347 Or 110 | Omnilex

Texte intégral

110
Argued and submitted March 5, 2008, decision of Court of Appeals and judgment
of circuit court affirmed October 1, 2009
STATE OF OREGON,
Respondent on Review,
v.
JUSTIN CLARK PERRY,
Petitioner on Review.
(CC 03-06-33108; CA A125135; SC S055142)
218 P3d 95

Cite as 34 7 Or 110 	111
CJS, Criminal Law§ 1067.
En Banc
On review from the Court of Appeals.*
* Appeal from Multnomah County Circuit Court. Marilyn Litzenberger,
Judge. 213 Or App 391, 161 P3d 955 (2007).

111-a
Daniel J. Casey, Portland, argued the cause and filed the
brief for petitioner on review.
David B. Thompson, Senior Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent on
review. With him on the brief were Hardy Myers, Attorney
General, and Mary H. Williams, Solicitor General.
GILLETTE, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.

Cite as 34 7 Or 110 (2009) 	111-b

112
GILLE'ITE, J.
Defendant was charged with various crimes based
on a child's report that defendant had sexually abused her.
The report was made several months after the crimes alleg-
edly had occurred. At defendant's trial, the court permitted
an expert witness for the state to testify about a phenomenon
known as "delayed reporting."1 The expert testified that chil-
dren who have been sexually abused often delay in reporting
that abuse. The testimony was intended to rebut an inference
that defendant sought to have the jury draw that the child's
failure to report defendant's alleged acts of abuse immedi-
ately indicated that the abuse never had happened. After a
jury convicted him of all charges, defendant appealed to the
Court of Appeals, claiming that admission of the expert's tes-
timony about delayed reporting was reversible error. The
Court of Appeals affirmed without opinion. State v. Perry,
213 Or App 391, 161P3d955 (2007). We allowed defendant's
petition for review and now affirm the decision of the Court of
Appeals and the judgment of the trial court.
The facts essential to the legal issue on review are
not in dispute. Early in 2002, defendant and his wife agreed
to serve as foster parents for the wife's 10-year-old niece (vic-
tim) and her eight-year-old brother. In February 2002, the
two children moved into the couple's Northeast Portland
home.
Nothing occurred to raise questions about the place-
ment of the children until December 2002, when the victim
and her brother attended a Christmas party that was held by
the Oregon Department of Human Services (DRS) for foster
children and their families. The victim's biological father was
there, and victim was able to converse with him without
supervision. In the course of their conversation, the victim
reported to her father that defendant had touched her sexu-
ally on numerous occasions some months previously and that
she did not want to return to defendant's home. The victim
1 We understand from the testimony that "delayed reporting" is the label used
by professionals in the field to describe a situation in which a sexually abused child
does not report an abusive event immediately but, instead, reports it some time
later.

as 347 Or 	113
repeated her story to a DHS caseworker who, in turn,
arranged to have her evaluated by an organization known as
Child Abuse Response and Evaluation Services (CARES).
CARES personnel who examined the victim found
no physical evidence of sexual abuse but concluded, nonethe-
less, that her report of sexual abuse was credible. Based on
the victim's report, defendant thereafter was charged with
one count of unlawful sexual penetration in the first degree,
one count of sodomy in the first degree, and nine counts of
sexual abuse in the first degree.
Before his trial on the foregoing charges, defendant
filed two motions in limine challenging the admissibility of
certain expert testimony that the state intended to introduce.
Although the actual motions are not in the trial court file, we
can determine from the transcript that one motion sought to
limit expert testimony respecting the phenomenon known as
"delayed reporting" by sexually abused children-the subject
at the heart of this case. The other motion is not pertinent to
our inquiry.
In an OEC 104 2 hearing held in response to defen-
dant's motions in limine, the state's expert, Dr. Keltner,
answered questions about her intended testimony at trial.
She testified that she was the medical director of CARES
Northwest and held various advanced degrees, including an
M.D. and a Ph.D. in biometry; that the medical profession
recognizes a medical diagnosis of child sexual abuse; that
CARES uses a widely accepted medical model for child sexual
abuse assessment; that CARES examiners and interviewers
receive extensive specialized training; and that there are spe-
cialized journals and other peer reviewed Ii terature devoted
to the subject of child sexual abuse. Keltner acknowledged
2 Oregon Evidence Code (OEC) Rule 104 provides, in part:
"( l) Preliminary questions concerning the qualification of a person to be a
witness, the existence of a privilege or the admissibility of evidence shall be
determined by the court. subject to the provisions of subsection (2) of this sec-
tion. In making its determination the court is not bound by the rules of evi-
dence except those with respect to privileges.
"(2) When the relevancy of evidence depends upon the fulfillment of a con-
dition of fact, the court shall admit it upon, or subject to, the introduction of evi-
dence sufficient to support a finding of the fulfillment of the condition."

