State v. James

                                      717

Argued and submitted January 9, 2018, reversed and remanded March 11, 2020


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                         DAVID JAMES,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      C150903CR; A162523
                                  

    In this criminal appeal, defendant challenges nine convictions for sexual
crimes against two sisters, M and V. The acts of abuse were alleged to have taken
place in 1998 and 2003, when M and V were young children. M and V reported
the acts in 2013 and 2014, after apparently recovering memories of the abuse, and
the charges were brought against defendant shortly thereafter. On appeal, defendant contends, among other things, that the trial court erred by allowing the
prosecutor to read from the Third Edition of the Oregon Interviewing Guidelines
in order to impeach defendant’s expert witness, who testified about the science
of memory. Defendant argues that his expert did not testify or admit that the
Third Edition of the Oregon Interviewing Guidelines was a “reliable authority,”
as required by OEC 706 for it to be used as such, and that the state did not show
by any other means that that publication was a reliable authority. Held: The trial
court erred in overruling defendant’s objection to the cross-examination. The
error was not harmless.
    Reversed and remanded.



    Janelle F. Wipper, Judge.
  Ryan Scott argued the cause and filed the briefs for
appellant.
   Peenesh Shah, Assistant Attorney General, argued the
cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.*
    ORTEGA, P. J.
    Reversed and remanded.
______________
   * Egan, C. J., vice Garrett, J. pro tempore.
718                                          State v. James

        ORTEGA, P. J.

          In this criminal appeal, defendant challenges nine
convictions for sexual crimes against two sisters, M and V,
which were entered after the jury returned nonunanimous verdicts of 10-2. The acts of abuse were alleged to
have taken place in 1998 and 2003, when M and V were
young children. M and V reported the acts in 2013 and 2014,
after apparently recovering memories of the abuse, and the
charges were brought against defendant shortly thereafter.
On appeal, defendant contends, among other things, that
the trial court erred by allowing the prosecutor to read from
the Third Edition of the Oregon Interviewing Guidelines
in order to impeach defendant’s expert witness, who testified about the science of memory. Defendant argues that
his expert did not testify or admit that the third edition of
the Oregon Interviewing Guidelines was a “reliable authority,” as required by OEC 706 for it to be used as such, and
that the state did not show by any other means that that
publication was a reliable authority. As explained below, we
agree, and we also conclude that the trial court’s error was
not harmless. That conclusion obviates the need for us to
address defendant’s other assignments of error, including
the assignment raised in his supplemental brief, in which
he challenges the court’s acceptance of nonunanimous jury
verdicts. Accordingly, we reverse and remand.

         At trial, the state presented evidence that M and V,
who were 21 and 16 years old, respectively, at the time of
trial, had recently recovered memories of abuse by defendant, which, as noted above, they believed had taken place
10 and 15 years before they reported it. Defendant’s theory
of the case was that, although M and V truly remembered
being abused by defendant, those memories were false.

         That theory relied on the testimony of Daniel
Reisberg, a professor of psychology and memory researcher.
Reisberg testified about the science of memory and the ways
that false memories can be created and existing memories
can be changed over both long and short periods of time. He
provided examples of studies determining that false memories can be created and that people’s memories can and
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frequently do change dramatically over time due to influences internal and external to the person.
           Among other things, Reisberg testified that the
amount of detail that a person remembers about an event
generally does not correspond to the likelihood that the
memory is correct. When a person has a false memory of
an event, the person often remembers the event as taking
place in a real setting and thus can provide detail about the
setting or circumstances even when the memory of the event
itself is incorrect.
          Reisberg also testified that, once a memory is truly
forgotten—the person does not remember it although they
try and although they are exposed to triggers and cues for
the memory—a person cannot remember more details about
it over time: “As time goes by, you forget. As time goes by, you
don’t unforget.” He also explained that the scientific community of researchers who study memory has now reached
a general, though not universal, consensus that “repressed
memories”—memories that are subconsciously hidden and
re-remembered later—do not exist; “this is just not the way
memory works.”
        On cross-examination, the prosecutor questioned
Reisberg about the Oregon Interviewing Guidelines:
     “[Prosecutor:] What are the Oregon Interviewing
   Guidelines?
       “[Reisberg:] The Oregon Interviewing Guidelines is a
   set of guidelines, now in its third edition, from the Oregon
   Department of Justice that describe proper forensic procedure for interviewing children who may have been the victims of some sorts of abuse.
       “[Prosecutor:] And those guidelines are not just from
   one person at the Oregon Department of Justice. You would
   agree that they’re also a collaboration of most, if not all, of
   the child advocacy centers across the state of Oregon compiling research, creating guidelines on how to interview
   a child, how to train people on some of the concepts that
   you’ve talked about here today, right?
      “[Reisberg:] Well, no, not quite right. I mean, certainly the first edition of the Oregon—the OIG, the Oregon
720                                             State v. James

