State v. Jesse

584 November 17, 2016 No. 72

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

LANE EDWARD JESSE,

Respondent on Review.

(CC C110695CR; CA A153759; SC S063856)

En Banc

On review from the Court of Appeals.*

Argued and submitted September 22, 2016.

Peenesh Shah, Assistant Attorney General, Salem,

argued the cause and filed the brief for petitioner on review.

Also on the brief were Ellen F. Rosenblum, Attorney General,

and Benjamin Gutman, Solicitor General.

Neil F. Byl, Deputy Public Defender, Salem, argued the

cause and filed the brief for respondent on review. Also on

the brief was Ernest G. Lannet, Chief Defender, Office of

Public Defense Services.

BREWER, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is affirmed.

Case Summary: Defendant offered expert testimony of his psychological pro-

file and diagnosis in support of his theory that statements that he made were not

actual confessions of guilt. The trial court excluded the testimony on the ground

that it was not helpful to the jury under OEC 702. The Court of Appeals reversed.

Held: The trial court did not err in excluding the expert testimony because the

testimony did not demonstrate the inference that defendant wanted the jury

to draw—that people with adjustment disorders are distressed, have poor cop-

ing skills, obsessively ruminate, and may make statements that are not actual

admissions of guilt.

The decision of the Court of Appeals is reversed. The judgment of the circuit

court is affirmed.

______________

*  Appeal from Washington County Circuit Court, Rick Knapp, Judge. 275 Or

App 1, 362 P3d 1187 (2015).

Cite as 360 Or 584 (2016) 585

BREWER, J.

The issue on review following defendant’s conviction

for first-degree sexual abuse is whether the trial court erred

in excluding from evidence at trial, on the ground that it

was not helpful to the jury, expert testimony that defendant

proffered in support of his theory that certain statements

that he had made were not, in fact, actual confessions of

guilt. OEC 702.1 Because we conclude that the trial court

did not err in excluding the proffered testimony, we affirm

defendant’s conviction.

I.  FACTS AND PROCEDURAL HISTORY

Defendant was indicted in April 2011 on one count

of first-degree sexual abuse, based on an allegation that

he knowingly subjected his daughter M to sexual contact.

Because defendant argues that the excluded expert testi-

mony would have helped explain his own statements that

the state characterized as confessions of guilt, we describe

those statements in detail.

A.  Statements that the State Claimed Were Confessions to the

Charged Offense

1.  Defendant’s initial disclosure to S

Defendant and his wife, S, were married for eight

years and have two children, M and L. M was four years old

in November 2009, when S returned home from work one

morning and found defendant extremely upset. As S later

described the discussion, defendant told her that she would

never forgive him, handed over his wedding ring, and then

told her that he had touched M over her diaper. S testified

that defendant also said that he had been thinking about

touching the children for some time and that he was worried

about “turning into his [own] family.” According to S, defen-

dant said that “he belonged in prison and to call the police

right now.” S did not call the police, because defendant told

1

OEC 702 provides that,

“[i]f 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.”

586 State v. Jesse

her that M had not awakened and did not know about the

touching, and defendant agreed to leave the house.

2.  Signed admission

S agreed to stay married to defendant for a short

time so that he could seek counseling using her health insur-

ance. S testified that she insisted, however, that she “needed

some sort of proof that says that [defendant] did this so that

* * * he couldn’t come back later and say that he wanted the

kids.” S testified that she wrote the following statement for

defendant to sign:

“I, [defendant], am admitting to touching my oldest daugh-

ter, [M], in an inappropriate way. I went in her room early

in the morning and was tucking her into bed when I ran my

hand over her diaper, over her pubic area. I then walked out

and went to bed. My daughter did not wake up. I have never

done this before. When my wife came home from work, I

told her. She told me to leave and I agreed to that and to

get counseling. I am writing this so my wife, [S,] has proof

for the protection of our children.”

S also testified that she read the document out loud to defen-

dant, and then defendant read and signed it. In his trial tes-

timony, defendant denied that S showed him the document,

and he asserted that his signature was forged.

3.  M’s disclosures

S and defendant dissolved their marriage in March

2010. On September 11, 2010, M told S, “Well, one time I

was in bed with daddy and—and he put his hand down my

diaper.” M moved her hand over her pubic area to show S

how defendant had touched her and said that defendant’s

hand was on “her private.” M said that defendant did not

take his hand out, so M pulled his hand out of her diaper. M

told S that she did not tell about the incident sooner because

she was afraid that defendant “would have to go away.” A

few days later, before S called the police, she had M repeat

the story. M’s story was the same except for an added detail

about defendant saying, “I’m sorry.”

M described the incident similarly in a recorded con-

versation during a medical examination on September 20,

2010, and in testimony at trial. The physician did not find any

Cite as 360 Or 584 (2016) 587

physical signs of abuse, but testified that that was consistent

with an allegation of touching the outside of the vagina.