114
that "we do not do scientifically case-controlled research" in
the area of child sexual abuse, but noted that the same was
true for a "majority of medical processes." 3
The prosecutor questioned Keltner about a phenom-
enon known as "delayed reporting" by child victims of sexual
abuse. Keltner testified that such a phenomenon was "com-
mon" and "well understood," and that there was a body oflit-
erature dealing with the issue. Keltner also testified that a
separate CARES study of delayed reporting, although not
peer reviewed, was consistent with the "national experience"
as reported in the literature 4 --i.e., that, in cases of children
with "abnormal [physical] exams," there was a delay in
reporting in a majority of those cases.
On cross-examination, Keltner acknowledged that
there was no way to determine whether any particular child
who delays a report of sexual abuse is telling the truth. She
testified, however, that people in the field "do understand
that disclosure is a process and that [the] first part of the
process is denial." She also stated that, according to "studies
looking at false allegations in children[,] * * * the thing
they're most likely to lie about is that abuse did not occur
rather than lying falsely about abuse occurring."
Thereafter, the prosecutor argued that the state had
established a foundation for admitting Keltner's testimony
"to explain the delay in reporting." In response, defendant
argued that Keltner's testimony regarding delayed reporting
was inadmissible on three grounds-(1) it was not scientifi-
cally valid under the multifactor analysis described in State
v. Brown, 297 Or 404, 687 P2d 751 (1984) and State v. O'Key,
321 Or 285, 899 P2d 663 (1995); (2) it was irrelevant; and
(3) it was unfairly prejudicial. Defendant noted that Keltner
had admitted that there was no scientifically controlled
' Keltner explained that no true controlled studies would be possible within
the bounds of medical ethics: Dividing children into two groups and then intention-
ally abusing one of the groups would be a perversion of science of Orwellian
proportions.
1 Keltner referred in particular to a study "done by Sorenson and Snow in tbe
early 90s," which "found that 72 percent of the children that they evaluated [who
had been sexually abused] initially denied abuse."

Cite as 347Or110 	115
research on the issue of delayed reporting and, thus, "no way
to test the rate of error." Defendant also noted that Keltner
"didn't give any evidence that this * * * really what is syn-
drome evidence about delayed reporting, she cited no spe-
cific literature to support that. She said something about
when children have abnormal exams showing abuse that
90 percent of the time they delay in reporting. But I don't
think that's enough."
Finally, defendant argued that the delayed reporting testi-
mony was irrelevant and unfairly prejudicial because "the
state ha[d] failed to establish any link between this child and
a delay in reporting, only that children tend to delay in
reporting."
Ultimately, 	the 	trial 	court 	rejected 	defendant's
oqjections and ruled that Keltner could testify "with respect
to the scientific validity of delayed reporting as a character-
istic of sexual abuse." The court's ruling took place in this
brief colloquy:
"[THE COURT:] 	Defense Motion in Limine No. 2,
whether the expert is qualified, we already said that the
expert is qualified. Whether the expert can give testimony
with respect to the scientific validity of delayed reporting as
a characteristic of sexual abuse, I will allow that testimony
based on the references to the literature, the peer review of
cases that are done both nationally-or nationally and here
locally.
"I think it's the type of evidence that--I think the testi-
mony has established that it's the type of evidence that is
found to be scientifically valid within the group of people
who specialize in this area.
"Having said that, I would have expected to have a little
more detail in the-in the presentation with respect to [the]
delayed reporting phenomen[on] itself.
"[THE PROSECUTOR:] 	I'm sorry?
"[THE COURT:] 	I would have expected to have a little
more detail with respect to delayed reporting as a charac-
teristic of this phenomenon. And specifically we didn't hear
any testimony about what constitutes delayed reporting. Is
it an hour, is it a day, is it a month, is it a year, is it ten
years, what is it?

