Evidence Code

ORS 40.410
Rule 702

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. [1981 c.892 §58]

Notes of Decisions

Guidelines for determining relevance or probative value of proffered scientific evidence are: 1) general acceptance in field; 2) expert’s qualifications and stature; 3) use made; 4) potential for error; 5) existence of specialized literature; 6) novelty; and 7) reliance on subjective interpretation. State v. Brown, 297 Or 404, 687 P2d 751 (1984)

Expert testimony that merely tells jury what legal conclusion to reach is not admissible under this rule. French v. Barrett, 84 Or App 52, 733 P2d 89 (1987)

Expert testimony concerning standards of good faith dealing among joint venturers is admissible under this section if it will assist jury in determining whether defendants’ actions fulfilled their duty of “loyalty and fair dealing.” Commerce Mortgage Co. v. Industrial Park Co., 101 Or App 345, 790 P2d 16 (1990), as modified by 102 Or App 284, 793 P2d 894 (1990), Sup Ct review denied

Error in admitting testimony of police officer, not qualified as expert, regarding speed of vehicles involved in collision, was harmless in light of other evidence. Hays v. Huard, 108 Or App 289, 814 P2d 559 (1991)

Police officer, qualified as expert, could testify based on reconstruction as to speed of vehicle involved in collision although he was not eyewitness to accident. DeFries v. Post, 108 Or App 298, 815 P2d 224 (1991)

Fact that psychologist lacked license affects weight given opinion rather than admissibility. Aetna Casualty v. Robinson, 115 Or App 154, 836 P2d 1362 (1992)

Medical doctor was not precluded from testifying that child was sexually abused as medical diagnosis simply because jury might infer from that testimony that another witness was telling the truth. State v. Wilson, 121 Or App 460, 855 P2d 657 (1993), Sup Ct review denied

Forensic DNA testing has sufficient scientific reliability to be helpful to trier of fact in matters of identification. State v. Futch, 123 Or App 176, 860 P2d 264 (1993), aff’d 324 Or 297, 924 P2d 832 (1996)

Where expert did not comment directly on credibility of defendants, testimony of expert that changing explanation for child’s injuries was typical child abuser behavior was permissible. State v. Butterfield, 128 Or App 1, 874 P2d 1339 (1994), Sup Ct review denied

Evidence that has potential to influence trier of fact as scientific evidence must be reviewed by court for scientific validity and pertinence. State v. O’Key, 321 Or 285, 899 P2d 663 (1995)

Validity and pertinence of scientific evidence must be evaluated by court in light of: 1) whether theory or technique can be and has been tested; 2) whether theory or technique has been subject to peer review and publication; 3) known or potential rate of error; and 4) degree of acceptance in relevant scientific communities. State v. O’Key, 321 Or 285, 899 P2d 663 (1995)

Expert witness on medical subject need not be person licensed to practice medicine. Cunningham v. Montgomery, 143 Or App 171, 921 P2d 1355 (1996), Sup Ct review denied

Lack of real estate appraiser license does not prevent person having sufficient knowledge, skill or experience from presenting testimony giving comparative market analysis. Yager and Yager, 155 Or App 407, 963 P2d 137 (1998), Sup Ct review denied

Testimony based on personal observation or specialized knowledge of professional and offered for purpose unrelated to establishing conformance with scientific principle is not scientific evidence requiring establishment of foundation. State v. Stafford, 157 Or App 445, 972 P2d 47 (1998), Sup Ct review denied

Scientific evidence forming basis for expert opinion may consist of physician case reports employing scientific methodology. Jennings v. Baxter Healthcare Corp., 331 Or 285, 14 P3d 596 (2000)

Physician’s diagnosis that patient is suffering from particular condition is subject to foundational requirements for scientific evidence. State v. Sanchez-Cruz, 177 Or App 332, 33 P3d 1037 (2001), Sup Ct review denied

Where qualified experts disagree concerning validity of medical diagnosis or other scientific evidence, court should rely upon trial process and jury evaluation to determine truth rather than excluding scientific evidence pretrial. Kennedy v. Eden Advanced Pest Technologies, 222 Or App 431, 193 P3d 1030 (2008)

Where other legitimate grounds exist for act to be considered during differential diagnosis process as possible cause of injury, lack of scientifically accepted mechanism of causation or other verifiable correlation does not require excluding act from consideration. Marcum v. Adventist Health System/West, 345 Or 237, 193 P3d 1 (2008)

Nurse’s experience working with patients suffering from traumatic brain injury qualified nurse as expert for purposes of testifying to injury’s impact on defendant’s field sobriety test despite nurse’s lack of specialized education or training. State v. Woodbury, 289 Or App 109, 408 P3d 267 (2017)

Witness’s experience as professor of finance, educational background and authorship of numerous articles on valuation of corporate entities and property qualified witness as expert for purposes of testifying about valuation of income-producing properties, despite witness’s lack of licensure as appraiser and experience in business valuation as opposed to property valuation. Level 3 Communications, LLC v. Dept. of Rev., 23 OTR 87 (2018)

Police officer’s testimony concerning general concept of “grooming” was scientific in nature and therefore required scientific foundation, when officer was not involved in investigation of case and testimony was based on training and experience and not on particular facts of case. State v. Etzel, 310 Or App 761, 488 P3d 783 (2021)

Where abusive head trauma diagnosis met minimum requirements of scientific validity under to be helpful to jury and was based on physical evidence and medical explanation of significance of victim’s injuries, diagnosis was admissible under OEC 403. State v. Allen, 311 Or App 271, 489 P3d 555 (2021)

Law Review Citations

71 OLR 93, 349 (1992)


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Mar. 11, 2023