4.  Defendant’s statements to sheriff’s deputies

Defendant was arrested on April 3, 2011, and he

was confined in the Washington County Jail. Nearly a year

later, while still in jail and awaiting trial in this case, defen-

dant approached two deputies. According to the deputies,

defendant asked, “What happens if I confess right now?”

The deputies testified that, a few minutes later, defendant

approached them again and said, “I did it. I confess.” A dep-

uty told defendant that the matter was between him and the

courts. Defendant continued to pace the unit, approached the

deputies again, and said (again, as the deputies described

it), “Okay. I touched my daughter. I admit [it]. I’m a jerk.”

B.  Dr. Callum’s Pretrial Testimony

Defendant attended 15 counseling sessions with

Dr. Callum, a licensed psychologist, between December

2009 and July 2010, beginning shortly after the date of the

charged offense. Defendant discussed with Callum issues

of anxiety and marital difficulties. According to Callum,

defendant told her that he was concerned about “thoughts”

of touching his children, but assured Callum that he had

“never” acted on the thoughts.

Before trial, the state filed a motion in limine,

based in part on OEC 702, to exclude testimony by Callum

concerning her clinical impressions of defendant. The state

argued that “defendant will not be able [to] establish a

sufficient nexus between [his] actions/behaviors and * * *

Callum’s observations, opinions, discussions, recommenda-

tions, or beliefs surrounding her contacts with the defen-

dant.” The state contended that “Callum has not even pro-

vided a formal diagnosis, and if such a diagnosis were to

be provided, * * * there is not a satisfactory link that can

be demonstrated between the diagnosis and the material

events that occurred in this case”; thus, her “testimony is

not assistive to the trier of fact and should be excluded.”

The trial court held a pretrial hearing at which

defendant elicited testimony from Callum through an

588 State v. Jesse

offer of proof. On direct examination, Callum testified that

defendant

“had very low self-esteem. He was also plagued by fears

and many of the cognitions of his childhood, which kept on

just ruminating [in] his head, and those were the fears and

negative thoughts that he was always having. And which

continuously made him wonder if he was okay, what was

wrong with him.”

Based on her clinical observations, Callum testified that

defendant’s “level of rumination” could “definitely lead him

to become obsessive” and, at times, “be unhealthy.” When

Callum was asked whether defendant had “adequate coping

skills and self-esteem to deal with personal issues,” she tes-

tified, “No. No. A lot of the times he—he was very fearful,

and he let * * * the rumination of his thoughts plague. He

could not let those things go.”

On cross-examination during the offer of proof,

Callum further explained that she had diagnosed defendant

with an adjustment disorder and related mental health

issues:

“A. [CALLUM]:  * * * I diagnosed him as adjustment

disorder with depressed mood. And I also diagnosed him

with a trauma related to childhood physical and emotional

abuse. And then the AXIS IV would be (indiscernible) expe-

riencing marital difficulties or extramarital affairs.

“Q.  [PROSECUTOR]:  What is adjustment disorder?

“A. [CALLUM]:  Adjustment disorder is when they

have difficulty in [being] able to cope with the situation or

where they have—just not being able to—to put everything

together and they are letting it affect them. And you—and

there’s several—you can have adjustment disorder not

otherwise specified, you can have adjustment disorder with

anxiety and depression. You can have adjustment disorder

with anxiety alone, you can have it with depression alone.

You can also have it—adjustment disorder with a variety of

emotions. And that is a very typical diagnosis when people

are having difficulty in bringing it all together.”

On further cross-examination, Callum addressed

the relationship between defendant’s mental health diagno-

ses and his statements to the jail deputies:

Cite as 360 Or 584 (2016) 589

“Q. [PROSECUTOR]:  Were you aware that [defen-

dant] confessed in March of 2012 to touching his daughter,

to two jail deputies, without them asking any questions?

“A.  [CALLUM]:  I heard about that, yes.

“* * * * *

“Q. [PROSECUTOR]:  I’m asking you whether you’re

factoring that in.

“A.  [CALLUM]:  And that’s what I’m going to say. In

regards to that confession, I would factor my knowledge

about him, about his adjustment, you know his high degree

of distress and so that—that would be where with my medi-

cal certainty would be he was very distressed. And whether

he’s confessing to something out of distress, that’s within

the realm of possibility.”2

C.  The Trial Court’s Ruling

Following the offer of proof, the prosecutor reiter-

ated that “there was no description by * * * Callum, as to

how this adjustment disorder would have affected [defen-

dant’s] likelihood of confessing, making false confessions,

writing false confessions, anything.” The prosecutor further

contended that “there’s been no evidence that would connect

his mental health issues, or whatever he’s going through,

his adjustment disorder, to any sort of other behavior, of

how that would affect his behavior throughout the course

of trial—and again, that’s what * * * this witness is being

proffered for.”