"[THE PROSECUTOR:] 	I will certainly flesh that out.
"[THE COURT:] 	All right. So I would expect that. So
I'm-as I said, I'm going to allow that testimony."
As that colloquy reveals, the trial court's ruling was
conditional in nature: Keltner could testify, but the trial
judge expected her to explain more fully what "delayed
reporting" was. Moreover, her testimony remained subject to
any specific objections that defendant might make at trial.
Also implicit in the court's ruling was the idea that defendant
could move for a limiting instruction on the uses that the jury
could make of the testimony.
The case proceeded to trial before a jury. In its case-
in-chief, the state presented the victim's testimony, together
with a videotape of an interview of the victim by CARES per-
sonnel. It also presented testimony from several other wit-
nesses, including Keltner. Defendant took the stand and
denied 	any 	wrongdoing. 	The jury convicted him 	of all
charges, and these appellate proceedings ensued.
We emphasize the limited nature of the issue before
us in this case. Defendant does not assign error to any ruling
made by the trial court after the jury was empanelled
and sworn. (Defendant made only a single objection during
Keltner's testimony at trial, and he does not assign error to
the ruling on that objection.) Instead, defendant rests his
arguments entirely on the trial court's rulings at the conclu-
sion of the OEC 104 hearing. Defendant's strategy is a per-
missible one, of course, but it highlights both the utility and
the limits to the utility of motions in limine: A general ruling
that a certain type of evidence (even scientific evidence) is
minimally relevant under OEC 401 5 and OEC 702 6 does not
relieve a party of the obligation to make specific objections to
6 OEC 401 provides:
"'Relevant evidence' means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence."
6 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.''

Cite as 347 Or 110 	117
discrete pieces of that evidence at trial, if the dynamics of the
trial process reveal other grounds for objection.
We turn, then, to the three arguments that defen-
dant made at the close of the OEC 104 hearing. As noted,
they were that (1) Keltner's testimony did not meet the legal
test for "scientific" evidence; (2) the evidence was not rele-
vant; and (3) the evidence was unfairly prejudicial. We
address the latter two arguments first. In doing so, we add
the following contextual observation: Much of defendant's
argument, both at the OEC 104 hearing and to this court,
consists of asserting that Keltner's delayed reporting testi-
mony was being offered to show that the victim's delayed
reporting affirmatively established that the victim had been
sexually abused.
In considering that argument, however, two things
must be kept in mind: (1) Because defendant's case was built,
in part, on the proposition that the victim's delay in reporting
gave rise to an inference that she had not been abused,
Keltner's testimony served a legitimate purpose-to show
that there was a scientific basis for rejecting that proposi-
tion-i.e., a treating health care professional would not nec-
essarily view the delay as a reason to discount the victim's
story. (2) Even if, at the OEC 104 hearing, Keltner character-
ized delayed reporting as a normal "part of the disclosure
process" and in other ways suggested through her testimony
that delayed reporting might have some affirmative diagnos-
tic value, she never stated that delayed reporting was affir-
matively probative of whether sexual abuse actually had
occurred. In fact, she specifically conceded that delayed
reporting itself was not a diagnostic tool in that regard. 7 In
7 Defendant's counsel asked Keltner the following questions, among others,
and received the following answers:
"[DEFENSE COUNSEL:] In a situation where you don't have a
confession-
"[THE WITNESS:] Yes.
"[DEFENSE COUNSEL:] -and you don't have an abnormal [physical]
exam and you don't have a-a verdict at trial, there is no way to distinguish
between someone who has delayed in reporting who is telling the truth and
someone who's delayed in reporting [who] is not telling the truth?
"[THE WITNESS:] There is no single test that can give you a hundred per-
cent validity and reliability. * * *
"[DEFENSE COUNSEL:] But there's no test at all, right, Doctor?

