the foster mother noticed
that the then six-year-old boy began engaging in actions that
concerned them. They reported
"that [the boy] had been caught on several occasions with
his pants pulled down and trying to get other kids to kiss
his penis. Foster Mom described multiple incidents of [his]
touching other kids on their bare bottoms. Additionally,
[he] would frequently expose himself to adults and children
in and out of the home. Mom and Foster Mom shared that
[he] frequently grabs his groin area stating that his balls
are sticking. Mom and Foster Mom feel this is a habit that
has developed for [him]."
While visiting his maternal grandmother, the boy
disclosed that defendant made him suck defendant's penis
and that defendant had made the boy's younger sister do the
same thing. After hearing that information, grandmother
spoke 	with 	the 	children's 	mother, 	who 	in 	turn 	called
the foster mother. She recommended that mother call the
Department of Human 	Services 	and 	the 	police. 	Those
1 On review, defendant challenges the trial court's pretrial ruling that a diag-
nosis of sexual abuse is admissible, and we take the facts from the evidence
brought out at the pretrial hearing. Most of those facts are not disputed. To the
extent that a dispute exists, we state the facts consistently with the trial court's
ruling.

130 	State v. Southard
agencies referred both children to the KIDS Center, a nation-
ally accredited medical facility in Deschutes County that
examines children to determine whether they have been sex-
ually or physically abused.
In determining whether abuse has occurred, the
KIDS Center follows statewide interviewing and medical
procedures as well as guidelines established by the American
Professional Society on the Abuse of Children. Specifically, a
team consisting of a social worker and a physician examine
each child who is referred to the center. The social worker
receives information from the referring agency and also takes
a history from the child's parents or caregiver. After review-
ing that history, the social worker conducts a videotaped
interview with the child, and the physician conducts a medi-
cal examination to see if there is physical evidence of abuse.
In conducting the interview and the medical exami-
nation, the social worker and physician ask open-ended ques-
tions to avoid suggesting an answer. They also tell the child
at the beginning of the interview that "it's okay to correct us,
it's okay to say, 'I don't know,' it's okay to say, 'I don't remem-
ber.'" The center follows that protocol because, "[o]therwise,
kids won't do that, and they'll acquiesce to possibly what the
adult would suggest." The interview is videotaped and peer-
reviewed to ensure that the interviewer is asking appropri-
ate, nonsuggestive questions and also to ensure that the
interviewer is not "using certain gestures or head motions
that [suggest a particular] answer." Based on the child's his-
tory, the interview, and the medical examination, the social
worker and the physician consult with each other, and the
physician diagnoses whether sexual abuse has occurred.
Another member of the KIDS Center then reviews their data
and conclusion. In some cases, the center consults with other
state and national organizations in making a diagnosis.
In this case, the doctor who examined the boy diag-
nosed him as having been sexually abused. The doctor who
examined the girl was unable to diagnose whether she also
had been sexually abused. In the course of reaching those
conclusions, a social worker spoke with the boy's mother and
foster mother, who reported the behaviors (noted above) that
had concerned them. The social worker also interviewed the

Cite as
boy, who told her that defendant "made [him] suck on [defen-
dant's] private." The boy described other details about the
sexual activity and said that "it would stop when his mom
came home." He "described seeing [his sister] sucking on
[defendant's] private and recalled that [defendant] 'peed on
[his sister].'" He added that his sister "sucked on [defen-
dant's] private 'a lot more times more than I did, because he
told her to.' " The interviewer spoke with the girl, who denied
that any sexual contact had occurred.
A physician then conducted medical examinations of
each child, which did not reveal any physical evidence of sex-
ual abuse. Dr. Largent, the director of the KIDS Center, later
testified that the absence of physical evidence was not sur-
prising. She explained that the type of sexual contact that the
boy reported "doesn't leave any physical marks most of the
time, nothing that we [can] see." The social worker and phy-
sician accordingly considered the boy's statements to them,
as well as the history that they had received from the boy's
mother and foster mother, in determining whether sexual
abuse had occurred. In deciding whether to credit the boy's
reports of abuse, they considered whether the boy had used
age-appropriate terms to describe the abuse, whether he had
provided specific details, and whether the events that he had
described were consistent with other historical facts. They
also considered whether the behaviors that the mother and
foster mother had reported were consistent with the reported
abuse. Having considered those factors, the physician diag-
nosed the boy as having been sexually abused.
The state charged defendant with two counts of sod-
omy regarding the boy and one count of sodomy regarding the
girl. Before trial, the defendant filed a motion in limine to
preclude the state from introducing "any diagnosis of 'sex
abuse' on the groun[d] that such evidence is 'scientific evi-
dence' under OEC 702 and must be subject to the founda-
tional requirements for such evidence." The trial court held a
pretrial hearing to resolve defendant's motion. In addition to
the evidence set out above, the state offered evidence at the
pretrial hearing that a diagnosis of sexual abuse is generally
accepted within the medical community, that there are
numerous published, peer-reviewed studies verifying the
techniques that the KIDS Center uses to elicit and evaluate