The trial court then questioned whether defendant’s

adjustment disorder was relevant to an issue of fact in the

case:

2

The prosecutor also elicited the following opinion from Callum on cross-

examination:

“Q.  [PROSECUTOR]: And all that [a signed confession, disclosure of

thoughts of sexually touching children, and the jailhouse admissions], even

knowing that, today you’re testifying under oath, that you believe to a rea-

sonable degree of medical certainty that he did not abuse his children?

“A.  [CALLUM]:  That’s correct.”

Defense counsel conceded, however, at the conclusion of the hearing, that

such an opinion was inadmissible “vouching” testimony and that the trial court

should not treat it as part of his offer of proof. Accordingly, we do not consider that

testimony in our analysis here.

590 State v. Jesse

“* * * I’m looking at the diagnosis of his adjustment dis-

order with depression, thinking well, what does that have

to do with anything. I’m looking at the—he was there to

be treated by—he was there to be treated by Dr. Callum,

the wife wasn’t there for treatment, the child wasn’t there

for treatment, she had very little contact with either one of

them in a treatment phase. Certainly she is not going to be

able to get—as you said yourself, she can’t give the opinion

of what she—that she believes he didn’t do the act, and all

that kind of stuff.

“But, you know, the fact that he suffers from adjustment

disorder with depression, has really nothing to do with this

case. * * * I’m having a hard time figuring out the rest of

this, because I don’t know what the rest—you were talking

about you wanted to get into his psychological profile, and

I’m thinking well, how is that relevant to his not under-

standing what he signed or—I mean, other than that, I

don’t know what it’s relevant to.”

Defense counsel replied that defendant’s “psycho-

logical profile also applies to the statements of the guards,

because of his poor coping skills and his excessive rumina-

tion and his hallucinatory behavior,” and that “the nexus

* * * is that people who have poor coping skills, try differ-

ent strategies, and—and people make false confessions, and

make false statements.” Counsel emphasized that the the-

ory of defense was that the defendant’s hand

“brushed the front of [M’s] diaper, and that what it was

in fact, was an accidental touching, but that [defendant],

because of his excessive rumination, as described by

Dr. Callum, his poor life skills, his poor coping skills, his

poor understanding of the way things work, I believe she

described him as being very simplistic, he began ruminat-

ing over that and wondering because of his familial origin,

if he was turning into the kind of person that would do

something like this to his daughter.”

Counsel added that he was “not just coming up with this”;

when defendant was evaluated by a different psycholo-

gist, Dr. Czar, defendant had denied any sexual motive

in the touching and had insisted that “what he said to

Dr. Callum, which was ‘I had bad thoughts,’ was some-

thing that he and his wife hatched together to get him

services. That he was concerned, that because of his

Cite as 360 Or 584 (2016) 591

family origin, that he might have a subconscious motive

that was in play.”

Defense counsel explained that the “thrust of our

case” was that, because of defendant’s “poor coping skills,

excessive ruminating, which is what Dr. Callum described,

adjustment disorders,” he deferred to his wife and signed the

confession when she presented it, “because his overwhelm-

ing concern was, ‘I’ll do whatever you guys want me to do,

I just want to see my children again. If you—if you want

me to have treatment, I’ll do treatment. I just want to see

my kids again.’ ” Counsel further explained that, “under our

theory, that he has poor coping skills and makes bad choices

because of poor coping skills, which [Callum] testified to,

that occurs in false confession cases.”

The trial court ultimately agreed with the state and

ruled that Callum “cannot get into his psychological diag-

nosis or profile.” The court concluded that the “diagnosis is

[not] helpful to the jury. There’s no nexus between that diag-

nosis and the defense in this case.”

D.  The State’s Evidence at Trial

At trial, the state offered evidence of defendant’s

statements to S about touching M and having sexual

thoughts about his children, the signed document, evidence

of defendant’s statements to the deputies, and testimony

from M that defendant had sexually abused her.

E.  Defendant’s Trial Testimony

In his trial testimony, defendant contradicted much

of the testimony by the state’s key witnesses, as well as parts

(detailed below) of Callum’s pretrial testimony. With respect

to S’s testimony about the day that he left the marital home,

defendant acknowledged that he was very emotional when S

came home and that he had thoughts about “my cousin and

my mom being molested as a kid, and I felt that that was

pretty disgusting.” He testified, however, that he told S that

he only accidentally had touched M’s diaper while pulling up

her covers and that S “freaked out.” Defendant insisted that

he “really didn’t think much of it other than the fact it was

an accident” and that he took off his ring and left the house

because of S’s reaction. He described his thoughts as, “[Y]ou

592 State v. Jesse

know, you’re freaking out at me, I’m done, I’m going to walk

away here.” Defendant further testified that he had not seen

the purported written confession until it was provided to his

attorney during discovery and that his apparent signature

on that document had been forged.

Defendant further testified that he had not been

under stress when he spoke to the deputies while in jail and

that, although he had told them that he had touched his

daughter, he had not said anything about “private parts.”