118
light of those facts, we think that it was defendant's respon-
sibility to point out to the trial court-either by means of
some generalized discussion of the matter at the OEC 104
hearing or by means of specific objections at trial-the line
between testimony that tended to rebut defendant's theory
that the victim's delayed reporting was affirmative evidence
of fabrication and testimony that instead presented delayed
reporting as affirmative evidence of abuse. Defendant did not
do that, and did not make distinct arguments about the rele-
vance, unfair prejudice, and scientific validity of the two
kinds of evidence.
With those points in mind, we turn first to the OEC
401 issue, i.e., the issue of relevance. As noted, defendant's
theory of the case was that the victim was fabricating. One
part of that theory was that a trier of fact could infer that the
victim's delay in reporting tended to show that the events
about which the victim testified had never happened. But
Keltner's testimony that similar delayed reporting often is
seen in verified cases of child sexual abuse tended to counter
that inference. The testimony was relevant in that respect at
least, i.e., it had some "tendency to make the existence of [a]
fact that is of consequence to the determination of the action
more probable or less probable." OEC 401.
It could be argued from this record that the state had
a further purpose in mind: In the OEC 104 hearing, the pros-
ecutor stated that the evidence should be admitted because it
was "an important piece of the diagnostic process." But the
existence of that second purpose-if, in fact, it did exist-
adds nothing to the inquiry whether Keltner's testimony
could be admitted for the reason already discussed: If defen-
dant was attempting to make something of the victim's delay
"[THE WITNESS:] * * * [Y]ou are correct, there's no-
"[DEFENSE COUNSEL:} You said there's no 100 percent test, but there's
no way to tell at all, is there, under the hypothesis I've given you?
"[THE WITNESS:] No. * * *"
Thereafter, defense counsel asked one other important question:
"[DEFENSE COUNSEL:] * 	* [W]hat [another recognized expert] says is
that this syndrome [of delayed reporting] is not a diagnosis but a-hut a coun-
seling tool; is that right?
"[THE WITNESS:] Correct. * * *"

Cite as 347 Or 110 	119
in reporting (and he was), then the state was entitled to meet
that argument. Ifthe state sought to elicit the testimony for a
different purpose as well, then defendant was free to object to
Keltner's testimony on that more limited basis. See, e.g.,
State v. Camarena, 344 Or 28, 33 n 3, 176 P3d 380 (2008)
(objection to evidence as a whole not basis for reversal, if
some of evidence was admissible). He did not do so. Defen-
dant also was free to seek an appropriate limiting instruc-
tion. But, again, he did not. 8 If defendant thought that
Keltner was adding a different (and irrelevant) "spin" to the
relevant facts that she was reporting, then it was for the
defendant to point that out and to seek to limit her testimony.
The trial court did not err in ruling that, in this context,
Keltner's testimony was relevant.
Neither, in our view, did the trial court demonstrably
err in ruling that Keltner's testimony did not violate OEC
403. 9 That is, the court was entitled, on this record, to rule
that the probative value ofKeltner's testimony was not sub-
stantially outweighed by the danger of unfair prejudice or
confusion. We already have established that the testimony
was relevant in that it challenged defendant's theory that the
victim's delayed reporting affirmatively indicated that her
report was a fabrication. But defendant contends that the
testimony posed a substantial danger of unfair prejudice-
the likelihood that jurors would find that the complainant in
fact was abused simply because she waited to make her
allegations.
In our view, that danger of unfair prejudice is not
inherent in the central thesis of Keltner's testimony that
8 The trial court's ruling was not a model of clarity, mentioning, as it did,
"delayed reporting as a characteristic of sexual abuse." But the ruling also was cor-
rect at least in part-as we have explained-and defense counsel was left with the
awkward necessity of accepting the outcome or pursuing clarification. We are not
called on in this case to decide whether the "delayed reporting" phenomenon ever
would be admissible as a characteristic of a diagnosis of"sexual abuse." Respecting
the testimonial use of that diagnosis, see State v. Southard, 347 Or 127, 218 P3d
104 (2009).
9 OEC 403 provides:
''Although relevant, evidence may be excluded if its probative value is sub-
stantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay or needless
presentation of cumulative evidence."

