S071185, Opinion — State v. Solano

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# IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,
Respondent on Review,
v.
PLACIDO SALVADOR SOLANO,
aka Placido Salvadorsolano
Petitioner on Review.
(CC 19CR05482) (CA A177959) (SC S071185)

En Banc

On review from the Court of Appeals .*

Argued and submitted January 28, 2025.

Ryan T. O'Connor, O'Connor Weber LLC, Portland,
argued the cause and filed the briefs for petitioner on review.

Kyleigh Gray, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent on review. Also
on the brief were Dan Rayfield, Attorney General, and
Benjamin Gutman, Solicitor General.

DUNCAN, J.

The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for
further proceedings.

\* Appeal from Clackamas County Circuit Court, Todd L. Van Rysselberghe,
Judge. 332 Or App 646, 551 P3d 938 (2024)

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## DUNCAN, J.

On review in this criminal case, we address two
questions. The first is whether the trial court erred in
excluding evidence defendant proffered under OEC 608(1) to
impeach the complainant, A. OEC 608(1) authorizes one wit-
ness to testify about another witness's character for truth-
fulness or untruthfulness, provided that the testimony is in
the form of opinion or reputation testimony. Defendant and A
are cousins, and defendant sought to present several family
members to testify about their opinions that A has a char-
acter for untruthfulness. The family members had known A
most of her life and had had frequent contact with her until
she accused defendant of the charged crimes. The trial court
excluded the witnesses' testimony on the ground that defen-
dant had failed to lay a foundation for it. In doing so, the trial
court applied Court of Appeals case law holding that, for one
witness to provide opinion testimony about another witness's
character for truthfulness or untruthfulness, the witnesses
must have had recent contact. Although defendant's wit-
nesses had had frequent contact with A for most of her life,
they had had little to no contact with A during the three-year
period between her accusations and defendant's trial. Based
on that three-year gap, the trial court held that the witnesses'
contacts with A were too remote and excluded their opinions
about A's character for untruthfulness. The Court of Appeals
affirmed, adhering to its case law that conditions the admis-
sion of OEC 608(1) opinion evidence on recent contacts. State
v. Solano, 332 Or App 646, 651, 551 P3d 938 (2024).

This court has not yet addressed the foundation
requirements for lay witness opinion evidence proffered
under OEC 608(1). Here, based on the text, context, and leg-
islative history of OEC 608(1), we conclude that recent con-
tacts are not a precondition to the admission of such evidence.
Their existence can support, but is not necessarily required
for, the admission of the evidence. As we will explain, lay
opinion evidence proffered under OEC 608(1) is subject to the
foundation requirements set out in OEC 701 for lay opinion
evidence in general; specifically, it must be "(1) [r]ationally
based on the perception of the witness; and (2) [h]elpful to a
clear understanding of [the] testimony of the witness or the

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determination of a fact in issue." In this case, the trial court
erred in applying a recency requirement that is not part of
the OEC 701 foundation requirements. The error was not
harmless because the trial court could have admitted the evi-
dence if it had applied the OEC 701 foundation requirements
and the evidence was relevant to A's credibility, upon which
the state's case depended. Therefore, we reverse the part of
the Court of Appeals' decision that relates to defendant's
OEC 608(1) evidence, reverse the trial court's judgment, and
remand the case to the trial court for further proceedings.

The second question in this case, which we address
because of the possibility that it could arise on remand, is
whether the trial court erred in denying defendant's pretrial
motion to preclude the use of the term "disclosure" to refer to
the allegations against him. Defendant argued that describ-
ing a statement as a "disclosure" implies that the statement
is true and, therefore, constitutes improper vouching. The
trial court denied the motion, and the Court of Appeals
affirmed. Solano, 332 Or App at 655.

Based on the definition of "disclosure" and exam-
ples of how the term is commonly used, we conclude that
describing a statement as a "disclosure" does not necessarily
convey a belief that the statement is true. Therefore, we con-
clude that the trial court did not err in denying defendant's
motion to categorically preclude use of the term. Accordingly,
we affirm the part of the Court of Appeals' decision that
relates to that motion.1

## I. BACKGROUND

Defendant and A are part of a large, extended
family that regularly gathered together when defendant
and A were children. One night in 2008, A's family invited

1 In his petition, defendant challenged the two trial court rulings described
above, as well as the trial court's admission of A's hearsay statements under
OEC 803(18a)(b), which establishes an exception for certain statements by child
declarants. Defendant had objected to the admission of the hearsay statements,
arguing that the OEC 803(18a)(b) exception applies only when the declarant is
a child at the time of trial, which A was not. Defendant renewed that argument
in both the Court of Appeals and this court. But, after defendant filed his brief
in this court, we decided State v. Akins, 373 Or 476, 568 P3d 174 (2025), in which
we held that the exception applies even if the declarant is no longer a child at the
time of trial. Given Akins, we reject defendant's challenge to the admission of A's
hearsay statements without further discussion.

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defendant and his brother, Octavio, to sleep over at their new
apartment, which was not yet fully furnished. At the time,
defendant was 13, Octavio was 11, A was 7, and her sister, J,
was 6. The four children slept on a bedroom floor. The girls
did not report anything unusual about the sleepover that
night or for the next ten years.

In 2018, A and J accused defendant and Octavio
of sexually abusing them at the sleepover. They spoke first
to their mother, who contacted the police. They were ques-
tioned by a police officer and later interviewed by a foren-
sic interviewer. A alleged that defendant and Octavio had
sexually touched her and that defendant had sexually pene-
trated her. J alleged that Octavio had sexually touched her.

In 2019, the state charged defendant with first-
degree rape and first-degree sexual abuse of A, and it
charged Octavio with first-degree sexual abuse of J.2 The
charges against defendant were later severed from those
against Octavio, so that the brothers' cases would be tried
separately. Due in part to the COVID-19 pandemic, defen-
dant's trial was not held until 2021. Octavio's trial was to
follow.3

Defendant filed a pretrial motion to preclude the
use of the term "victim" to refer to A and J and the use of
the term "disclosure" to refer to their allegations of abuse.
Defendant's position was that use of the terms would con-
stitute vouching, which is the expression of one's personal
opinion about the credibility of another's statement and is
prohibited under Oregon law. See State v. Sperou, 365 Or
121, 128-30, 442 P3d 581 (2019) (defining vouching and
describing rules prohibiting witnesses and lawyers from
vouching); see also id. at 139 (holding that trial court erred
in denying the defendant's motion to prohibit witnesses' use
of the term "victim" to refer to the complainant and oth-
ers who had accused the defendant of sexual abuse where
the accusations constituted the only evidence of the sexual

2 Although A had reported that Octavio had sexually touched her, the state
did not charge him with any crimes against her. It charged him only with sexual
abuse of J.

3 Although the brothers' cases were tried separately, during defendant's trial,
the parties and their witnesses referred to the allegations against Octavio because
they arose out of the same sleepover and were reported and investigated together.

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abuse). The trial court granted the motion as to the term
"victim," but denied it as to the term "disclosure."

At defendant's trial, the state called A and J as wit-
nesses, and they testified about the night of the sleepover.
A testified that defendant had sexually touched her. J testi-
fied that she did not hear defendant do anything that night,
but that Octavio had sexually touched her (J). In addition to
A and J, the state called witnesses who relayed the out-of-
court statements that A and J had made about the alleged
crimes, specifically, A and J's mother, the police officer who
questioned them, and the forensic interviewer. The state
also presented a recording of A's forensic interview and the
testimony of a police officer who attended the interview.

The prosecutor used the term "disclosure" during
his opening statement and closing argument and while
questioning the police officers. The officers did not use the
term themselves. The forensic interviewer used the term
once when generally describing her office's method for con-
ducting interviews.