State v.
the information, and that the KIDS Center follows estab-
lished 	guidelines in 	evaluating the 	information 	that 	it
receives.
After considering that evidence, the trial court ruled
that the diagnosis of sexual abuse was admissible. At trial, a
physician from the KIDS Center testified that, after consult-
ing with the social worker who had interviewed the boy and
the director of the KIDS Center, she had diagnosed the boy as
having been sexually abused. The state also introduced other
evidence that defendant had abused the children, and the
jury found him guilty of three counts of first-degree sodomy
(two counts regarding the boy and one count regarding the
girl). The Court of Appeals affirmed the resulting judgment
without opinion. We allowed defendant's petition for review
to consider whether, under the circumstances presented
here, a diagnosis of sexual abuse is admissible scientific
evidence.
On review, both parties agree that a doctor's diag-
nosis of child sexual abuse is scientific evidence. Because the
diagnosis "possesses the increased potential to influence the
trier of fact as [a] scientific assertion[ ],"the scientific princi-
ples on which the diagnosis rests must meet a minimum level
of scientific validity for the diagnosis to be admissible. State
v. Marrington, 335 Or 555, 561, 73 P3d 911 (2003). The par-
ties disagree, however, whether the diagnosis in this case
meets that minimum level. Defendant argues that, without
physical evidence of abuse, a diagnosis of child sexual abuse
is too unreliable and not sufficiently verifiable to be consid-
ered scientifically valid. 2 The state responds that doctors fre-
quently make diagnoses based solely on the history that a
patient provides and that the scientific principles on which
the diagnosis in this case rests are well established.
The parties' debate invokes familiar principles. Over
the past 25 years, this court has considered, in a series of
cases, when scientific evidence will be admissible in both civil
and criminal proceedings. See, e.g., Marcum v. Adventist
2 Defendant does not argue that sexual abuse is not a condition recognized
within the medical community, nor does he argue that doctors do not diagnose and
treat that condition. Rather, he acknowledges that, if there were physical evidence
of abuse, a doctor could testify regarding his or her diagnosis of sexual abuse.

Cite as 347 Or 127 	133
Health System/West, 345 Or 237, 193 P3d 1 (2008);Jennings
v. Baxter Healthcare Corp., 331 Or 285, 14 P3d 596 (2000);
State v. Brown, 297 Or 404, 687 P2d 751 (1984). To be admis-
sible, scientific evidence must meet three criteria: It must be
relevant, OEC 401; it must possess sufficient indicia of sci-
entific validity and be helpful to the jury, OEC 702; and its
prejudicial effect must not outweigh its probative value, OEC
403. Marcum, 345 Or at 243; Jennings, 331 Or at 301.
Much of the focus in our cases has been on the second
step in the analysis-determining when scientific evidence
possesses sufficient indicia of scientific validity to be admis-
sible under OEC 702:3 And we think that, logically, that is
the first question that we must answer in this case. If the
diagnosis possesses sufficient indicia of scientific validity to
be probative and thus admissible, then there can be little
doubt that the diagnosis is relevant here; the state charged
defendant with two counts of sodomy regarding the boy, and
the diagnosis makes it more likely that the charged crimes
had occurred. See State v. Cox, 337 Or 477, 485, 98 P3d 1103
(2004) ("Evidence is relevant if it increases or decreases, even
slightly, the probability of the existence of any material fact
in issue."). Similarly, we cannot determine, under OEC 403,
whether the probative value of the doctor's diagnosis is sub-
stantially outweighed by the risk of unfair prejudice without
first determining the validity of the diagnosis, which bears on
its probative value. See Brown, 297 Or at 438 (following that
sequence).
Accordingly, we begin with the question whether the
evidence possesses sufficient scientific validity to be admis-
sible, and we base our decision on the record that the parties
developed below. In Brown, this court rejected the notion
that general acceptance within the relevant scientific com-
munity is the sole criterion for determining whether scien-
tific evidence is admissible. 297 Or at 416. Rather, general
acceptance is only one of several factors that bear on the
3 OEC 702 provides:
'•If scientific, technical or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training or education
may testify thereto in the form of an opinion or otherwise."