120
delayed reporting is common in verified cases of child sexual
abuse. And, if defendant was of the view that Keltner was
embellishing that central thesis in a way that was unfairly
prejudicial-by suggesting that delayed reporting actually
might be an indicator of sexual abuse-then defendant
should have made it clear to the court that he was objecting
to that embellishment. Defendant did not do that. Again, we
reject defendant's claim of error.
Finally, 	we 	turn 	to 	defendant's contention 	that
Keltner's opinion testimony given at the OEC 104 hearing
was not admissible as scientific evidence. Defendant argues
that the state failed to establish that Keltner's delayed disclo-
sure testimony met the standard for admissibility of scien-
tific evidence described in State v. Brown, 297 Or at 417, and
State v. O'Key, 321 Or at 303-05.
There is no real dispute with regard to the underly-
ing premise of defendant's argument-that the testimony
was offered as "scientific evidence" and therefore requires a
Brown 	foundation 	to 	be 	admissible. 	Instead, 	the 	state
acknowledges that State v. Marrington, 335 Or 555, 73 P3d
911 (2003), establishes defendant's premise. In Marrington,
this court held that an expert's testimony that delay in
reporting is a "very prevalent characteristic of abused chil-
dren" would be perceived as scientific evidence by a trier of
fact and, as such, must be shown to be scientifically valid
before it is admissible. Id. at 563-64. In deciding that point,
this court focused on the fact that the expert in that case had
presented herself as having a scientific background and had
claimed that her knowledge was based on science:
"An expert * * * who has a background in behavioral sci-
ences and who claims that her knowledge is based on stud-
ies, research, and the literature in the field, announces to
the factfinder that the basis of her testimony is 'scientific,'
i.e., is grounded on conclusions that have been reached
through application of a scientific method to collected data.
Because that is how the factfinder would understand it, a
court has a duty to ensure that such information possesses
the necessary indices of scientific validity."
Id. at 563-64. As our summary of Keltner's testimony in the
OEC 104 hearing makes clear, she similarly was presenting

Cite as 347 Or 110 	121
herself as an expert in her field whose knowledge was based,
at least in part, on studies, research, and scientific literature.
Consequently, her testimony regarding delayed disclosure is
scientific evidence 	and must comply with the standard
described in Brown and O'Key for admission of such evidence.
Under Brown and O'Key, scientific evidence is admis-
sible if it is relevant under OEC 401, 10 helpful to the trier of
fact under OEC 702, 11 and not subject to exclusion under
OEC 403. 12 Brown, 297 Or at 409; O'Key, 321 Or at 297-99.
Underpinning the entire admissibility analysis, however, is
the requirement that the evidence be shown to be scientifi-
cally valid. See Marcum v. Adventist Health System/West,
345 Or 237, 245, 193 P3d 1 (2008) (so holding); O'Key, 321 Or
at 301 n 19 ("scientific validity [is] the linchpin of admissibi-
lity"). To determine that issue, and depending on the nature
of the evidence in question, a court may be required to con-
sider a number of factors, including:
"(1) 	The technique's general acceptance in the field;
"(2) 	The expert's qualifications and stature;
"(3) 	The use which has been made of the technique;
"(4) 	The potential rate of error;
"(5) 	The existence of specialized literature;
"(6) 	The novelty of the invention; and
"(7) 	The extent to which the technique relies on the sub-
jective interpretation of the expert."
Brown, 297 Or at 417 . 1:i
10 OEC 401 is set out above. 347 Or at 116 n 5.
11 OEC 702 is set out above, 347 Or at 116 n 6. Generally, scientific evidence
will assist the trier of fact if it is scientifically valid and properly can be applied to
the facts at issue.
OEC 403 is set out above, 34 7 Or at 119 n 9.
As noted, those factors for analyzing scientific validity initially were set out
in Brown. This court expanded on them in O'Key, adopting, as "an appropriate fur-
ther development," the logic and a slightly different formulation of the factors
articulated by the United States Supreme Court in Daubert v. Merrell Dow
Pharmaceuticals, 509 US 579, 113 S Ct 2786, 125 L Ed 2d 469 ( 1993). O'Key, 321 Or
at 306. For the purposes of our analysis in this case, the distinction between the
two sets of standards is not significant.