With respect to his disclosures to Callum during

counseling, defendant testified that he had never had inap-

propriate thoughts about children but that he and S had

agreed that he would tell Callum otherwise to avoid tell-

ing her about the touching incident, which defendant feared

Callum might have to report to the authorities. Defendant

also denied that sexual abuse was a “hot button” issue for

him in light of his family history.

In sum, defendant testified that he lacked a sex-

ual motive when he accidentally touched M, that he had

not made any incriminating statements to S, that the pur-

ported written confession was a forgery, that he had not

admitted touching M’s private parts to the deputies, and

that he had falsely told Callum that he had inappropriate

thoughts about children. The jury found defendant guilty of

first-degree sexual abuse, and he appealed from the ensuing

judgment of conviction.

F.  The Court of Appeals Decision and Arguments on Review

On defendant’s appeal, the Court of Appeals

reversed. In concluding that the trial court had erred in

excluding Callum’s testimony, the Court of Appeals explained

that “the record supplies a nexus between Callum’s testi-

mony about defendant’s adjustment disorder and its effect

on defendant.” State v. Jesse, 275 Or App 1, 16, 362 P3d 1187

(2015). The Court of Appeals explained that defendant’s the-

ory of the case was that he had obsessed over an acciden-

tal touching of his daughter and then was “overwhelmed by

the stress,” causing him to confess falsely. Id. at 15-16. In

the court’s view, Callum’s “testimony was consistent with

and would have bolstered that theory, providing a scientific

Cite as 360 Or 584 (2016) 593

basis—an adjustment disorder that made defendant sus-

ceptible to rumination and obsessive thinking, and left him

with very poor coping skills—to help explain what would

be a highly unusual reaction to an accidental touching.” Id.

at 16. That is, the Court of Appeals viewed Callum’s testi-

mony as sufficient to support a factfinder’s determination

that defendant’s written and oral statements were not “true

admission[s] of guilt.” Id.

On review, the state asserts that the trial court

properly excluded Callum’s testimony under OEC 702 on

the ground that it was unhelpful. The state points out that

Callum did not testify that defendant’s disorder was of a sort

that has been observed by experts as likely to cause “false

confessions,” nor did she describe any indicia that a fact-

finder could use to determine whether defendant’s admis-

sions were linked to his disorder. The state reasons that,

“[w]ithout that type of testimony, the expert left the [fact-

finder] to speculate as to whether defendant’s disorder

could have caused him to confess falsely—a matter which

requires the application of expertise regarding that disor-

der and its presentation among those afflicted with it. As a

result, the proffered testimony was not helpful under OEC

702 and therefore inadmissible under that rule.”

Defendant responds that the Court of Appeals correctly con-

cluded that the trial court had erred in excluding Callum’s

testimony.

II. ANALYSIS

A.  The Helpfulness Inquiry Under OEC 702

As noted, 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.”

In State v. Brown, 297 Or 404, 687 P2d 751 (1984), this court

explained the nature of the requirement in OEC 702 that, to

be admitted, scientific evidence must “assist the trier of fact

to understand the evidence or to determine a fact in issue.”

594 State v. Jesse

“Under the Oregon Evidence Code and traditional evi-

dence law, expert testimony is admissible if it is relevant

under OEC 401 and will help the trier of fact in deciding a

disputed issue. To be helpful [under OEC 702], the subject

of the testimony must be within the expert’s field, the wit-

ness must be qualified, and the foundation for the opinion

must intelligibly relate the testimony to the facts. If these

conditions are satisfied, the testimony will be excluded only

if it is unduly prejudicial, repetitive, or falls under some

other exclusionary provision as provided in OEC 403.”

Id. at 409.3

To be helpful, expert testimony must assist a trier

of fact to understand the evidence or determine an issue of

fact that it may not be able to understand or determine as

well on its own. See Yundt v. D & D Bowl, Inc., 259 Or 247,

258, 486 P2d 553 (1971). As examples, expert testimony can

be helpful by:

“ ‘(1) supplying general propositions which will permit

inferences from data which the trier of fact would other-

wise be forced to find meaningless; (2) applying general

propositions to data so as to generate inferences where the

complexity of the body of propositions applied, the difficulty

of the application, or other factors make the expert’s con-

clusion probably more accurate or precise than that of the

trier of fact; (3) modifying, qualifying, and refining gen-

eral propositions which the trier of fact may reasonably be

expected to use; and (4) adding specialized confirmation

and, thus, confidence to general propositions otherwise

likely to be assumed more tentatively by the trier.’ ”

State v. O’Key, 321 Or 285, 298, 899 P2d 663 (1995) (quot-

ing John William Strong, Language and Logic in Expert

3

The parties appear to assume—and we agree with the premise—that

Callum’s testimony amounted to “scientific evidence.” See, e.g., State v. Milbradt,

305 Or 621, 631, 756 P2d 620 (1988) (treating testimony of expert about child vic-

tims’ normal reactions to sexual abuse as “scientific evidence”). Of course, other

requirements for the admission of scientific evidence also exist. Most notably,

“[u]nderpinning the entire admissibility analysis * * * is the requirement that the

evidence be shown to be scientifically valid.” State v. Perry, 347 Or 110, 121, 218

P3d 95 (2009); see also Marcum v. Adventist Health System/West, 345 Or 237, 245,

193 P3d 1 (2008) (so holding); O’Key, 321 Or at 301 n 19 (“[S]cientific validity [is]

the linchpin of admissibility.”). However, because the state’s challenge is narrow,

focusing only on the helpfulness requirement, we do not address the other foun-

dational requirements for the admission of such evidence.