  Interview Guidelines, was written by a crew of people.
  Dr. Wendy Bourg was the—the leader of the group. I believe
  there were eight or nine other people involved.
     “It’s not clear and not well documented what the involvement was in subsequent editions. … I mean, the various
  editions have thanked various people, but the authorship is
  not clear. So I can’t agree that everyone who’s conducting
  forensic interviews in the state has somehow been involved.
      “…
     “[Prosecutor:] You would agree that the foreword to the
  Oregon Interviewing Guidelines, the 2012 third edition—
  you have reviewed those at some point?
     “[Reisberg:] Yes. I certainly have reviewed the third
  edition.
       “[Prosecutor:] You would agree that it indicates that
  it’s supported by updated research from a work group comprised of interviewers from Child Abuse Multidisciplinary
  Intervention Programs, five regional service provider centers that drafted its revisions?
      “[Reisberg:] I mean, I haven’t read it recently enough
  to confirm that those are the words. But if those are the
  words, then those words are false because the third edition
  is not updated in line with contemporary research.
      “The third edition is, in fact, dramatically worse than
  the second edition in ways that have never been explained
  for me.
     “[Prosecutor:] So you personally, as an individual,
  disagree with the collaboration of multiple child advocacy
  centers, workers from child advocacy centers and various
  experts in the interviewing of children?
     “[Reisberg:] Let’s be clear here so that, I mean, I
  represent my views accurately. The first and second editions of the Oregon Interview Guide contained about 260,
  270 pages. The third edition basically threw away three
  quarters of the material, so it’s now down to about 60 or
  70 pages.
     “I have scrutinized the third edition looking for some
  explanation for why they threw into the garbage threequarters of the material that was there. I found no explanation for that point. The third edition also systemically
Cite as 

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  moves away from the science on a number of issues. We can
  detail that if you like.
      “And so I am, in truth, just bewildered by why the high
  quality second—first and second editions of the OIG were
  transformed into this much lower quality, which again
  throws away a lot of important material and fills in a bunch
  of fluff.
      “So, yeah, I mean, I am truly puzzled by the third edition and don’t understand what has happened at all.
     “[Prosecutor:] Despite your being puzzled, you are
  aware and you would agree that it is the source on which
  interviewers across the state of Oregon are trained in—
  involving interviews at child advocacy centers?
     “[Reisberg:] Actually, I would disagree with that. I
  mean, my conversations with interviewers around the
  state and my having heard testimony from a number of
  child interviewers is that they regard the OIG as a document that they have heard about, but their training is
  much more practical and much more thorough.
      “[Prosecutor:] You would agree that Oregon interviewers, including the ones that you’ve spoken to, are supposed
  to follow the guidelines created by the Oregon Interviewing
  Guidelines?
     “[Reisberg:] That is my understanding, yes.
     “[Prosecutor:] Okay. And you are very well aware
  because you frequently sit in on cases like this, right?
     “[Reisberg:] Mm-hmm.
      “[Prosecutor:] You actually observe testimony and
  gather information about how an interview was conducted,
  for instance, at CARES Northwest?
     “[Reisberg:] That’s right.
     “…
     “[Prosecutor:] So you’re very well aware that it is highly
  commonplace for a defense attorney to cross-examine in
  detail child interviewers, first responders, police officers,
  about whether or not they actually followed the Oregon
  Interviewing Guidelines?
722                                               State v. James

     “[Reisberg:] I mean, the answer to that is, no, I’m not
  aware. I mean, certainly I have listened to many of the videotapes of interviews conducted by these people. And I will
  say with some pride that child interviewers—child interviews … in this state are usually done fabulously well.

     “The interviews at CARES Northwest, at ABC House,
  at CAC and the other facilities around the state are for the
  most part terrific. I don’t know how they’re cross-examined
  because I’ve rarely witnessed that event.”

        Ultimately, the prosecutor asked Reisberg the following question:
     “You’re aware that the Oregon Interviewing Guidelines
  under the subject of memory and suggestibility state that,
  quote, ‘Suggestibility is less likely to be a risk when the
  memory includes strong, salient details that are personal,
  meaningful and have a direct impact on the child’?”