122
In considering the question of scientific validity
(which generally is resolved as a preliminary fact question in
an OEC 104 hearing, as it was in this case), courts must bear
in mind that the foregoing factors are not exclusive and are
not to be used as a mechanical checklist requiring an affrr-
ma tive finding with respect to each factor. O'Key, 321 Or at
300. Whatever factors may be relevant in a particular case,
the party offering the scientific evidence at issue (in the pres-
ent case, the state) has the burden of establishing that it is
scientifically valid.
Before applying the multifactor test to the evidence
in question, it is important to restate the purpose for which
the scientific evidence was offered. As we already have noted,
the core of Keltner's testimony was her assertion 	that
delayed reporting often occurs in children who verifiably
have been sexually abused. Defendant had signaled his
intention to defend on the theory that the victim was fabri-
cating and that her delay in reporting was evidence of that
fabrication. As we have explained, the most obvious (and per-
missible) function of Keltner's testimony was to contradict
defendant's 	claim that delay in reporting demonstrated
fabrication.
Turning to defendant's arguments under the multi-
factor test, the state argues that defendant did not preserve
his present "scientific foundation" argument in its entirety
because, in the OEC 104 hearing, he addressed only two of
the five Brown factors-the "potential rate of error" and the
existence of a "specialized literature"-on which he now
relies. The state asserts that, because defendant did not alert
the trial court that he had concerns about the sufficiency of
the state's scientific foundational evidence with regard to
other factors, we should not consider those factors in our
Brown analysis.
In general, we agree with the premise of the state's
argument: In multifactor foundation cases like the present
one, for example, the trial court reasonably might assume
that some factors are not in dispute if no one mentioned
them. However, we think that defendant's arguments in this
case were not as the state perceives. When considered in the
context of defense counsel's cross-examination of Keltner at

Cite as 347 Or 	123
the OEC 104 hearing, we think that defendant's arguments
at least should have alerted the trial court that two other
Brown factors-the "general acceptance of[ the technique] in
the field" and "use which has been made of the theory"-were
implicated. That is as far, however, as the arguments that
defendant made fairly may be said to reach. 14 We turn, then,
to the relevant Brown factors. In assessing those factors, we
rely on the evidence presented at the OEC 104 hearing. 15
• 	General Acceptance in the Field. We note at the outset
that Keltner's credentials as an expert are unchallenged, and
her qualification to give scientific evidence in her field is
unassailable. 	Instead, 	we 	focus 	on 	the 	narrower 	issue
whether her testimony concerning delayed reporting was
itself scientific. The first factor that we consider is "the the-
ory's general acceptance in the field." Keltner testified that
the phenomenon of delayed reporting in sexually abused chil-
dren was a "fairly well understood topic" and that "the idea
that when children report abuse * * * that [it] * * * is a proc-
ess and not a single event * * * is well understood." From that
testimony by that witness, the trial judge could conclude that
there was general agreement in the field that delayed report-
ing by a child was not inconsistent with the child's having
been sexually abused. That criterion-to the extent it was
applicable-was met.
• 	The Use Which Has Been Made of the Technique. As
we have discussed, we assess Keltner's testimony on the
assumption that it was relevant to show that experts in the
field would not necessarily regard the evidence of delayed
reporting as proving that the victim had not been abused. So
'" Of course, the trial court was free to address all the Brown factors if it wished
to do so. We merely observe here that. where a trial court has ruled that certain evi-
dence is admissible as "scientific evidence," a party ordinarily may not predicate a
claim of reversible error on the court's failure to address one or more criteria that
the party did not argue.
15 In O'Key, this court indicated that its assessment of the factors would be
based on the "scientific testimony and evidence given at the 	* * hearing in the
trial court, pertinent legal and medical literature on the subject received in evi-
dence at that hearing, and numerous other sources in the area." 321 Or at 308-09.
In the present case, the prosecution (which, as the proponent ofKeltner's delayed
disclosure testimony, bore the burden of demonstrating its scientific validity) did
not submit any literature or other documentation, but relied entirely on Keltner's
presentation.

124
understood, Keltner's testimony was not really about a "tech-
nique" or its "use." This criterion thus is inapposite in the
context of this case.
• 	The Potential Rate of Error. This criterion has limited
utility in the context of this case for two reasons: First, as
already noted, controlled studies are not possible. See 34 7 Or
at 114 n 3. Lack of controlled studies is not, in any event, an
absolute bar to the admission of expert testimony by quali-
fied clinicians, which was the kind of testimony Keltner gave.
See Marcum, 345 Or at 252 (so stating); Jennings v. Baxter
Healthcare Corp., 331Or285, 305-06, 14 P3d 596 (2000) (so
holding respecting differential diagnosis by treating physi-
cian). That means that other factors must play a more signif-
icant role. Second, given the permissible use of the evidence
to counter defendant's factual theory about delayed report-
ing, a "rate of error" in that respect is difficult to postulate.
Even assuming, however, that numbers are rele-
vant, Keltner gave evidence respecting numbers. She repeat-
edly stated that sexually abused children commonly delay in
reporting, but further acknowledged that "a small percent-
age*** report immediately."16 She also acknowledged that
there were studies that show that children sometimes lie, but
she then stated that "the thing they're most likely to lie about
is that abuse did not occur rather than lying falsely about
abuse occurring." Keltner did not identify the "studies" to
which she referred and did not offer any statistical analysis of
the prevalence of delayed false accusations. Defendant, for
his 	part, 	did 	not 	ask for 	verification 	or challenge 	her
assertion, as an expert, that such studies existed. As noted,
however, Keltner did agree with defense counsel, on cross-
examination, that there was no way to distinguish a false
delayed report from a true delayed report, in the absence of
physical evidence or other corroboration.
The state contends that Keltner's acknowledgment
in no way detracts from the thrust ofKeltner's testimony that
delayed disclosure is not a factor that would lead a profes-
sional to rule out the possibility that a child had been
molested sexually. The state notes that Keltner's narrow
16 Keltner explained that such immediate disclosures occurred "particularly
with younger kids where it's an accidental disclosure, where they really don't have
the capability to keep it a secret."