Cite as 360 Or 584 (2016) 595

Testimony: Limiting Expert Testimony by Restrictions

of Function, Reliability, and Form, 71 Or L Rev 349, 360

(1992)).

In this case, defendant asserts that Callum’s testi-

mony would have helped the jury by having a tendency to

“modify” or “qualify” a “general proposition” that the jury

may reasonably have been expected to use in this case,

namely, that a person who appears to admit guilt of an

offense likely is guilty.4 This court has discussed the help-

fulness of expert testimony offered for analogous purposes

in two prior decisions that are instructive here.

State v. Middleton, 294 Or 427, 429-30, 657 P2d

1215 (1983), involved a social worker’s expert testimony

that the victim’s reaction to rape was typical of most victims

of familial sexual abuse. The victim testified at trial that

the defendant—her father—had raped her. The defendant,

who denied that the rape had occurred, introduced state-

ments by the victim that were inconsistent with her claim

of rape. In rebuttal, two social workers testified regarding

the reactions of young victims of family sexual abuse. One

of the social workers testified that the victim’s behavior

was typical of most victims. The defendant challenged the

admission of that testimony at trial on the ground that it

was not helpful to the jury. Id. at 434. This court concluded

that the testimony was admissible because it could help the

jury better assess the victim’s credibility by explaining her

“superficially bizarre behavior[, i.e., making inconsistent

statements about whether the rape occurred,] by identifying

its emotional antecedents.” Id. at 436.

In State v. Gherasim, 329 Or 188, 190, 985 P2d

1267 (1999), a rape prosecution, the victim had identified

the defendant as her assailant, but the defendant asserted

4

Defendant also briefly asserts, without elaboration, that Callum’s testi-

mony would have provided the jury with evidence that it could use to confirm

defendant’s explanation of his behavior, thereby (in the words of O’Key, 321 Or

at 298) “adding specialized confirmation * * * to general propositions otherwise

likely to be assumed more tentatively by the trier.” Because defendant has not

developed that argument by identifying, for example, what general proposition

Callum’s testimony would have confirmed that, without that testimony, the jury

was likely to have “assumed more tentatively,” we do not consider that argument

further.

596 State v. Jesse

that someone else had assaulted the victim and he merely

arrived at the scene and attempted to help her. The defen-

dant proffered the testimony of a psychiatrist that the vic-

tim experienced dissociative amnesia, which had caused her

to be confused and unable to recall the events of the assault

accurately at trial. Id. at 192. The state objected, and the

trial court allowed an offer of proof, which went into the spe-

cifics of what aspects of the victim’s behavior suggested the

presence of dissociative amnesia. The trial court ultimately

excluded the testimony. Id. at 196. This court reversed, con-

cluding that the expert’s testimony would have been helpful

because the expert “would have testified that, in his opin-

ion, the victim suffered from dissociative amnesia and that

that condition affected her capacity to remember what had

occurred on the night that she was assaulted.” Id. at 198.

In both Middleton and Gherasim, this court con-

cluded that expert testimony that modified inferences that

the jury otherwise might be expected to draw from the evi-

dence satisfied the helpfulness standard. Implicit in both

holdings were determinations that the testimony intelligi-

bly related to a provable fact. See Brown, 297 Or at 409 (stat-

ing that foundation for expert testimony must intelligibly

relate testimony to provable facts). That aspect of helpful-

ness refers to the relationship—that is, the relevance—that

expert testimony must bear to a fact in issue. See State v.