         After some debate between Reisberg and the prosecutor, defense counsel objected to that question on the
ground that the prosecutor had not established that the
third edition of the Oregon Interviewing Guidelines was a
reliable authority. The court overruled that objection, and
the prosecutor read the quotation again. Later, the prosecutor read another quotation:
      “Are you aware that in that same section under source
  monitoring the 2012 edition of the Oregon Interviewing
  Guidelines it … says, quote, ‘It is important to note that
  it is unlikely that a child will be knowledgeable in detailed
  sexual activities unless the child’—it says ‘he or she’—but
  ‘the child is subject to extended periods of directly witnessing the activity, told in great detail on multiple occasions
  about how the activity occurs or participates directly in the
  activity’?”

Defense counsel objected again, and the court overruled the
objection. Ultimately, Reisberg acknowledged that the third
edition of the Oregon Interviewing Guidelines contained
both of those quotations.
        On appeal, defendant contends that the court erred
in overruling his objections to the prosecutor’s foundation
Cite as 

 (2020)                                   723

for impeaching Reisberg with material from the third edition of the Oregon Interviewing Guidelines that contradicted Reisberg’s testimony. The parties agree that OEC
706 applies here. That rule provides as follows:
      “Upon cross-examination, an expert witness may be
   questioned concerning statements contained in a published
   treatise, periodical or pamphlet on a subject of history,
   medicine or other science or art if the treatise, periodical or
   pamphlet is established as a reliable authority. A treatise,
   periodical or pamphlet may be established as a reliable
   authority by the testimony or admission of the witness, by
   other expert testimony or by judicial notice. Statements
   contained in a treatise, periodical or pamphlet established
   as a reliable authority may be used for purposes of impeachment but may not be introduced as substantive evidence.”
         Defendant argues that Reisberg did not testify or
admit that the third edition of the Oregon Interviewing
Guidelines was a “reliable authority.” He points out that
Reisberg (1) disagreed with the prosecutor’s assertion
that the third edition was written with input from child
advocacy centers, noting that its “authorship is unclear”;
(2) stated that “the third edition is not updated in line with
contemporary research,” that it “threw away” the majority
of the higher quality material contained in the first and
second editions and “fill[ed] in a bunch of fluff,” and that it
“systemically moves away from the science on a number of
issues”; and (3) disagreed that child interviewers rely on it.
Defendant contends that, because the state failed to show
that the third edition of the Oregon Interview Guidelines
was a reliable authority, either through Reisberg’s testimony or in any other way, the court erred in allowing the
prosecutor to impeach Reisberg with material from it.
         In response, the state contends that Reisberg’s
answer to the prosecutor’s very first question—in which
Reisberg said that the guidelines, “now in its third edition,” “describe proper forensic procedure for interviewing
children who may have been the victims of some sorts of
abuse”—coupled with his later concession that Oregon child
interviewers are supposed to follow the guidelines, establish
that the third edition of the guidelines is “a reliable authority.” OEC 706.
724                                                      State v. James

         The parties dispute what is necessary to establish
a treatise, periodical, or pamphlet “as a reliable authority
by the testimony or admission of the witness.” OEC 706. To
resolve that dispute, we first consider the meaning of “reliable authority” as that term is used in OEC 706. We apply
our familiar method of statutory interpretation, beginning
by considering the text in context, along with any useful legislative history, with the goal of ascertaining the intention
of the legislature. State v. Gaines, 

, 

 (2009).
          As a starting point, we consider dictionary definitions of the relevant terms. See State v. Gonzalez-Valenzuela,

, 

 (2015) (noting that dictionary
definitions may provide a useful starting point for our textual analysis). “Reliable” is defined as “suitable or fit to be
relied on : worthy of dependence or reliance : of proven consistency in producing satisfactory results.” Webster’s Third New
Int’l Dictionary 1917 (unabridged ed 2002); accord Black’s
Law Dictionary 1291 (6th ed 1990) (defining “[r]eliable” as
“[t]rustworthy, worthy of confidence”). All of those definitions include an evaluation of quality; to be reliable, something must be “suitable” for or “worthy of” reliance; it must
be trustworthy. See also Tape Recording, House Judiciary
Committee on Civil Law, SB 47, Feb 24, 1999, Tape 46,
Side B (statement of Jeff Johnson, Oregon State Bar
Procedure and Practice Committee Member) (in response
to concerns about allowing impeachment with pamphlets
and periodicals, not just treatises, explaining that, before
any document could be used, the proponent would have to
“establish[ ] that it is something that should be relied on
from a scientific standpoint”).1
         Consistently with that understanding, in the context of scientific expert testimony, the word “reliable” refers
to objectively verifiable scientific validity. See State v. O’Key,