134
admissibility of scientific evidence. See id. at 417 & n 5 (list-
ing seven primary and 11 additional factors); 4 State v. O'Key,
321 Or 285, 306, 899 P2d 663 (1995) (adding four factors set
out in Daubert v. Merrill Dow Pharmaceuticals, 590 US 579,
113 S Ct 2786, 125 L Ed 2d 469 (1993)). 5
Not all of the factors that the court identified in
Brown and O'Key will necessarily apply in a given case, nor
has the court required that all or even a majority of the appli-
cable factors be satisfied for evidence to be admissible. See
Marcum, 345 Or at 248 ("[T]he basis for establishing the sci-
entific validity of a differential diagnosis will vary depending
on the type of injury."); Jennings, 331 Or at 306-09 (ruling
that a differential diagnosis that ruptured silicone implants
caused the plaintiff's neurological disorder was admissible
even though the diagnosis did not satisfy several listed fac-
tors). As with many multi-factor tests, the answers that the
Brown analysis has produced have tended to be case specific.
In undertaking that inquiry in this case, we note
that a diagnosis of child sex abuse differs from other medical
diagnoses. Most medical diagnoses provide jurors with infor-
mation that is beyond their common experience; the diagno-
ses identify the occurrence of a complex medical condition,
determine its cause, or predict the future resolution of the
condition. See Marcum, 345 Or at 245-46 (diagnosis that gad-
olinium exposure caused the plaintiff's vasospastic disorder);
Jennings, 331 Or at 309-10 (diagnosis that ruptured silicone
breast implants caused the plaintiff's neurological disorder).
A diagnosis of child sex abuse, however, determines whether
conduct (an act of sexual abuse by another person) has
occurred; the conduct is not complicated, and the ability to
determine its occurrence often is a matter within a lay per-
son's competence. In this case, for example, if a lay person
4 The seven primary factors listed in Brown are: (1) the technique's general
acceptance in the field; (2) the expert's qualifications and stature; (3) the use that
has been made of the technique; (4) the potential rate of error; (5) the existence of
specialized literature; (6) the novelty of the invention; and (7) the extent to which
the technique relies on the subjective interpretation of the expert. 297 Or at 417.
5 The four factors listed in O'Key overlap, to some degree, with the seven fac-
tors set out in Brown. They are: (1) whether the theory or technique can and has
been tested; (2) whether the theory or technique has been subject to peer review;
(3) the known or potential rate of error; and (4) the degree of acceptance in the rel-
evant scientific community. 321 Or at 303-04.