Guzek, 322 Or 245, 251, 906 P2d 272 (1995), vac’d on other

grounds, 336 Or 424, 86 P3d 1106 (2004) (“ ‘Relevancy is

not an inherent characteristic of any item of evidence but

exists only as a relation between an item of evidence and a

matter properly provable in the case.’ ”) (quoting OEC 401

Commentary, reprinted in Laird C. Kirkpatrick, Oregon

Evidence 104 (2d ed 1989)). This court’s separate references

in Brown to the basic relevance requirement of OEC 401 and

the proposition that, to be helpful, expert testimony must

intelligibly relate to a provable fact, should not be under-

stood to have created a heightened relevance requirement

for expert testimony. Instead, the “intelligibly relate” refer-

ence gives voice to the unsurprising intuition that, to help

a trier of fact understand the evidence or decide a fact in

issue, expert testimony must relate to the fact in an under-

standable way. See State v. Wright, 323 Or 8, 17-18, 913 P2d

Cite as 360 Or 584 (2016) 597

321 (1996) (stating that helpfulness “subsumes” a relevance

inquiry).5

Some expert testimony, like other forms of evidence,

only conditionally relates to a fact in issue, meaning that

it is relevant only if another fact—the conditional fact—is

first proved. State v. McNeely, 330 Or 457, 462 n 5, 8 P3d

212, cert den, 531 US 1055 (2000).6 We mention that wrinkle

here, because defendant proffered Callum’s testimony about

his adjustment disorder to provide an inference that defen-

dant did not touch M with a culpable mental state. Callum’s

testimony would be relevant to that fact in issue only if a

conditional fact was proved, that is, that defendants’ adjust-

ment disorder influenced him to make admissions that were

not actual confessions of guilt. That conditional fact—like

any other fact in issue—could be established by reasonable

inferences, but not through speculation. See State v. Parker,

235 Or 366, 381-82, 384 P2d 986 (1963).7

B.  Standard of Review

With that foundation in mind, our first task is to

identify the standard that governs our review of the trial

court’s helpfulness ruling. As discussed, the court concluded

5

This court repeatedly has described relevancy as a component of the help-

fulness analysis. See Brown, 297 Or at 438 (“We have set forth seven factors to be

used in connection with the definition of ‘relevancy’ as defined in OEC 401 and to

be utilized in determining the helpfulness test for expert testimony expressed in

OEC 702.”); see also Marcum, 345 Or at 243 (court must conduct relevancy analy-

sis implicated in OEC 702’s helpfulness standard); Jennings v. Baxter Healthcare

Corp., 331 Or 285, 302, 14 P3d 596 (2000).

6

See also OEC 104(2) (if “relevancy of evidence depends upon the fulfillment

of a condition of fact, the court shall admit it upon, or subject to, the introduction

of evidence sufficient to support a finding of the fulfillment of the condition”).

7

The line between permissible inferences and impermissible speculation is

difficult to articulate with precision. The federal courts usefully have described

that line in these terms:

“The line between a reasonable inference that may permissibly be drawn by

a jury from basic facts in evidence and an impermissible speculation is not

drawn by judicial idiosyncrasies. The line is drawn by the laws of logic. If

there is an experience of logical probability that an ultimate fact will follow

a stated narrative or historical fact, then the jury is given the opportunity to

draw a conclusion because there is a reasonable probability that the conclu-

sion flows from the proven facts.”

Tose v. First Pennsylvania Bank, N.A., 648 F2d 879, 895 (3d Cir), cert den, 454 US

893 (1981), abrogated on other grounds by Griggs v. Provident Consumer Discount

Co., 459 US 56, 103 S Ct 400, 74 L Ed 2d 225 (1982).

598 State v. Jesse

that Callum’s testimony was not helpful because it lacked

a sufficient nexus to defendant’s theory of defense that his

apparent admissions to S and the deputies were not actual

confessions of guilt. The state argues that that ruling

involved an exercise of discretion. Defendant disagrees; he

asserts that the ruling was based on an erroneous relevance

determination that is entitled to no deference. As we now

explain, we agree with defendant that, properly understood,

the trial court’s ruling is subject to review for legal error.

The parties’ disagreement about the governing

standard of review is understandable, because this court

has not always clearly and consistently articulated the stan-

dard under which it reviews helpfulness rulings. In State v.

Rogers, 330 Or 282, 312, 4 P3d 1261 (2000), this court stated

that the decision whether to admit evidence under OEC

702 can present a pure question of law (such as whether an

expert is qualified or whether proffered testimony is within

the scope of a witness’s expertise), or it can have discretion-

ary aspects, but the court did not explore the nature of the

helpfulness inquiry. In Gherasim, which did involve review

of a helpfulness ruling, this court stated that, if a correct

application of law allows for more than one choice, we review

the exclusion of expert testimony under OEC 702 for abuse

of discretion; otherwise we review such a ruling for errors

of law. 329 Or at 198. However, the court in Gherasim did

not expressly identify the standard of review that it applied

in holding that the trial court had erred in excluding the

expert testimony that the defendant had proffered.

In Middleton, the court suggested that a helpful-

ness determination can involve an exercise of discretion

where the challenge to expert testimony focuses on a jury’s

assumed level of understanding of the evidence before it. See

Middleton, 294 Or at 437 (“[T]here is no bright line separat-

ing issues within the comprehension of the jurors from those

that are not. Generally the admission of expert testimony is

within the discretion of the trial court.”). In other decisions,

this court has discussed the role that discretion can play

in deciding whether expert testimony would assist the jury

in understanding the evidence. See, e.g., State v. Stringer,

292 Or 388, 394, 639 P2d 1264 (1982) (although discretion

can play a role in helpfulness determination, discretion is

Cite as 360 Or 584 (2016) 599

inapplicable where jury lacks expertise to understand evi-

dence without assistance); Yundt, 259 Or at 258. In Yundt,

the court explained:

“There are situations * * * where a jury clearly is not

equally well qualified and needs help to find the truth.