, 

 (1995) (noting that the overarching subject of a court’s inquiry into scientific expert evidence “ ‘is the scientific validity—and thus the evidentiary
     1
       The Oregon State Bar’s Procedure and Practice Committee proposed the
bill. Testimony, House Judiciary Committee on Civil Law, SB 47, Feb 24, 1999,
Ex F (statement of Jeff Johnson).
Cite as 

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relevance and reliability—of the principles that underlie
a proposed submission’ ” (quoting Daubert v. Merrell Dow
Pharmaceuticals, Inc., 

, 

, 

 (1993)).
         The definition of the word “authority” that is most
relevant to its meaning in OEC 706 is the following: “an
individual (as a specialist in a given field) who is the source
of conclusive statements or testimony : one who is cited or
appealed to as an expert whose opinion deserves acceptance.” Webster’s at 146. Thus, in general terms, we understand a reliable authority to be a source (1) that is widely
cited or appealed to within the relevant community as a
source whose propositions or opinions are conclusive or
deserve acceptance and (2) whose propositions or opinions
are worthy of that community’s reliance, that is, whose contents are trustworthy.
         The state argues that Reisberg’s answer to the
prosecutor’s first question about the Oregon Interviewing
Guidelines, along with his acknowledgment that Oregon
child interviewers are supposed to follow the guidelines,
provided a sufficient foundation for its use to cross-examine
Reisberg. The state contends that this case is similar to
State v. Morgan, 

, 

 (2012), in
which we considered whether a police officer’s testimony
provided a sufficient foundation for the use of the National
Highway Traffic Safety Administration’s Field Sobriety Test
Instructor’s Manual (NHTSA Manual) to cross-examine
two officers. We described the testimony, which took place
during defense counsel’s cross-examination of the first officer, as follows: “Defense counsel … asked [Officer] May
if he recognized the NHTSA manual as the authoritative
manual that officers use in analyzing, interpreting, and
conducting [field sobriety tests]. May answered: ‘Yes, Sir.’ ”

. That was the only exchange related to the foundation for the NHTSA manual. See 

         That exchange sufficiently established that the
NHTSA manual was a reliable authority. We explained
that “May acknowledged that the NHTSA manual was the
authoritative reference source that police officers use in analyzing, interpreting, and conducting” field sobriety tests and
726                                             State v. James

held that “[t]hat testimony provided a sufficient foundation
for its use in the cross-examination of” May and a second
officer who testified as an expert. 

.

         The state points out that the discussion of the third
edition of the guidelines in this case was much longer than
the officer’s foundational testimony in Morgan. That is true,
but it is not dispositive. In Morgan, the officer’s brief testimony was unambiguous that the single authority under discussion—“the NHTSA manual”—was authoritative and that
officers relied on it regarding field sobriety tests. Here, by
contrast, the first statement that the state relies on does not
refer to the particular document that the prosecutor sought
to impeach with. Although the state is correct that Reisberg
described the guidelines, as a whole, as “describ[ing] proper
forensic procedure,” he was not referring to the third edition
in particular. His additional testimony made clear that the
first two editions were reliable and authoritative, but the
third edition was not. In light of his additional testimony,
it is implausible to understand the first statement as an
admission that the third edition, in particular, is a reliable
authority. Cf. Herbert v. Altimeter, Inc., 

,

 (2009) (in assessing the sufficiency of evidence
to avoid a directed verdict, explaining that a statement’s
context limits the inferences that it supports; reasoning that
the defendant’s testimony that the plaintiff’s condition precluded her from safely driving any truck could not be understood to mean that she could never safely drive any truck
because the defendant “explained immediately thereafter
that her condition ‘eliminate[d] her work as a commercial
driver’ only ‘until the cause was determined and the treatment was undertaken and the symptoms were alleviated’ ”).