Defendant's defense was that A and J had fabricated
their allegations in order to secure visas available to crime
victims. Both defendant and Octavio testified and denied
the allegations. In addition, three of defendant's cousins
and one of his sisters testified about how the extended fam-
ily interacted and that it was common for all the cousins to
watch movies together or sleep in the same room at family
gatherings. The three cousins testified that defendant had
always been sexually appropriate during those gatherings.
The defense also presented several witnesses who testified
that, prior to A and J's allegations, A and J's mother had
spoken frequently about people she knew who had received
crime-victim visas and how she hoped something would
happen to her family so that they would qualify for such
visas.

At trial, defendant sought to have seven witnesses
testify, pursuant to OEC 608(1), about their opinions of A's
character for untruthfulness. The prosecutor objected, and
the parties litigated the matter outside the presence of the
jury. The prosecutor argued that defendant had failed to lay

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a foundation for the witnesses' testimony. He asserted that,
under Court of Appeals case law, defendant had to show that
the witnesses had recent contact with A and that, because
the witnesses had little to no contact with A in the preced-
ing three years, defendant could not satisfy that "recency"
requirement.4

Defense counsel made an offer of proof. He first
called one of defendant's sisters, Carmella, as a witness.
Carmella testified that she had known A for over 15 years,
had had frequent conversations with her, and had heard her
lie on multiple occasions. But, in the three years between
when A made her allegations against defendant and the
trial, Carmella had had contact with A only once. The trial
court excluded Carmella's opinion that A was untruthful,
ruling that, although there was a time when Carmella had
had frequent contact with A, it could not find that the "rule
about recency" was satisfied.

Defense counsel then informed the trial court that
another one of defendant's sisters, Rafaela, would testify
similarly, and the trial court excluded her testimony for
the same reason, stating that her contacts with A were not
"recent enough."

Finally, defense counsel called defendant's aunt,
Angelita, who also testified that she had known A for more
than 15 years and had spent time with her at family gather-
ings; in addition, she had worked with A. Angelita testified
that, over the years, she had heard A lie about family and
work matters. Angelita had had "a lot" of contact with A, but
not in the three years before trial. Based on the three-year
gap, the trial court ruled that Angelita's contacts failed to
satisfy the recency requirement. Defense counsel informed
the court that the remaining four witnesses had similar
contacts with A, and that, in light of the trial court's ruling,
he would not call them as witnesses in his offer of proof.

In their closing arguments, the parties contended
that the case turned on whether the jurors believed A's

4 The state based its argument about the recency requirement on State v.
Caffee, 116 Or App 23, 840 P2d 720 (1992), rev den, 315 Or 312 (1993), and its
progeny: State v. Maxwell, 172 Or App 142, 18 P3d 438, rev den, 332 Or 559 (2001),
and State v. Paniagua, 268 Or App 284, 341 P3d 906 (2014).

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statements. The prosecutor told the jurors that "[t]his case
hinges on whether you believe the statements of [A]," and
he encouraged them to consider both A's in-court testimony
and her out-of-court statements to others. Defense counsel
highlighted inconsistencies in A's statements and the pos-
sibility that she had fabricated the allegations to secure a
visa.

The jury found defendant not guilty of the rape
charge, but guilty of the sexual abuse charge. Defendant
appealed.

On appeal, defendant assigned error to the trial
court's exclusion of his witnesses' testimony about A's char-
acter for untruthfulness. Defendant asserted that the wit-
nesses' testimony had

"probative value as to A's testimony at trial despite the gap
in contact. The state would have been free to highlight the
three-year gap in contact during cross-examination. The
jury should have been permitted to determine the weight
to give the character witnesses' testimony."

Defendant further asserted, in the alternative, that even if
the trial court did not err in excluding the witnesses' tes-
timony as to A's character at the time of trial, "it erred by
failing to evaluate whether the testimony could be used to
impeach A in her role as a hearsay declarant." Defendant
contended that, because the state had introduced A's initial
allegations against him, his witnesses could testify about
her character for truthfulness at the time she made the alle-
gations, which was three years before the trial. See OEC 806
(authorizing impeachment of hearsay declarants).

Relying on State v. Maxwell, 172 Or App 142, 18
P3d 438, rev den, 332 Or 559 (2001), the Court of Appeals
affirmed the trial court's exclusion of the witnesses' testi-
mony about A's character at the time of trial. Solano, 332 Or
App at 651. In Maxwell, the Court of Appeals ruled that

"[t]he admissibility of evidence of prior character to prove
present character depends on whether, in the discretion of
the trial court, the contacts on which the opinion is based
are frequent enough and recent enough to have probative
value to the testimony given in court."

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172 Or App at 154-55 (emphasis in original). Applying
Maxwell, the Court of Appeals held that the trial court had
not abused its discretion in concluding that the witnesses'
contacts with A were not sufficiently close in time to trial
for their opinions regarding A's character to be probative.
Solano, 332 Or App at 651.

The Court of Appeals then held that defendant had
not preserved his alternative argument that the witnesses'
testimony was admissible to impeach A as a hearsay declar-
ant. Id. at 654. On that point, Judge Pagan dissented. Id.
at 658. He would have held that defendant had preserved
the argument and that the trial court had erred in exclud-
ing the witnesses' testimony regarding A's character for
truthfulness at or around the time of her initial allegations
against defendant "because it is the recency in relation to the
statement being admitted that is important for the fact-find-
er's consideration[.]" Id. (emphasis in original).

Defendant also assigned error to the trial court's
denial of his motion to prohibit the use of the term "disclo-
sure" to refer to A and J's allegations of abuse, relying on
Sperou, in which this court held that, in the context of that
case, witnesses' use of the term "victim" to refer to the com-
plainant and others who had accused the defendant of sexual
abuse constituted vouching. 365 Or at 132. Defendant argued
that "disclosure" has "the connotation of exposing previously
hidden but truthful information," and, therefore, "[t]he jury
would understand the use of the word to suggest that there
was something factual to divulge and, thus, as a comment on
the credibility of the accuser and of what was being revealed."

The Court of Appeals rejected defendant's argument
about the term "disclosure," reasoning that "[t]he term itself
does not express that the disclosed information is necessarily
true or false. Rather, it suggests that the information was not
previously shared." Solano, 332 Or App at 655. Accordingly,
the court "decline[d] to extend [Sperou's] holding to the term
'disclosure' in the context that it is presented to us here." Id.5

On defendant's petition, we allowed review.

5 The Court of Appeals left open "the possibility that the term 'disclosure'
may, in some instances, constitute improper vouching." 332 Or App at 655 n 6.

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## II. ANALYSIS

On review, defendant renews his challenges to the
trial court's ruling that he had failed to lay a foundation for
his witnesses' testimony about A's character for untruthful-
ness and its ruling denying his pretrial motion to preclude
the use of the term "disclosure" to refer to the allegations
against him. We address those rulings in turn.

### A. OEC 608(1) Evidence

#### 1. Parties' arguments

Defendant argues that, in excluding his witnesses'
testimony about A's character for untruthfulness, the trial
court applied "the incorrect foundational test under OEC
608(1)[.]" He contends that the trial court should have applied
the foundation requirements for lay opinion evidence under
OEC 701, which are that the evidence must be "(1) [r]ation-
ally based on the perception of the witness; and (2) [h]elpful
to a clear understanding of [the] testimony of the witness or
the determination of a fact in issue." He further contends
that the witnesses' opinions satisfied those requirements
because (1) the witnesses had "long and close familial rela-
tionships" with A, and (2) A's credibility was "the central
issue in the case." According to defendant, "[t]he three-year
lapse in contact went to the weight of their opinions. It was
grist for cross-examination, not grounds to exclude their
opinions for lack of foundation."

The state agrees with defendant that, when deter-
mining whether a party has laid a foundation for lay opinion
evidence about a witness's character for truthfulness, prof-
fered under OEC 608(1), a trial court should apply the two
requirements set out in OEC 701. But the state contends
that the trial court properly concluded that defendant's wit-
nesses "lacked a current basis for their opinion testimony
concerning A's character for truthfulness at the time of
trial." (Emphasis in original.) That is because, according to
the state, recent contacts are required.