Cite as 347Or127
were to credit the boy's statements that defendant made him
and his sister engage in oral sex, then it follows that the chil-
dren were sexually abused. It also follows that the doctor's
ultimate conclusion in this case-that sexual abuse had
occurred-did not turn on an abstruse matter of science;
rather, it turned primarily on the sort of credibility determi-
nation that lay jurors ordinarily make. 6
In determining whether the diagnosis possesses suf-
ficient indicia of scientific validity to be admissible, we begin
by identifying the methodology that the KIDS Center used to
make its diagnosis. See Jennings, 331 Or at 305 (explaining
that, in determining whether a doctor's opinion regarding
causation was admissible scientific evidence, "we focus on
[the doctor's] methodology, not on his conclusions"). As noted,
the KIDS Center uses a standardized three-part process to
diagnose child sex abuse. First, the KIDS Center takes the
child's history from the parent or caregiver, other family
members, and medical documents. Second, the center con-
ducts a videotaped interview of the child, followed by a phys-
ical exam. The primary purpose of the physical exam is to
find physical signs of abuse, but the doctor continues to ask
questions of the child during the exam. Finally, after com-
pleting the interviews and processing any lab results, the
doctor and the social worker make a diagnosis as a team
using guidelines created by the center and other national
researchers.
Taking a history from family members or caregivers
is neither novel nor unusual. Gathering a patient's history
from those sources is a standard feature of medicine relied
upon by doctors to diagnose a wide variety of conditions. To
be sure, the inferences that an expert draws from that history
6 We recognize that, in diagnosing sexual abuse, a doctor may draw on subsid-
iary principles from the medical and social sciences. In this case, for example, the
doctor relied on the way that children typically express themselves to determine
whether the boy had been coached or was using his own words to describe his expe-
rience. She also noted a strong correlation between the boy's reported behaviors
and sexual abuse. Finally, she noted that the fact that the boy had not reported the
abuse immediately did not necessarily mean that he had not been abused. Defen-
dant did not challenge at trial the validity of those subsidiary principles; rather, he
aimed his attack solely at the diagnosis itself-the doctor's ultimate conclusion
that the boy had been sexually abused. We limit our discussion to the testimony
that defendant challenged.

State v. Southard
(and the principles that the expert uses to draw those infer-
ences) may be subject to challenge. In this case, the boy's his-
tory disclosed instances of sexualized behaviors, and the doc-
tor explained that research had shown a strong correlation
between the behavior that the boy exhibited and sexual
abuse. 7 Defendant, however, did not challenge at trial the
research on which the doctor relied to identify that correla-
tion, and we see nothing in the first step in the methodology
that the KIDS Center used (taking a patient's history) that
would cause us to question the scientific validity of its
diagnosis.
The second procedure that the KIDS Center used-
interviewing the patient-is also a standard component of a
medical diagnosis. Interviewing a patient is often the only
way for psychologists, psychiatrists, and other doctors to
gather sufficient information to diagnose (and treat) a vari-
ety of conditions. Largent explained that interviewing chil-
dren presents special problems, and the KIDS Center has
several procedures in place to enhance the accuracy of those
interviews. All the interviewers follow the Oregon Interview-
ing Guidelines, a statewide guideline for questioning chil-
dren about abuse. 8 The guidelines that the interviewers
follow are based on generally accepted techniques for inter-
viewing children and have been the subject of extensive peer-
reviewed literature.
The KIDS Center also conducts a medical examina-
tion to look for evidence that either confirms the reported
abuse or provides alternative explanations for certain physi-
cal phenomena. In this case, the results of the medical exam-
ination were neutral. The examination revealed no physical
evidence of abuse; however, as Largent explained, the type
of abuse that the boy reported is unlikely to leave any physi-
cal evidence-a proposition that defendant also does not
challenge. We conclude that, in interviewing the patient and
7 Largent was careful to say that the behaviors that the boy exhibited (asking
other children to "kiss'" his penis and the like) did not necessarily establish that the
boy had been sexually abused. Rather, she testified only that research showed a
strong correlation between sexual abuse and those types of behaviors.
8 The KIDS Center also uses the Oregon Medical Guidelines and a forensic
analysis guide designed by the American Professional Society on the Abuse of
Children.

