State v. Chandler

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.