#### 2. Standard of review

Before analyzing OEC 608(1), we address the
standard of review. In the past, this court has made broad

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statements about how we review evidentiary rulings, includ-
ing, for example, that "[w]e review the decision to admit or
exclude [character] evidence for an abuse of discretion."
State v. Walton, 311 Or 223, 232, 809 P2d 81 (1991); see also
State v. Caffee, 116 Or App 23, 27, 840 P2d 720 (1992) (cit-
ing Walton when reviewing the exclusion of opinion evidence
proffered under OEC 608(1)). But, in State v. Rogers, 330
Or 282, 310-13, 4 P3d 1261 (2000), this court undertook an
effort to prescribe, with greater precision, how appellate
courts are to review trial court rulings.

We first noted that we had "previously explained
that, with respect to many evidentiary decisions, trial courts
possess broad discretion, as long as they exercise discretion
within the range of legally permissible decisions." Id. at 310.
We then observed that some evidentiary rulings are based
on multiple subsidiary determinations, including factual
and legal determinations. Id. at 312. We explained that our
standard of review varies for different types of determina-
tions. Id. We review factual findings to determine whether
they are supported by any evidence in the record. Id. at 313
n 9. We review legal conclusions for legal error and defer to
exercises of discretion that are within the range of legally
permissible outcomes:

"[W]e first must review evidentiary rulings without defer-
ence to determine whether proper principles of law were
applied correctly. Next, and also without deference, we must
determine whether application of those principles leads to
only one correct outcome. If there is only one legally correct
outcome, and the trial court arrived at that outcome, it did
not err; conversely, if the trial court arrived at a different
outcome, it did err. Only if we determine that the applica-
tion of the correct legal principles leads to more than one
correct outcome do we continue to review whether the trial
court abused its discretion in choosing an outcome. If the
trial court's decision was within the range of legally correct
discretionary choices and produced a permissible, legally
correct outcome, the trial court did not abuse its discretion."

Id. at 312. Consequently, review of a trial court's ruling
regarding the admission of evidence may require applica-
tion of multiple standards of review, depending on the types
of determinations that the trial court had to make. Id.

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We noted that such an approach is clearer than
reviewing all evidentiary decisions for abuse of discretion
and treating legal errors as abuses of discretion. Id. at 312
n 8. We explained:

"To say that a trial court necessarily abuses its discretion
if it applies the wrong principle of law or incorrectly applies
the correct rule of law leads to the same result. However, the
formulation that we have set out is more straightforward and
correctly distinguishes that we do not defer to trial courts'
legal determinations. To say that an appellate court should
review the legal aspects of an evidentiary ruling for abuse
of discretion and that a trial court abuses its discretion if
it makes a legal error unnecessarily complicates a simple
principle, i.e., that appellate courts review questions of law
anew without deference to the decisions of trial courts."

Id.

Thus, under Oregon law, when reviewing a trial
court's evidentiary ruling, we must first identify and clas-
sify the determinations underlying the ruling. If a determi-
nation is a factual finding, our task is to determine whether
it is supported by any evidence in the record. Id. at 313 n 9.
If it is a determination about what legal principles apply
or how those principles should be applied, we review it for
errors of law. Id. at 312. If the legal principles were cor-
rectly identified and correctly applied, we then determine
whether application of the principles leads to only one cor-
rect outcome. Id. If it does, then we determine whether the
trial court reached that outcome. Id. But if it does not, we
determine whether the trial court's outcome was within the
range of permissible outcomes. Id.6

In keeping with that approach, when determining
whether we review a legal ruling for errors of law or abuse of

6 In this way, the formulation set out in Rogers differs from the approach
taken by federal courts, which review evidentiary rulings for abuse of discretion
and treat legal errors as abuses of discretion. As we have noted, "federal appel-
late courts review all evidentiary rulings for abuse of discretion." State v. Blue,
374 Or 439, 456-57, 580 P3d 826 (2025) (citing General Elec Co v. Joiner, 522 US
136, 141-42, 118 S Ct 512, 139 L Ed 2d 508 (1997) (emphasis in Blue)). But, even
under that approach, "an erroneous construction of the law would meet that stan-
dard, and no federal court has ever held that a district court's error as to a matter
of law is not an abuse of discretion." Blue, 374 Or at 457 (internal quotation marks
omitted). Regardless, "this court is not bound by the standard used to review an
evidentiary rule's federal counterpart." Id.

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discretion, we have looked to whether the proper principles
of law were applied. For example, in Rogers, we held that the
trial court had erred in ruling that an expert was not quali-
fied to testify about a particular matter because he lacked a
medical degree. Id. at 316-17. We ruled that "we do not assume
a disqualification from the lack of a particular educational or
professional degree." Id. at 316. Instead, proper application of
OEC 702, which governs expert testimony, "requires assess-
ment of the particular qualifications of each witness." Id.

If the proper principles of law were applied, we have
looked to whether their application leads to only one correct
outcome. We have held, for example, that whether evidence
is relevant, whether a hearsay statement qualifies as an
excited utterance, and whether a party presented sufficient
evidence from which a jury could find a fact, are questions
for which there is only one correct answer and, therefore,
we review rulings on those questions for errors of law. See
State v. Titus, 328 Or 475, 481, 982 P2d 1133 (1999) (conclud-
ing that a determination of relevance under OEC 401 "can
yield only one correct answer; evidence is either relevant or
it is not"); State v. Cunningham, 337 Or 528, 538, 99 P3d
271 (2004) (concluding that "a statement is either an excited
utterance under OEC 803(2) or it is not"); State v. Blue, 374
Or 439, 457, 580 P3d 826 (2025) (concluding that "whether
a party has raised a 'genuine question *** as to the authen-
ticity of the original' under OEC 1003(1) is a question that
we review for legal error, because there is only one correct
answer: either the opponent pointed to evidence sufficient
to permit a reasonable juror to find that the original is not
what the proponent claims it to be, or there is no evidentiary
basis for the jury to find that the original is inauthentic").

Here, defendant argues that the trial court did not
apply the correct foundational test for OEC 608(1) evidence.
In other words, he argues that the trial court did not apply
the correct legal principles when determining whether he
had laid a foundation for his OEC 608(1) evidence because
it applied a recency requirement. Defendant's argument,
and the trial court's ruling, require that we determine the
foundation requirements for OEC 608(1) evidence, which is
a question of law that we review for errors of law.

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3\. Foundation requirements for OEC 608(1) evidence

OEC 608(1) authorizes the admission of evidence of
a witness's character for truthfulness or untruthfulness. It
provides:

"(1) The credibility of a witness may be attacked or
supported by evidence in the form of opinion or reputation,
but:

"(a) The evidence may refer only to character for truth-
fulness or untruthfulness; and

"(b) Evidence of truthful character is admissible only
after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise."7

OEC 608(1) is an exception to the general rule that evidence
of a person's character may not be used to prove that the
person acted in conformity therewith. OEC 404(2) (stating
general prohibition and exceptions); OEC 404(2)(c) (estab-
lishing exception for character evidence covered by other
rules, including OEC 608); OEC 608 Commentary (1981)
(noting that OEC 404 "prohibits the admission of character
evidence to prove that a person acted in conformity there-
with, subject to several exceptions," including "the admis-
sion of character evidence touching a witness's credibility,"
and that OEC 608 "develops that exception"). Under OEC
608(1), evidence of a witness's character is limited to opinion
or reputation evidence.