Cite as 347 Or 127 	137
conducting the 	medical 	examination, 	the 	KIDS 	Center
employs valid, scientifically accepted methodologies.
Finally, the KIDS Center seeks to determine, based
on the child's history, the interview, and the medical exami-
nation, whether the child has been sexually abused. Because
there was no physical evidence of sexual abuse in this case,
the KIDS Center based its diagnosis on (1) the boy's reported
behaviors and (2) its determination that the boy's reports of
sexual abuse were credible. As noted, defendant did not chal-
lenge at trial the scientific validity of the research showing a
correlation between sexual abuse and the types of behaviors
that the boy exhibited. And the kinds of considerations that
the KIDS Center used to determine whether to credit the
boy's statements are standard fare in assessing credibility.
Largent explained that, in evaluating the boy's credibility,
the KIDS Center considered whether the words that the boy
used to describe the abuse were appropriate for a child his
age, whether the reports were detailed, whether the details
were consistent with other historical facts, and the circum-
stances under which the boy first reported the abuse. In eval-
uating the data that it gathered, the KIDS Center followed
nationally accepted protocols for diagnosing child abuse.
Considering the totality of the procedures that the
KIDS Center used and based on the record developed in this
case, we conclude preliminarily that the KIDS Center's diag-
nosis has sufficient indicia of scientific validity to be admis-
sible. The experts were all qualified, the techniques used are
generally accepted, the procedures rely on specialized litera-
ture in the field, and the procedures used are not novel. Fur-
thermore, the KIDS Center follows numerous safeguards to
enhance objectivity and increase the accuracy of the final
diagnosis.
Defendant, for his part, recognizes that a diagnosis
of child sexual abuse is admissible scientific evidence when
physical evidence corroborates the doctor's conclusion. He
argues, however, that, without physical evidence of abuse, a
diagnosis of child sexual abuse is too unreliable to be admis-
sible. Defendant's argument proves too much. If physical evi-
dence were a necessary prerequisite of a scientifically valid
medical diagnosis, trial courts would be hard pressed to

138 	State v. Southard
admit any diagnosis of mental capacity, mental suffering, or
even illnesses like migraines that have no visible outward
manifestation. Indeed, the rule that defendant advances
would preclude introducing some of the most traditional and
important forms of scientific evidence in criminal trials, such
as expert testimony to prove insanity. The limitation that
defendant urges would impose an arbitrary restriction on the
admission of expert medical testimony.
Defendant argues additionally that the lack of "fal-
sifiability" of the studies relied upon by the doctors at the
KIDS Center makes the diagnosis invalid. The thrust of
defendant's argument is that, without controlled experimen-
tation and the elimination of independent variables to verify
the accuracy of results, the conclusions that the national
studies have drawn are not scientifically valid. Ethical con-
cerns, however, counsel against the sort of controlled experi-
mentation that defendant would require as a basis for admit-
ting a medical diagnosis of sexual abuse, see State v. Perry,
347 Or 110, 114 n 3, 218 P3d 95 (2009) (so stating), and the
absence of this factor does not automatically make a scientific
conclusion invalid. See id. at 124 (recognizing that proposi-
tion); Brown, 297 Or at 428 (holding that polygraph results
were admissible under OEC 401 and OEC 702 even though
their "falsifiability" could not be tested). 9 Where science can-
not ethically provide such an indicator, we are required to
look more closely at other factors that offset the unavail-
ability of that indicator. See Perry, 34 7 Or at 124 (stating
proposition).
After considering the methodologies that the KIDS
Center used to diagnose child sexual abuse, we conclude that
9 The court explained in Brown that the " 'accuracy of the [p]olygraph tech-
nique [cannot) be determined in a psychology laboratory setting or by the use of fic-
titious crimes under other testing circumstances. This limitation prevails for the
simple reason that it is practically impossible to simulate conditions comparable to
those involved in actual case situations.'" 297 Or at 428 (quoting John E. Reid &
Fred Edward Inbau, Truth and Deception: The Polygraph (Lie-Detector Technique)
303-04 (2d ed 1977)). Even though the accuracy of polygraph results could not be
verified, the court held that those results still possessed sufficient. indicia of scien-
tific validity to be admissible under OEC 401 and OEC 702. Id. at 438. The prob-
lem, as the court explained, was that the potential for jurors to overvalue the evi-
dence outweighed its probative value, making the evidence inadmissible under
OEC 403. Id. at 442.