There are also situations where a jury clearly is equally

qualified without help from opinion testimony such as

offered here. It is the area between the clearly qualified

and the clearly unqualified where the trial judge should be

granted a certain latitude of decision in excluding or receiv-

ing expert opinion testimony.”

Id. at 259. In short, this court’s prior decisions discussing a

discretionary standard have involved the question whether

proffered expert testimony would help the jury comprehend

the evidence. And, those decisions have confined the role of

judicial discretion to circumstances involving factual issues

neither clearly within, nor beyond, the jury’s assumed level

of understanding.

We conclude that the state’s challenge and the trial

court’s ruling in this case did not implicate such an exercise

of discretion. As noted, at the outset, the trial court ques-

tioned whether Callum’s testimony related to a fact in issue.

As its colloquy with counsel ensued, the court ultimately con-

cluded that the evidence was not helpful because “[t]here’s

no nexus between [the adjustment disorder] diagnosis and

the defense in this case.” We understand that statement, in

the context of the parties’ arguments, to mean that the court

excluded Callum’s testimony because it did not think that

that testimony sufficiently related to the fact issue for which

defendant proffered it; that is, whether defendant’s admis-

sions were actual confessions of guilt. Stated differently, the

court in effect concluded that defendant’s proffer was insuf-

ficient to permit the jury reasonably to infer the conditional

fact that his admissions were not actual confessions and,

therefore, defendant had failed to establish its relationship

to the ultimate factual issue of whether he acted with a cul-

pable mental state.

Because that inquiry—like any other relevance

inquiry—leads to a single correct answer, we review the

court’s ruling for error of law. See Rogers, 330 Or at 312 (“If

600 State v. Jesse

there is only one legally correct outcome, then ‘discretion’ is

an inapplicable concept.”); see also State v. Barone, 329 Or

210, 237, 986 P2d 5 (1999), cert den, 528 US 1086 (2000)

(court reviews relevance ruling for legal error); Delgado v.

Souders, 334 Or 122, 135, 46 P3d 729 (2002) (reviewing

for legal error ruling that evidence was insufficient to sup-

port inference for which it was proffered).8 We now consider

defendant’s proffer in this case through that lens.

III. APPLICATION

Again, defendant proffered Callum’s testimony to

support an inference that defendant’s adjustment disor-

der contributed to an overreaction to accidentally touch-

ing M that, in turn, contributed to his making admissions

that were not actual confessions of guilt. Defendant cor-

rectly asserts that so-called false (or unreliable) confession

defenses involve explaining behavior that, for most layper-

sons, might appear to be counterintuitive. Thus, expert tes-

timony, if adequately grounded in specialized knowledge,

can help a jury better understand such behavior. Here,

Callum’s qualifications as an expert witness are not in dis-

pute, and the state does not challenge the foundation for her

testimony that defendant had an adjustment disorder that

caused him to ruminate obsessively, subjected him to a high

level of distress, and limited his coping skills. It is also true

that Callum testified that whether defendant had confessed

out of distress was within the realm of possibility.

The difficulty is that Callum’s testimony demon-

strated only defendant’s premises (that he was distressed,

had poor coping skills, and obsessively ruminated), and

not the inference that he wanted the jury to draw (that dis-

tressed people with poor coping skills who obsessively rumi-

nate may make admissions that are not actual confessions

of guilt). Unlike the expert in Middleton, Callum did not tes-

tify that defendant’s adjustment disorder was of a sort that

has been observed by experts to influence a person to make

admissions that were not confessions of guilt. Cf. Middleton,

294 Or at 436 (expert’s testimony that victim’s behavior was

typical of most victims could help jury better assess victim’s

8

The trial court did not base its ruling on OEC 403, nor, in light of our

ground of decision, do we need to address the application of that rule in this case.

Cite as 360 Or 584 (2016) 601

credibility by explaining her superficially bizarre behavior).

Nor, analogously to the expert testimony in Gherasim, did

Callum testify that defendant’s disorder actually influenced

his statements. Cf. Gherasim, 329 Or at 198 (testimony that

victim suffered from dissociative amnesia, which caused her

to be confused and unable to recall what had occurred on

night she was assaulted, would have been helpful to jury).

And, defendant did not seek to prove the conditional fact—

that his adjustment disorder influenced his admissions—by

other means. For instance, defendant did not testify that he

admitted the facts he did because he was obsessively rumi-

nating or was unable to cope.

We do not mean to suggest that evidence of the

type that this court concluded was helpful in Middleton

and Gherasim is necessary in every case where psycholog-

ical profile evidence is proffered to support an inference

that the defendant’s admissions were not true confessions.