Whether a party has laid a foundation for evidence
relates to the admissibility of the evidence and, therefore, is
a matter for the trial court. See OEC 104(1) (providing that
"preliminary questions concerning *** the admissibility of

7 OEC 608 has two subsections. Only OEC 608(1) is at issue in this case. OEC
608(2) provides:

"Specific instances of the conduct of a witness, for the purpose of attack-
ing or supporting the credibility of the witness, other than conviction of crime
as provided in [OEC 609], may not be proved by extrinsic evidence. Further,
such specific instances of conduct may not, even if probative of truthfulness
or untruthfulness, be inquired into on cross-examination of the witness."

Thus, OEC 608(2) prohibits a party from attacking or supporting the credibility
of a witness either by introducing extrinsic evidence of specific instances of the
witness's conduct or by cross-examining the witness about such instances.

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evidence shall be determined by the court"). The foundation
requirement exists to help ensure that evidence presented to
factfinders is the type that they could rely on. Accordingly,
when determining whether a party has laid a foundation for
evidence, the trial court's role is not to determine whether it
would rely on the evidence, but rather whether a factfinder
could rely on it. That is because, whether a party has laid
a foundation for evidence affects whether the evidence can
even be presented to the factfinder. Once the evidence is pre-
sented, the parties are still able to present other evidence
and make arguments about whether the factfinder should
rely on the evidence. Thus, when determining whether a
party has laid a foundation for evidence, a trial court plays
a gatekeeping role; its task is to keep out evidence that a
factfinder could not rely on to make the finding that the evi-
dence is being proffered to prove.8

OEC 608(1) does not specify what a party must show
to lay a foundation for evidence about a witness's character
for truthfulness or untruthfulness. But the text, context,
and legislative history of the rule provide guidance. See
Crimson Trace Corp v. Davis Wright Tremaine LLP, 355 Or
476, 485, 326 P3d 1181 (2014) (when construing the Oregon
Evidence Code, which was adopted by the legislature, "our
task is to determine what the legislature intended, using
our traditional analytical framework, which focuses on the
statute's text, context, and any helpful legislative history").

We begin with the text. By its terms, OEC 608(1)
concerns evidence of a witness's "character for truthfulness
or untruthfulness." (Emphasis added.) "'Character' gener-
ally indicates 'a person's disposition or propensity towards
certain behavior, such as honesty,' *** or 'a person's tendency
to act in a certain way in all varying situations of life.'" State
v. Marshall, 312 Or 367, 371-72, 823 P2d 961 (1991) (quoting
State v. Carr, 302 Or 20, 25, 725 P2d 1287 (1986). The fact
that "character" refers to a person's disposition or propensity

8 Even if a party has laid a foundation for evidence, it may still be excluded
under other rules of evidence, including OEC 403, which provides: "Although
relevant, evidence may be excluded if its probative value is substantially out-
weighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay or needless presentation of cumula-
tive evidence."

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or the person's tendency to act in a certain way indicates
that an opinion about a person's character must be based
on information sufficient to support an inference about the
person's "disposition"-that is, "the inclination, tendency, or
power of anything to act in a certain manner under given
circumstances," Webster's Third New Int'l Dictionary 655
(unabridged ed 2002)-or "propensity"-that is, "a natural
inclination : innate or inherent tendency," Webster's at 1817.
Because "character" is intended to capture a trait that con-
tinues over time, information about a single instance of con-
duct may be insufficient to support an inference about a per-
son's character. But it is difficult to generalize about what
types of information are sufficient to support an inference
about a person's character. As the legislative commentary
to the Oregon Evidence Code states, "If character is defined
as the kind of person one is, then account must be taken of
the various ways to develop a picture of character." OEC 405
Commentary (1981) (so noting in connection with OEC 405,
which governs methods of proving character). The nature,
frequency, and recency of one person's contacts with another
person are all relevant to whether the first person has a suf-
ficient basis to support a reasonable inference about the sec-
ond person's character. The question in this case is whether
recent contacts are required to support such an inference.

The text of OEC 608(1) does not require recent con-
tacts. It does not limit character evidence about a witness's
truthfulness or untruthfulness to evidence based on events
within a certain number of years, even though the legisla-
ture knows how to limit evidence in that way. See OEC 609
(authorizing impeachment of a witness through evidence of
certain criminal convictions, provided that the conviction or
release from confinement occurred within the preceding 15
years).

The commentary to OEC 608(1) makes clear that
the scope of the rule is narrow. The commentary states that
"inquiry is limited to character for veracity rather than
character generally. The result is to sharpen relevancy and
reduce surprise, waste of time and confusion." OEC 608
Commentary (1981). Thus, the commentary reflects the leg-
islature's belief that evidence of a witness's character for

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truthfulness or untruthfulness is relevant and that it can be
introduced in the form of opinion or reputation testimony-
which will likely be brief-without interfering with the fair-
ness or efficiency of a trial.

The commentary also states that OEC 608 is based
on Federal Rule of Evidence 608 (FRE 608). Id. Prior to the
enactment of FRE 608, evidence of a witness's character for
truthfulness or untruthfulness had to be presented in the
form of reputation evidence. FRE 608 expanded the per-
missible forms of evidence about a witness's character for
truthfulness or untruthfulness to include opinion evidence.
Regarding the foundation requirements for opinion evidence
proffered under FRE 608, a leading treatise explained that
FRE 608 does not require proof of frequent or recent con-
tacts as a precondition to the admission of the evidence:

"Witnesses may now be asked directly to state their
opinion of the principal witness' character for truthful-
ness and they may answer for example, 'I think X is a liar.'
The rule imposes no prerequisite conditioned upon long
acquaintance or recent information about the witness; cross-
examination can be expected to expose defects of lack of
familiarity and to reveal reliance on isolated or irrelevant
instances of misconduct or the existence of feelings of per-
sonal hostility towards the principal witness."

3 Weinstein's Evidence I 608[04], at 608-20 (1978) (empha-
sis added), quoted in United States v. Lollar, 606 F2d 587,
589 (5th Cir 1979). To be clear, the treatise was not say-
ing that the frequency or recency of contacts is irrelevant. It
was simply saying that neither frequent nor recent contacts
are required for admission. In doing so, it was recognizing
that opinions about a person's character can be based on
different types of contacts. A person may have had frequent
contact with a witness years ago, but those contacts may
still be sufficient to support a reasonable inference about
the witness's character. That is because a person's character
tends to endure over time; it is a longer-term attribute. As
another court has observed, "honesty is more like climate
than like weather: it is a stable attribute even though sub-
ject to daily variations." State v. Tedder, 403 F3d 836, 839
(7th Cir 2005). Thus, if a person has an opinion about a wit-
ness's character for truthfulness or untruthfulness based on

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close and frequent contacts years before the witness testi-
fies at trial, that opinion may be admissible to prove the
witness's character at the time of trial. See id. (affirming
trial court's admission, under FRE 608(a), of the defendant's
brothers' testimony that they had a low opinion of the defen-
dant's honesty, even though the brothers had not had con-
tact with the defendant for more than a decade, reasoning
that "[t]he long break in family relations was a subject for
cross-examination and argument by counsel"); see also OEC
609 (authorizing impeachment of a witness based on certain
convictions after the passage of up to 15 years from the con-
viction or release from confinement, whichever is later).

The fact that the Oregon legislature based OEC 608
on FRE 608 indicates that the legislature did not intend to
condition the admission of opinion evidence on frequent or
recent contacts, but instead intended to allow trial courts to
determine, on a case-by-case basis, whether a person's con-
tacts with a witness provide a rational basis for the person's
opinion about the witness's credibility.

That understanding is further supported by OEC
701, which governs lay opinion testimony in general. See
PGE v. Bureau of Labor and Industries, 317 Or 606, 611,
859 P2d 1143 (1993) (stating that the context of a statute
includes related statutes); see also State v. Lawson/James,
352 Or 724, 751, 291 P3d 673 (2012) (stating that the rules
of evidence "articulate minimum standards of reliability
intended to apply broadly to many types of evidence" and
applying several rules to the admission of eyewitness identi-
fications, including OEC 602, OEC 701, and OEC 403).