Cite as 347 Or 127
the diagnosis possesses sufficient indicia of scientific validity
to be admissible. 10 Put differently, we cannot say that, based
on this record, a diagnosis of child sexual abuse is ''bad sci-
ence" that should be excluded automatically as scientifically
invalid. See O'Key, 321 Or at 306 ("[A] trial court should
exclude 'bad science' in order to control the flow of confusing,
misleading, erroneous, prejudicial, or useless information to
the trier of fact.").
Although we agree with the trial court that the diag-
nosis is scientifically valid, scientific validity is not the end of
the inquiry. To be admissible, the evidence also must be rel-
evant, and its probative value must not be substantially out-
weighed by the danger of unfair prejudice. Marcum, 345 Or
at 243. We turn to those issues. As noted above, the doctor's
diagnosis is relevant. Whether sexual abuse has occurred is a
material fact in proving a charge of sodomy, and the doctor's
diagnosis that the boy had been sexually abused increased
the probability of that fact's occurrence. See Cox, 337 Or at
485 (stating standard for relevance). The remaining question
is whether, under OEC 403, the probative value of the diag-
nosis "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." See Brown, 297 Or at 438-39 (restating
the terms of OEC 403).
This court faced a similar issue in Brown. 297 Or at
438-42. It began by explaining that, based on its assessment
of the scientific validity of polygraph evidence, that evidence
had "some probative value." Id. at 438. It then noted that, in
the context of polygraph evidence, the risk of prejudice
stemmed from the fact that "the trier of fact may be overly
impressed or prejudiced by a perhaps misplaced aura of reli-
ability or validity of the evidence, thereby leading the trier of
fact to abdicate its role of critical assessment." Id. at 439.
Among other things, the court noted that the tendency to give
10 Indeed, the nature of the medical diagnosis in this case makes it difficult for
defendant to argue that the diagnosis does not meet a minimum level of scientific
validity; that is, it is difficult to understand why experienced professionals, under
controlled conditions, are incapable of accurately making the same determination
that we expect of a panel oflay jurors to make-namely, whether sexual abuse has
occurred.

140 	State v. Southard
polygraph evidence undue weight could cause jurors to abdi-
cate their traditional role of assessing the credibility of wit-
nesses. Id. at 440-41, 440 n 31. Balancing that and other con-
cerns against the probative value of polygraph evidence, the
court concluded that the reasons for excluding that evidence
far outweighed its probative value. Id. at 442.11
Although the calculus differs slightly between this
case and Brown, we reach the same conclusion that the court
did in Brown. In determining the probative value of the doc-
tor's ultimate conclusion of sexual abuse, we note that her
diagnosis did not tell the jury anything that it was not
equally capable of determining on its own. As noted above,
whether defendant caused the boy to engage in oral sex (and
thus sexually abused him) does not present the sort of com-
plex factual determination that a lay person cannot make as
well as an expert. If the jury credited the boy's reports of oral
sex (which he recounted to his grandmother, the staff at the
KIDS Center, and the jury at trial), then it necessarily fol-
lows that he was sexually abused. And, while the staff at the
KIDS Center are experienced professionals, the criteria that
the staff used to decide whether to credit the boy's testimony
are essentially the same criteria that we expect juries to use
every day in courts across this state to decide whether wit-
nesses are credible. 12 Because the doctor's diagnosis in this
case did not tell the jury anything that it was not equally
capable of determining, the marginal value of the diagnosis
was slight.
The risk of prejudice, however, was great. The fact
that the diagnosis came from a credentialed expert, sur-
rounded with the hallmarks of the scientific method, created
11 This court did not defer to the trial court in determining the admissibility of
scientific evidence under OEC 403. See Brown, 297 Or at 442.
12 To the extent that the doctor employed criteria that went beyond a juror's
common experience, defendant did not object to her explaining those criteria to the
jury. Specifically, defendant did not object to the doctor's testimony regarding how
a child's age and stage of development affects his or her ability to recount experi-
ences, the kinds of words that a child the boy's age typically would use to describe
a sexual experience, or the fact that the boy's delayed reporting did not necessarily
mean that he had not been abused. The jury was thus free to employ those criteria
in making its own assessment of the boy's credibility. The question that this case
presents is whether the doctor's ultimate conclusion of sexual abuse, standing
alone, added anything helpful to the jury's deliberations.