Otherwise qualified expert testimony that a defendant’s

psychological profile can produce a false confession, when

coupled with evidence of indicia that a fact finder could use

to determine whether the defendant’s mental disorder actu-

ally contributed to his or her making a false confession, also

can be helpful to a jury. See, e.g., People v. Kowalski, 492

Mich 106, 132, 821 NW2d 14, 31 (2012) (where, in apply-

ing Michigan’s identically worded version of OEC 702, court

held that psychological profile evidence was helpful to jury

because expert proposed to show that “[interaction] between

defendant and [police] ‘was consistent with [coerced] inter-

nalized confession’ ”).

Here, however, Callum testified only that, because

of his adjustment disorder, it was within the realm of pos-

sibility that defendant confessed out of stress. She did not

testify that defendant’s disorder can produce confessions

that are not genuine, nor did she provide any indicia that

the jury could use to draw a reasonable inference that his

admissions were not actual confessions. And, defendant did

not proffer any other evidence from which the jury could

have drawn that inference. In sum, because defendant did

not connect the facets of his adjustment disorder with the

conditional fact that he wanted the jury to infer, the jury

would have been left to speculate about the existence of a

602 State v. Jesse

connection between that testimony and the issue of fact

whether defendant touched M with a culpable mental state.

It follows that the court did not err in excluding that testi-

mony on the ground that it would not be helpful to the trier

of fact.9

Although not necessary to our decision, we note

an additional concern with Callum’s pretrial testimony in

relation to the evidence at trial. In particular, key factual

assumptions underlying that testimony were inconsis-

tent with defendant’s own trial testimony. First, Callum’s

testimony, and indeed her diagnosis, hinged on a factual

assumption that defendant testified was false, namely, that

he was plagued by fears that he might inappropriately touch

his children and become a sex offender like certain mem-

bers of his family. As noted, defendant testified that he was

never concerned with that possibility and that he had falsely

told Callum otherwise; he further testified that he did not

tell Callum about the incident that actually precipitated his

seeking therapy—the touching incident—because he was

concerned that she might have to report him to the authori-

ties. Thus, the excluded evidence met defendant’s own testi-

mony coming and going.

Second, Callum’s testimony was based on the

assumption that defendant made admissions to S and the

deputies because of “distress” due to his adjustment disor-

der, but her conclusion that he was “distressed” was based

on his disclosure that he had had thoughts of inappropri-

ately touching his children. That assumption, again, was

inconsistent with defendant’s own testimony. As discussed,

defendant testified that he told S only that he had acciden-

tally touched M and that the signed document that the

9

Cases where defendants have challenged the reliability of their confessions

under the identically worded FRE 702 are consistent with our conclusion. In U.S.

v. Hall, 93 F3d 1337 (7th Cir 1996), and U.S. v. Shay, 57 F3d 126 (1st Cir 1995),

for example, experts were prepared to provide specific testimony to the effect

that the respective defendants’ mental disorders made them more likely to falsely

confess. See Hall, 93 F3d at 1341 (experts would have testified regarding the

defendant’s propensity to falsely confess due to a personality disorder); Shay, 57

F3d at 133 (expert would have testified that the defendant had a mental disorder

that made him a pathological liar and caused him to make self-aggrandizing con-

fession). In those cases, the expert testimony offered more than just abstract psy-

chological profile information, because, in addition, it suggested “how to decide

whether it fit the facts of the case being tried.” Hall, 93 F3d at 1345.

Cite as 360 Or 584 (2016) 603

state offered was forged. With respect to his statements to

the deputies two years after the alleged abuse, defendant

denied being under stress, and he testified that, although

he had said that he had touched his daughter, he had not

confessed to any sexual motive. In short, even if Callum’s

testimony otherwise might have assisted the jury to under-

stand why—if he made them—defendant’s admissions to S

and the deputies were not true confessions,10 the helpfulness

of such testimony to the jury was significantly undermined

by defendant’s acknowledgement that he had not disclosed

to Callum the real reason why he sought therapy, his testi-

mony that he had falsely told her that he had inappropriate

thoughts about touching his children, and his claims that he

had not, in fact, made any admissions that involved inappro-

priate touching at all. In those circumstances, Callum’s tes-

timony had, at best, a confusingly tangential link to defen-

dant’s evidence at trial.11

In sum, we conclude that the trial court did not err

in excluding Callum’s testimony on the ground that it would

not have been helpful to the trier of fact.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is affirmed.

10

Not to put too fine a point on things, but Callum did not explain how defen-

dant’s psychological profile could cause him to make seeming admissions that

were not true confessions of guilt and then deny that he had made any admissions

at all.

11

Of course, defendant’s testimony was not available to the trial court when

it made its pretrial ruling. Irrespective, though, of whether the trial court’s rul-

ing is regarded as (even more) correct in light of the evidentiary record at trial or,

alternatively, potentially erroneous when made but ultimately harmless in light

of the record at trial, the point remains the same here. Key assumptions under-

lying Callum’s testimony were inconsistent with defendant’s trial testimony in

ways that supported the trial court’s pretrial ruling excluding it as unhelpful.