As relevant here, OEC 608(1) authorizes the admis-
sion of opinion evidence about a witness's character for truth-
fulness or untruthfulness, and opinion evidence is governed
by two other rules: OEC 701, which applies to lay opinion
evidence, and OEC 702, which applies to expert opinion tes-
timony. Because this case concerns lay opinion evidence, we
look to OEC 701, which sets out foundation requirements
for such evidence. See Lawson/James, 352 Or at 753-56
(explaining that an eyewitness identification "can be a kind
of lay opinion testimony" and is subject to the foundation
requirements set out in OEC 701).

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OEC 701 provides:

"If the witness is not testifying as an expert, testimony
of the witness in the form of opinions or inferences is lim-
ited to those opinions or inferences which are:

"(1) Rationally based on the perception of the witness;
and

"(2) Helpful to a clear understanding of [the] testi-
mony of the witness or the determination of a fact in issue."

OEC 701 "provides a liberal standard for the admissibility
of lay opinion." State v. Davis, 351 Or 35, 54, 261 P3d 1197
(2011) (internal quotation marks omitted).

The first requirement for a lay opinion is that it be
"[r]ationally based on the perceptions of the witness." OEC
701(1). That requirement has two components. Davis, 351 Or
at 54. First, the opinion must be based on the witness's own
perceptions. That component is related to the requirement,
set out in OEC 602, that lay witnesses have personal knowl-
edge of the matters to which they testify.9 Thus, to provide
an opinion, a lay witness must have personal knowledge of-
that is, must have perceived-the facts on which the opinion
is based. Second, the opinion must be "rationally based" on
those perceived facts. "The rational connection requirement
means only that the opinion or inference advanced by the
witness is one which a normal person could form on the basis
of the observed facts." Davis, 351 Or at 55; see also Laird C.
Kirkpatrick, Oregon Evidence § 701.03[1], Art VII, 617 (7th
ed 2025) (the requirement "means that the opinion must be
one that a person could reasonably deduce from the perceived
facts"). The opinion or inference "need not be the necessary
or even the most probable one." Davis, 351 Or at 59.

The second requirement for lay opinion evidence is
that the opinion be "helpful" to either a "clear understanding
of [the] testimony of the witness" or "the determination of a
fact in issue." OEC 701(2). This court has not explained the

9 OEC 602 provides:

"Subject to the provisions of [OEC 703, governing bases of expert opinion
testimony], a witness may not testify to a matter unless evidence is intro-
duced sufficient to support a finding that the witness has personal knowledge
of the matter. Evidence to prove personal knowledge may, but need not, con-
sist of the testimony of the witness."

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meaning of "helpful" in OEC 701, but we have held that lay
opinion evidence was helpful when it was relevant to a fact
at issue in a case. See Davis, 351 Or at 57 (holding that lay
witness opinion testimony regarding the victim's appearance
was helpful because it increased the probability of a fact at
issue); see also id. at 55 (stating that "'[t]he concept of “help-
fulness" in OEC 701 subsumes a relevancy analysis"" (quot-
ing State v. Wright, 323 Or 8, 17, 913 P2d 321 (1996)). We have
also indicated that lay opinion evidence may not be "helpful"
for OEC 701 purposes if the jury is "equally capable of mak-
ing the same inference." Lawson/James, 352 Or at 756.10

This court has applied OEC 701 in several cases,
including State v. Lerch, 296 Or 377, 385, 677 P2d 678 (1984);
Davis, 351 Or at 54; and Lawson/James, 352 Or at 754. Our
applications of the rule shed additional light on the rule's
requirements for lay opinion testimony.

In Lerch, this court affirmed the admission of a
police officer's testimony that a stain on the defendant's
kitchen floor was blood. 296 Or at 384-85. The officer was
testifying as a lay witness, and we held that the officer's
opinion was "'rationally based' upon the mere fact that he
was a human being of the age of reason who could see." Id.
at 384. He was merely giving a "shorthand description" of
what he saw. Id. We further held that the officer's opinion
was helpful because it would aid the jury in determining
whether, as the state alleged, the defendant had killed the
victim in his kitchen. Id.

In Lerch, this court also affirmed the admission of a
witness's testimony that he had smelled the odor of decompos-
ing human flesh coming from a dumpster. Id. at 385-87. As
a basis for his opinion regarding the smell, the witness had
testified that he had served in an infantry unit 30 years ear-
lier, during which time he had seen and smelled decomposing

10 The Court of Appeals has construed the "helpfulness" requirement simi-
larly. See State v. Culver, 345 Or App 146, 151, 582 P3d 206 (2025) (holding that a
witness's opinion that the defendant had not acted intentionally was not "helpful"
for the purposes of OEC 701 because the witness "had no unique insight into
defendant's mental state or whether defendant's conduct was 'intentional,'" as
that term is defined by statute, and because "the jury could readily assess defen-
dant's conduct based on eyewitness testimony about the factual circumstances
and viewing the video of the incident").

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human bodies. Id. at 385-86. This court held that the wit-
ness's testimony was "rationally based upon his perception in
that he had previously experienced and recognized the smell
of decomposing human flesh." Id. at 387. We acknowledged
that the defendant had argued that there were several rea-
sons to doubt the witness's opinion, but we concluded that
those reasons went to "the weight and not the admissibility
of the opinion." Id. In other words, the reasons could be con-
sidered by the factfinder when determining whether to credit
the opinion.11 We further held that the testimony was helpful
to the determination of a fact at issue, specifically, whether
the defendant had put the victim's body in the dumpster. Id.

In Davis, the defendant was charged with crimes
based on his young daughter's death from a brain hemor-
rhage and sought to present the testimony of a witness,
Payne, whose own daughter had had a brain injury. Payne
was prepared to testify that, days before the victim was in
the defendant's care, the victim looked like Payne's daugh-
ter had looked when she "had pressure on the brain or else
she was dehydrated." Davis, 351 Or at 49. The trial court
excluded the evidence, and this court held that the trial
court had erred. Id. at 59. As to the first OEC 701 require-
ment, we held that Payne's opinion was "rationally based
on her perceptions, in that she had a lifetime of previous
experience with her own child suffering those conditions."
Id. at 57. As to the second OEC 701 requirement, we held
that Payne's testimony was helpful because it was relevant
to a fact at issue in the case. Id. at 59. We explained:

"The state's experts testified that the fatal injuries had
to have been inflicted on the night of [the victim's] death
[June 29]. Payne's testimony that, on June 25, the victim
resembled her child when her child displayed the effects of
a brain injury or was dehydrated was relevant. It increased
the probability, even if only slightly, that the defense
experts were correct and the state's experts incorrect."

Id.

11 The reasons included that the witness had not looked in the dumpster
or notified anyone after detecting the smell, that his opinion was inconsistent
with the probable state of the victim's body according to expert witnesses, that
the dumpster was for the witness's fish market and "any smell would have been
masked by the smell of rotting fish," and "the improbability of identifying a smell
one hadn't sensed in 30 years." Lerch, 296 Or at 386.

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In Lawson/James, this court undertook the task
of establishing a process for determining the admissibility
of eyewitness identifications. We explained that, because a
statement of identification can be "a kind of lay opinion tes-
timony that is based on a number of inferences and assump-
tions made by the witness regarding his or her perceptions,"
courts determining whether such statements are admissible
must apply the requirements set out in OEC 701 for lay opin-
ion evidence. 352 Or at 753-56. Regarding the helpfulness
requirement, we anticipated that, given the likely relevance
of eyewitness identifications to a fact at issue in a case, the
requirement would be "easily satisfied in nearly all cases[.]"
Id. at 756. But we identified a hypothetical situation where
it might not be:

"Consider, for example, the witness who observes a masked
perpetrator with prominently scarred or tattooed hands.
Although those features could be distinctive enough to
provide a rational basis for an inference of identification,
a jury may be equally capable of making the same inference
by comparing the witness's description of those markings
to objective evidence of the actual markings on the defen-
dant. In such cases, the witness's opinion that defendant is
the perpetrator provides the jury with little, if any, addi-
tional useful information. OEC 701 permits lay opinion tes-
timony to be admitted only when the opinion communicates
more to the jury than the sum of the witness's describable
perceptions."