Cite as 34 7 Or 127
a substantial risk that the jury "may be overly impressed or
prejudiced by a perhaps misplaced aura ofreliability or valid-
ity of the evidence[.]" Brown, 297 Or at 439. As in Brown, the
diagnosis is particularly problematic because the diagnosis,
which was based primarily on an assessment of the boy's
credibility, posed the 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. See id. at 440-41
(reasoning that polygraph evidence could effectively take
over the jury's traditional function of judging the credibility
of witnesses). In our view, the risk of prejudice substantially
outweighs the minimal probative value of the diagnosis.
Other jurisdictions have held, in a related context,
that a doctor's diagnosis of sexual abuse is not helpful to the
jury under FRE 702 (or those jurisdictions' counterparts to
that rule) and thus is not admissible. Those courts have con-
cluded that a medical diagnosis on the "ultimate issue of sex-
ual abuse" does not tell the jury anything that it is not capa-
ble of determining without expert assistance. See United
States v. Whitted, 11 F3d 782, 785 (8th Cir 1993) ("Because
jurors are equally capable of considering the evidence and
passing on the ultimate issue of sexual abuse * * *, a doctor's
opinion that sexual abuse has in fact occurred is ordinarily
neither useful to the jury nor admissible."); United States v.
Charley, 189 F3d 1251, 1264-69 (10th Cir 1999) (following
Whitted); State v. !ban C., 275 Conn 624, 639, 881A2d1005
(2005) (a specific diagnosis of child sex abuse did not assist
the jury because "this type of assessment was well within the
jurors' capabilities and understanding and did not require a
separate conclusion from [an expert] that sexual abuse had
taken place"); Atkins v. State, 243 Ga App 489, 496-95, 533
SE2d 152 (2000) (holding that experts cannot opine that
abuse did in fact occur); State v. Batangan, 71Haw552, 558,
799 P2d 48 (1990) ("[C]onclusory opinions that abuse did
occur and that the child victim's report of abuse is truthful
and believable is of no assistance to the jury, and therefore,
should not be admitted.").
As we understand those decisions, they rest on the
proposition that the degree to which the diagnosis advances
the jury's ability to evaluate the evidence is minimal and that

142 	State v. Southard
the risk that the jury will defer to the expert's assessment
outweighs whatever probative value the diagnosis may have.
As Mueller and Kirkpatrick explain,
"Where the issue and subject are ones lay jurors can appre-
ciate and evaluate by applying common knowledge and
good sense, admitting expert testimony seems the wrong
thing to do and may warrant reversal if it is likely to dis-
suade the jury from exercising its own independent judg-
ment or if it effectively takes over the jury's traditional
function to judge the credibility of witnesses."
Christopher B. Mueller & Laird C. Kirkpatrick, 3 Federal
Evidence § 7:9, 810-13 (3d ed 2007) (footnote omitted). In
essence, those courts have balanced the probative value of
the diagnosis against the risk of prejudice and held, as we do,
that the diagnosis is not admissible.
Our holding today is narrow. The only question on
review is whether a diagnosis of"sexual abuse"-i.e., a state-
ment from an expert that, in the expert's opinion, the child
was sexually abused-is admissible in the absence of any
physical evidence of abuse. We hold that where, as here, that
diagnosis does not tell the jury anything that it could not
have determined on its own, the diagnosis is not admissible
under OEC 403. We do not consider, and our decision today
does not resolve, whether any subsidiary principles that
inform that diagnosis are themselves admissible. This court
has recognized that, depending on the foundation and the
purpose for which the testimony is offered, expert testimony
regarding aspects of child sexual abuse with which a lay per-
son ordinarily would not be familiar may be admissible. See
Perry, 347 Or at 126 (evidence that some children who have
been abused may delay disclosing abuse is admissible to dis-
prove a claim that delay in reporting demonstrates that no
abuse occurred); State v. Middleton, 294 Or 427, 440, 657 P2d
1215 (1983) (Roberts, J., concurring) (noting the existence of
well-qualified experts and a significant body of research on
intrafamilial sexual abuse and reasoning that this informa-
tion is not known to the average juror and is thus admissi-
ble). Other courts have recognized that, given a proper foun-
dation, experts may tell jurors the results of their research on
abused children when those results would be helpful to the
jury; however, those same courts have held that an expert's

Cite as 347 Or 127 	143
ultimate conclusion that a child has or has not been sexually
abused is not admissible. See Charley, 189 F3d at 1264-65
(summarizing cases).
We accordingly hold that, in these circumstances,
the trial court erred in admitting the diagnosis of sexual
abuse. The state has not argued that the admission of that
evidence was harmless, and our review of the record confirms
that 	the 	state 	reasonably 	has 	declined 	to 	make 	that
argument.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.