         Likewise, taken in isolation, Reisberg’s acknowledgement that child interviewers are supposed to follow the
third edition of the guidelines might support the proposition
that the third edition is a reliable authority. However, in
light of his assertion that child interviewers are not actually trained on the third edition, it is likewise implausible to
understand the fact that they are supposed to rely on it as
establishing its authoritativeness or reliability. Here, unlike
the officer’s testimony in Morgan, Reisberg’s testimony
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established neither that the third edition of the guidelines is
widely cited or appealed to within the relevant community
as a source whose propositions or opinions are conclusive or
deserve acceptance nor that its propositions or opinions are
trustworthy.
         OEC 706 was enacted to fix a problem in trial
practice:
   “Under current Oregon law, expert witnesses who testify at
   trial may be cross-examined by statements in [a] learned
   treatise only if that expert relies upon the treatise or
   acknowledges it as a reliable authority. Under this scenario
   experts can and often do avoid being impeached simply by
   denying … that [a treatise] is an authority.”
Testimony, House Judiciary Committee on Civil Law, SB 47,
Feb 24, 1999, Ex F (statement of Jeff Johnson). OEC 706
solved that problem “by permitting the proponent of a
learned treatise to establish it as an authority in the field
either through another expert witness or by judicial notice.”

 Thus, faced with Reisberg’s refusal to acknowledge the
third edition of the guidelines as a reliable authority, the
state was free to provide the necessary foundation through
its own expert. OEC 706. However, it did not.
        On appeal, as an alternative to its argument that
Reisberg’s testimony laid the necessary foundation, the state
asks us to take judicial notice that the third edition is a reliable authority. Relying on State v. Branch, 

,

, rev den, 

 (2011), the state contends
that this case is appropriate for judicial notice because we
should be “satisfied … that the principles underlying the
proffered evidence and the application of those principles to
the problem involved are indisputably valid.” Id. at 323.
         We disagree. In our view, the principles set out in
the third edition of the Oregon Interviewing Guidelines and
their application to the subject at hand are not indisputably
valid. Consequently, this is not a case in which it is appropriate for us to take judicial notice on appeal.
        Having concluded that the trial court erred in overruling defendant’s objection to the cross-examination, we
consider whether there is “little likelihood that the particular
728                                                        State v. James

error affected the verdict.” State v. Davis, 

, 

 (2003); see also Or Const, Art VII (Amended), § 3;
OEC 103(1) (“Evidential error is not presumed to be prejudicial.”). The state does not contend that the error was harmless, and we conclude that it was not.
         Reisberg’s testimony was critical to defendant’s theory of the case; it provided the jury with the only plausible
explanation for the counterintuitive argument that M and V
could have apparently real memories of abuse that never
took place. As set out above, two of the basic propositions
of Reisberg’s testimony were that there is no direct correlation between the amount or kind of detail that a person
remembers and the accuracy of the memory and that people’s memories can always be changed over time by external and internal influences. The quotation that the prosecutor read from the third edition of the Oregon Interviewing
Guidelines suggests, to the contrary, that a memory is not
likely to have changed over time if “the memory includes
strong, salient details that are personal, meaningful and
have a direct impact on the child.”
         By impeaching an expert with material from a reliable authority, the cross-examiner shows the jury that the
expert’s opinions are at odds with reliable, authoritative
principles; the impeachment demonstrates that the expert
is an outlier in the relevant field and, consequently, that
the expert’s opinions should not be accepted. See Testimony,
House Judiciary Committee on Civil Law, SB 47, Feb 24,
1999, Ex F (statement of Jeff Johnson) (the purpose of crossexamining an expert with a learned treatise is “to demonstrate that the principles upon which the expert relies are
flawed or that the expert has inappropriately departed from
mainstream authority as set forth in [a] learned treatise
in the field”). The foundation requirement safeguards the
integrity of the trial by requiring that, before making that
suggestion to the jury, the proponent must first make a
showing that the purportedly reliable, authoritative principles are, in fact, reliable and authoritative.2 If they are not,
    2
      See Tape Recording, House Judiciary Committee on Civil Law, SB 47,
Feb 24, 1999, Tape 46, Side B (Representative Uherbelau explains that the foundation requirement is the “safeguard” in the bill).
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then the implication to the jury that the expert’s opinion is
at odds with reliable, authoritative principles will be false. If
the foundation requirement is not satisfied, the jury’s ability
to fairly evaluate the expert’s credibility is compromised.
         Here, the court allowed the prosecutor to cross-examine Reisberg by quoting a principle from an authority for which the necessary foundation was not laid. That
principle was directly contrary to Reisberg’s testimony and,
thus, gave the jury reason to doubt Reisberg’s testimony.
Given that that testimony was critical to defendant’s case,
that error was not harmless.
         Reversed and remanded.