### Id. at 756 (emphases added).

What our cases applying OEC 701 show is that
opinions can be rationally based on distant experiences;
that challenges to opinion evidence can be made on cross-
examination; that, to be helpful, opinion evidence must be
relevant to a fact at issue and must do more than state an
inference that the jury is equally capable of making; and
that some types of opinions, if founded, will almost always
meet the helpfulness requirement. See Lerch, 296 Or at 387
(affirming admission of a witness's opinions about a smell
based on experiences 30 years earlier); id. (noting that the
defendant's points about why a witness's opinion was not
credible went to the weight of the evidence, not its admissi-
bility); id. at 384 (concluding that a witness's opinion about

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a stain was helpful because it related to a fact at issue in the
case); id. at 387 (concluding same as to a different witness's
opinion about a smell); see also Davis, 351 Or at 59 (con-
cluding that an opinion was helpful because it increased,
even if slightly, the probability of a fact at issue); Lawson/
James, 352 Or at 756 (indicating that opinion evidence is not
helpful when a jury is equally capable of making the same
inference); id. (anticipating that founded eyewitness identi-
fications will be helpful in nearly all cases).

This court has not yet addressed whether lay opinion
evidence proffered under OEC 608 is subject to the founda-
tion requirements under OEC 701, which governs lay opinion
evidence in general. But, based on our review of the relevant
rules of evidence, we conclude that it is. As discussed above,
OEC 608 does not set out foundation requirements for opinion
evidence, but OEC 701 does. The rules work together. OEC
608(1) authorizes the use of opinion evidence for a particular
purpose, and OEC 701 sets out foundation requirements for
lay opinion evidence. In addition, the legislative history of
OEC 608, which shows that it is based on FRE 608, indicates
that the legislature did not intend to impose specific prereq-
uisites-like frequent or recent contacts-on the admission
of opinion evidence. Instead, it indicates that the legislature
intended to require that the opinion have a rational basis,
which is consistent with the foundation requirements under
OEC 701. And the legislative history also indicates that the
legislature believed that the strength of the basis for the
opinion could be tested on cross-examination, as is the case
for opinion evidence under OEC 701.12

In this case, the trial court applied what it understood
to be a requirement of recent contacts. It ruled that, although

12 We note that, when determining whether a party laid a sufficient foun-
dation for the admission of lay opinion evidence under FRE 608, federal courts
have applied the FRE 701 requirements. See, e.g., United States v. Blair, 174 F4th
1309, 1319 (11th Cir 2026) (noting that testimony under FRE 608 must "be based
on a witness's own perception" in accordance with FRE 701); United States v.
McMurray, 20 F3d 831, 834 (8th Cir 1994) (citing FRE 701 and concluding that
a witness "had sufficient dealings to provide a rational basis for her opinion as
to [the defendant's] truthfulness"); United States v. Cortez, 935 F2d 135, 139 (8th
Cir 1991) (noting that opinion testimony under FRE 608 is subject to the require-
ments of FRE 701); United States v. Dotson, 799 F2d 189, 192 (5th Cir 1986) (not-
ing that FRE 701 limits FRE 608 evidence by requiring that it be based on "first-
hand knowledge" and "helpful in resolving issues").

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defendant's witnesses had had frequent contact with A for
most of A's life, they could not testify to their opinions about
A's character for untruthfulness because they had had little
to no contact with her during the three years before trial. The
Court of Appeals affirmed the trial court's ruling, relying on
Maxwell. Solano, 332 Or at 651 (citing Maxwell, 172 Or App at
154-55). In Maxwell, the Court of Appeals relied on an earlier
case, Caffee, 116 Or App at 27, in which it first addressed the
foundation requirements for OEC 608(1) evidence.

In Caffee, the defendant sought to call his daugh-
ter as a witness to testify about her opinion regarding the
complainant's character for untruthfulness. Id. at 26. The
daughter had known the complainant since childhood, but
"she had very little recent personal contact with [the com-
plainant] or other people associated with her. Instead, she
based her opinion on letters that she had received from [the
complainant]." Id. at 27. The state objected to the evidence,
asserting that the defendant had failed to lay a foundation
for it, and the trial court sustained the objection. Id. at
26-27.

The defendant appealed. To determine the foun-
dation requirements for OEC 608(1) evidence, the Court
of Appeals looked only to a treatise, Kirkpatrick's Oregon
Evidence, quoting it for the proposition that

"'[a] character witness, whether testifying in the form of
reputation or opinion, will not be allowed to testify until
a foundation has been laid showing that the witness has
sufficient acquaintance with the reputation of the person in
the relevant community or sufficient personal contact with
the individual to have formed a personal opinion. The con-
tact must have been sufficiently recent so that there will be a
current basis for the testimony.'"

Id. at 27 (quoting Laird C. Kirkpatrick, Oregon Evidence
§ 608, 345 (2d ed 1989) (emphasis added)). It then noted that
the trial court had determined that the defendant's daugh-
ter "did not have recent contacts with [the complainant] suf-
ficient to make her able to offer an opinion regarding her
truthfulness" and summarily concluded that the defendant
had not demonstrated "that the trial court abused its discre-
tion in excluding [the daughter's] testimony." Id.

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The Court of Appeals did not look to the text, con-
text, or legislative history of OEC 608, as we have here. It
did not take into account that OEC 608 was based on FRE
608, which, as Weinstein had explained, did not condition
admission of opinion evidence upon "long acquaintance or
recent information." 3 Weinstein's Evidence I 608(04) at 608-
20, quoted in Lollar, 606 F2d at 589.

In cases decided after Caffee, the Court of Appeals
has treated Caffee as establishing a "recency requirement"
for OEC 608(1) evidence. In Maxwell, the Court of Appeals
ruled that, under Caffee, the admissibility of opinion evi-
dence proffered under OEC 608(1) depends on whether the
evidence is based on contacts that are "frequent enough
and recent enough to have probative value to the testimony
given in court." 172 Or App at 154-55 (emphasis in original).
See also State v. Paniagua, 268 Or App 284, 290, 341 P3d
906 (2014) (quoting Laird C. Kirkpatrick, Oregon Evidence
§ 608.03, 511 (6th ed 2013), and citing Caffee and Maxwell).

We agree with the Court of Appeals that, in order
to lay a foundation for opinion evidence proffered under
OEC 608(1), the proponent of the evidence must show that it
has probative value. It must be evidence that the jury could
credit; that is, it must be evidence that the jury could rely on
to find the fact that it is proffered to prove. But, for the rea-
sons explained above, an opinion about a person's character
can have probative value even if it is not based on recent
contacts. A lay witness's opinion has probative value if it
is rationally based on the witness's perceptions. See OEC
701 (requiring such a basis, as well as that the opinion be
helpful). Thus, to lay a foundation for a lay witness's opin-
ion about another witness's character for truthfulness or
untruthfulness, a party must show that the opinion is ratio-
nally based on the witnesses' contacts with each other and
that it is helpful.

A witness's opinion about another witness's char-
acter is similar to an inference, and an inference can be
rationally based on a person's observations even if it is not
the only inference that could be drawn from those obser-
vations. Therefore, when determining whether a party has
laid a foundation for lay witness opinion evidence proffered

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under OEC 608(1), a trial court is not to determine whether
it would draw the same inference as the witness has, nor
whether the factfinder should draw the same inference. It is
only to determine whether the inference is rationally based
on the witness's observations. If it is, and if it is not subject
to exclusion based on any other rule of evidence, then it is
admissible, and the parties can litigate whether the fact-
finder should credit it.13

As mentioned, the trial court in this case excluded
defendant's proffered OEC 608(1) evidence on the ground
that defendant had failed to satisfy the "rule about recency."
In doing so, the trial court treated recent contacts as a
requirement for admission. Because we have concluded
that, although recent contacts are relevant, they are not
required, the trial court erred; it failed to apply the correct
legal principles when determining whether defendant had
laid a foundation for the evidence. See Rogers, 330 Or at 312
(explaining that the failure to apply correct legal principles
constitutes legal error).

The error was not harmless. See State v. Davis,
336 Or 19, 32, 77 P3d 1111 (2003) (to determine whether
a trial court error was harmless, an appellate court asks
"whether there was little likelihood that the error affected
the jury's verdict"). Here, had the trial court applied the cor-
rect legal test, it could have admitted the evidence, which
related to the central issue in the case. As the prosecutor
told the jury in his closing argument, the case turned on
whether the jurors believed A's allegations. The charged
crimes were alleged to have occurred during a family
sleepover when both defendant and A were children, and
neither A nor her sister, J, reported anything unusual on
the night of the sleepover or for the next 10 years. At trial,
defendant denied the abuse. J and defendant's brother also
testified, and they did not report any wrongdoing by defen-
dant during the sleepover. The witnesses were close family
members who had known A most of her life and had had
frequent contact with her over the course of many years. We

13 As noted, even if evidence qualifies for admission under OEC 608(1), it may
be subject to exclusion under other rules of evidence, including OEC 403. 375 Or
at 594 n 8.

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cannot say that the trial court's exclusion of their testimony
was harmless. Therefore, we reverse the part of the Court
of Appeals' decision that relates to defendant's OEC 608(1)
evidence, reverse the trial court judgment, and remand this
case to the trial court for further proceedings. See State v.
Hightower, 368 Or 378, 385, 491 P3d 769 (2021) (describing
appellate court dispositions); State v. Tena, 362 Or 514, 525-
26, 412 P3d 175 (2018) (reversing and remanding based on
evidentiary error, noting that the trial court could consider
different arguments regarding the admissibility of the evi-
dence on remand); State v. Mazziotti, 361 Or 370, 376, 393
P3d 235 (2017) (same).

Although we are remanding this case to the trial
court, we also address defendant's challenge to the trial
court's denial of his pretrial motion to preclude use of the
term "disclosure" to refer to A and J's allegations, because
that issue may arise again on remand.

### B. Use of the Term "Disclosure"

#### 1. Parties' arguments

On review, defendant again argues that the term
"disclosure" has the "connotation of exposing previously hid-
den but truthful information" and that a jury "would under-
stand the use of the word to suggest that there was something
factual to divulge and, thus, as a comment on the credibility
of the accuser and of what was being revealed." Defendant
further argues that the trial court's erroneous denial of the
motion was not harmless. He points out that both the prose-
cutor and the forensic interviewer used the term.

In response, the state argues that "the ordinary
meaning of the word 'disclosure' does not suggest that the
statements made are necessarily true." In addition, the
state argues that, even if the trial court erred in denying
defendant's motion, the error was harmless, given that the
term "disclosure" was used only a few times during the trial
and primarily by the prosecutor.

#### 2. Standard of review

When reviewing a ruling on a pretrial motion, an
appellate court is "limited to the record as it had developed

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at the time of the ruling; we do not evaluate a court's pre-
trial decision with the benefit of hindsight by, for example,
taking into account what happened at trial." Sperou, 365
Or at 137. Consequently, the question before us is whether
the trial court erred in denying defendant's pretrial motion
based on the record that existed at the time the trial court
ruled, which depends on whether, as defendant contended,
use of the term "disclosure" would constitute vouching.
Whether a statement constitutes vouching is a question of
law, which we review for errors of law. Id. at 139.

#### 3. Vouching analysis

Under Oregon law, a witness may not comment on
the credibility of another witness's pretrial or trial state-
ments. State v. Black, 364 Or 579, 581, 437 P3d 1121 (2019).
That prohibition, known as the "vouching rule," is a "judi-
cially created rule of evidence" that serves to ensure that the
jury remains the sole arbiter of the credibility of a witness's
statements. Sperou, 365 Or at 128 (citing State v. Chandler,
360 Or 323, 330-31, 380 P3d 932 (2016). As such, it is com-
plemented and supported by OEC 608, which permits a
party to attack or support a witness's credibility, but only
through reputation or opinion evidence about the witness's
character for truthfulness or untruthfulness. See State v.
Brown, 297 Or 404, 443, 687 P2d 751 (1984) (so stating); id.
at 442 (the vouching rule prohibits a witness from "pass[ing]
upon the credibility of another witness in respect to specific
conduct").

The vouching rule applies to direct comments about
the credibility of a witness's statement, as well as comments
that are "tantamount" to such direct comments, including
those that are "commonly understood ways of signaling a
declarant's belief that a witness is telling the truth." State
v. Beauvais, 357 Or 524, 543, 354 P3d 680 (2015); see, e.g.,
State v. Keller, 315 Or 273, 285, 844 P2d 195 (1993) (expert's
testimony that there was no indication that the witness had
been "coached" or "led" when she made allegations against
the defendant constituted vouching); State v. Milbradt, 305
Or 621, 629-30, 756 P2d 620 (1988) (expert's testimony that
a witness is not deceptive, could not lie without getting
tripped up, and would not betray a friend was tantamount

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to saying that the expert believed the witness's statements).
Whether testimony violates the vouching rule depends on
"whether it conveys one witness's opinion of the truthful-
ness" of another witness's statements. Black, 364 Or at 588.

Not all vouching takes the form of a statement about
whether another witness's statement is true. Sperou, 365 Or
at 128. "Some vouching is subtler, and certain statements
might be vouching in some contexts but not others." Id.

A single-word description can constitute vouch-
ing. In Sperou, this court ruled that witnesses' "use of the
term 'victim' to refer to the complaining witness or other
witnesses, in circumstances where the accusers' own tes-
timony is the only evidence that the alleged criminal con-
duct occurred, conveys the speaker's belief that the accusers
are credible." Id. at 132. We observed that other courts had
reached the same conclusion in analogous circumstances,
stating, among other explanations, that "'the term "victim"
is conclusive in nature and connotes a predetermination
that the person referred to had in fact been wronged.'" Id.
(quoting State v. Nomura, 79 Haw 413, 416, 903 P2d 718,
721 (Haw Ct App 1995). Consequently, we concluded that
"where (as here) it is virtually impossible for a witness's use
of the term to serve a legitimate, nonvouching purpose, any
use of the term is categorically inadmissible." Id. at 139.
Applying that rule, we held that the trial court had erred in
denying the defendant's motion to preclude witnesses from
using the term to refer to the complainant or the other wit-
nesses who had accused defendant of sexual abuse. Id. at
140.

Like witnesses, lawyers are prohibited from offer-
ing their personal opinions about a witness's credibility. Id.
at 129 (citing, inter alia, State v. Parker, 235 Or 366, 377,
384 P2d 986 (1963) ("It is improper for counsel to interject
his personal appraisal of the witness's credibility in a way
which would suggest to the jury that the appraisal is based
upon counsel's own knowledge of facts not introduced into
evidence."), and former DR 7-106(C)(4) (2003) ("In appear-
ing in the lawyer's professional capacity before a tribunal, a
lawyer shall not *** [a]ssert the lawyer's personal opinion

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*** as to the credibility of a witness.")). The prohibition is
similar to the "vouching rule," but unlike that rule,

"it is not a rule of evidence. The rationale for the principle is
that counsel's credibility opinions are not evidence and are
sometimes based on facts not in evidence-thus, they tend
to distract the jury from its duty to base its verdict on the
evidence at trial."

Sperou, 365 Or at 129 (emphasis in original). And "although
a prosecutor's comments regarding witness credibility may
present problems similar to those underlying the eviden-
tiary rule against 'vouching' testimony, it is also true that
prosecutors, as advocates for the state's cause, have wide
latitude to make arguments from the evidence." Id. at 130
(emphasis in original).

As mentioned, in Sperou, this court held that the
trial court had erred by denying the defendant's motion to
prohibit the use of the term "victim" by witnesses. Id. at
139. But we reached a different conclusion as to the use of
the term by the prosecutor. Id. at 138. We explained that
"a prosecutor is expected to be a zealous advocate for the
public, and, accordingly, prosecutors have a large degree of
freedom to comment on the evidence submitted and urge
the jury to draw any and all legitimate inferences from that
evidence." Id. at 135 (internal quotation marks and citation
omitted). Therefore, although a prosecutor may not express
a personal opinion about a witness's credibility, a prosecutor
may argue that "the jury should regard a witness as credible
(or not) based on, for instance, the witness's demeanor and
testimony." Id. (emphasis in original). Consequently, we con-
cluded that,

"[i]n light of a prosecutor's dual responsibilities to
refrain from inflammatory remarks and personal commen-
tary, on the one hand, but to be an advocate for the state's
cause, on the other, it is difficult to state a categorical rule
regarding a prosecutor's use of the term 'victim' to describe
a complaining witness where victimhood is disputed."

Id. "Ultimately, the propriety of a prosecutor's use of the
term 'victim' will depend on the context in which the word
is used." Id. at 137. Applying that understanding, we held
that, because the defendant's motion to preclude the use of

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the term "victim" was categorical, the trial court was not
required to grant it as to the prosecutor. Id. at 137-38.14

Relying on Sperou, defendant argues that the trial
court erred in denying his motion to preclude the use of the
term "disclosure" to refer to A and J's allegations of sexual
abuse. The premise of defendant's argument is that, in a
case like this, where the complainant's allegations are the
only evidence of the charged sexual abuse, use of the term
"disclosure" conveys that the person using the term believes
that the "disclosure" is true. He argues that

"[l]abeling a statement as a 'disclosure' conveys that
the statement or testimony is not just an assertion of the
speaker's opinion, or of what the speaker claims to be true.
Rather, labeling it a 'disclosure' conveys that the statement
or testimony reveals fact, that what the speaker says is
true. Because the term 'disclosure' implies that the state-
ments are true, use of the term 'disclosure,' like 'victim,'
acts as an impermissible comment on the accuser's cred-
ibility, undermines the presumption of innocence, and
deprives a defendant of a fair trial."

The state's opposing position is that

"the ordinary meaning of the word 'disclosure' does not
suggest that the statements made are necessarily true, and
the use of the word at trial is not a comment on the veracity
or credibility of another witness's statements. Accordingly,
the use of the word does not constitute vouching."

As relevant here, the noun "disclosure" is defined
as "something that is disclosed : REVELATION, DIVULGATION."
Webster's at 645. In turn, the verb "disclose" is defined as
"2 a : to expose to view *** : to lay open or uncover (some-
thing hidden from view) *** b : to make known : open up to
general knowledge *** esp : to reveal in words (something

14 We emphasized that our conclusion was "based on the general and sweep-
ing nature of defendant's pretrial request" and that we did not mean to say "that
a motion to restrict a prosecutor's use of the term 'victim' can never properly be
the subject of pretrial relief." Sperou, 365 Or at 138. But, we continued,

"defendant's pretrial motion failed to appreciate, much less alert the trial
court to, the considerations distinguishing a prosecutor's legitimate use of
the term 'victim' from uses that are improper. As such, the trial court was not
required to prohibit the use of a word that, we have explained, may be used
appropriately depending on context."

Id.

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that is secret or not generally known) : DIVULGE." Id. In
connection with verbal statements-which A's allegations
were-the most fitting of those definitions is "to reveal in
words." The synonym to that meaning is "divulge," which
is defined to mean "to tell or make known (a secret or confi-
dence or what had been previously unknown)." Webster's at
664. Thus, a "disclosure" can be something that is told or
made known, especially something that had been previously
unknown. A person may describe another witness's state-
ment as a "disclosure" to convey that the statement is a new
assertion or an assertion about a subject that was secret or
not generally known. Therefore, use of the term "disclosure"
does not necessarily convey that the person using the term
believes that the "disclosure" is true. A person may use the
term "disclosure" to convey the newness or subject of a state-
ment, not its truth.

The term "disclosure" differs from the term "victim."
A person is a "victim" only if the person has been wronged.
Consequently, when a witness describes a complainant as
a "victim" and the complainant's own statements are the
only evidence that the complainant has been wronged, the
witness's use of the term "victim" conveys that the witness
believes the complainant's statements. Sperou, 365 Or at
132 (quoting Nomura, 79 Haw at 416, 903 P2d at 721 (the
term "victim" "connotes a predetermination that the per-
son referred to had in fact been wronged")). But a statement
can be a "disclosure" even if it is not true. Therefore, the
fact that a person uses the term "disclosure" to describe a
complainant's statement does not necessarily mean that the
person believes that the statement is true.

Indeed, in this case, defense counsel himself used
the term "disclosure" to describe the complainant's allega-
tions against defendant. He asserted that A and J "made
disclosures" so that they could receive visas available to
crime victims. Obviously, given that the defense was that
those "disclosures" were false, defense counsel was not using
the term to convey that they were true.

Defense counsel's use of the term "disclosure" was
not unusual. This court has used the term in connection with
statements that are false or inaccurate. For example, we

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have referred to "false disclosures of sexual abuse." Gorham
v. Thompson, 332 Or 560, 563, 34 P3d 161 (2001) (stating
that the defendant wanted to call an expert to testify that
certain interviewing tactics "can lead children to make false
disclosures of sexual abuse" (emphasis added)). We have also
described a statement as an "inaccurate disclosure." In re
Fulop, 297 Or 354, 358, 685 P2d 414 (1984) (explaining
that it appeared from the record "that no partnership ever
existed and that the inaccurate disclosure *** was made in
view of a prospective partnership that never came to pass"
(emphasis added)). In addition, in many contexts, the law
requires persons to make disclosures, and those disclosures
are not always truthful. See, e.g., In re Cobb, 345 Or 106,
108, 190 P3d 1217 (2008) (referring to a "false financial dis-
closure statement").

Given that the term "disclosure" can be used to
describe a statement that is a new assertion or an asser-
tion about a subject that was not generally known, without
vouching for the veracity of the assertion, and that the term
can be used to refer to a false or inaccurate statement, we
conclude that a person's use of the term to refer to a state-
ment does not necessarily convey that the person believes
the statement is true. Therefore, its use does not necessarily
violate the rules that bar witnesses and lawyers from com-
menting on the credibility of witness statements, and the
trial court did not err in rejecting defendant's argument to
the contrary. The trial court was not required to grant the
defendant's broad, pretrial motion to bar the term's use.15

## III. CONCLUSION

In sum, as to the first question presented, we hold
that the trial court erred by imposing a recency requirement
when ruling that defendant had failed to lay a foundation for
his witnesses' testimony about A's character for untruthful-
ness, which he proffered under OEC 608(1). We further hold

15 We emphasize that the issue here is only whether, on the record before it,
the trial court was required to grant defendant's pretrial motion to categorically
preclude the use of the term "disclosure" to refer to A and J's allegations. It is
possible that, if used in a particular way, the term could constitute vouching.
But, because defendant's challenge to the term was general, we are not called
upon to decide, and do not decide, whether any particular way of using the term
constitutes vouching.

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that the trial court's error was not harmless, and, therefore,
we must remand this case to the trial court for further pro-
ceedings. As to the second question presented, we hold that
the trial court did not err in denying defendant's pretrial
motion for a categorical bar on the use of the term "disclo-
sure" because, contrary to defendant's argument, use of the
term does not necessarily constitute vouching.

The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court
is reversed, and the case is remanded to the circuit court for
further proceedings ..