Cite as 347 Or 110
assertion is entirely verifiable and, in fact, has been verified
by the "Sorenson and Snow" study that Keltner mentioned
(and which, according to Keltner, found that, out of a group of
"confirmed" victims of sexual abuse, 72 percent delayed in
disclosing). We agree with the state. Keltner's assertions
were admissible for the purpose that the state describes, and
the trial court did not err in so ruling.
• 	The Existence of a Specialized Literature. At the OEC
104 hearing, Keltner responded affirmatively when the pros-
ecutor asked if there has been specialized, peer reviewed lit-
erature devoted to the issue of delayed disclosure. She testi-
fied that
"what the literature looks like if you're looking at national
studies, for example, there was one by-done by Sorenson
and Snow in the early '90s, but really well done, and I con-
tinue to use it as a reference. They found that 72 percent of
the children that they evaluated initially denied abuse.
"And since that time, others have spent more studies
actually looking at adults who are known to have been
abused as children or raped as children, and again, what
you find is even adults looking back at their abuse as chil-
dren, that very large percentages never reported, never dis-
closed it, and that those that do disclose tend to delay in
their disclosure."
Keltner later clarified that the Sorenson and Snow study
looked at cases that were confirmed by means of an abnormal
physical examination, perpetrator confession, or perpetrator
conviction, and that it looked at both delayed disclosures and
initial denials. The factors of abnormal physical examina-
tion, perpetrator confession, and perpetrator conviction were
used as objective verifiers in the study. Keltner obviously
assumed that the study paralleled the situation in cases that
lacked those objective verifiers, and defendant does not argue
even now that the study was irrelevant because, for example,
the present case involves neither an abnormal physical
examination nor a confession.17 Keltner also referred to
"studies" and "the literature" in various other contexts, but
17 Keltner also described a small, informal CARES study of children with
abnormal physical examinations, which found that 90 percent of those children
had delayed in disclosing sexual abuse. She acknowledged that the study was not
peer reviewed and was not rigorous. We do not consider it as part of the state's por-
trayal of specialized literature at the OEC 104 hearing.

126 	State v.
was not asked to provide more detail. Keltner's testimony on
the point thus was scanty, but it was sufficient to permit the
trial judge to be satisfied that this criterion had been met.
• 	Other 	Factors. 	Brown 	refers 	to 	two 	additional
factors-the novelty of the technique and the "extent to
which the technique relies on the subjective interpretation of
the expert." Brown, 297 Or at 417. Keltner was not cross-
examined 	about 	those factors, 	and 	defendant does 	not
attempt to make a separate issue respecting either or both of
them here. Even were he to do so, however, the trial court
was entitled to find from Keltner's testimony that the state's
particular use of the phenomenon of delayed reporting was
not unduly novel and did not rely improperly on the subjec-
tive interpretation of the expert.
Having completed our consideration of the Brown
factors as they apply to the state's proffered evidence of the
delayed reporting phenomenon presented in the OEC 104
hearing, we conclude that, on the record before it, the trial
court was entitled to determine that Keltner's testimony
about the delayed reporting phenomenon survived the objec-
tions to it that were made at that hearing, subject to qualifi-
cations that defendant did not later choose to raise at trial.
There was no reversible error.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

Argued and submitted March 5, 2008, decision of Court of Appeals and judgment
of circuit court affirmed October 1, 2009

STATE OF OREGON,
Respondent on Review,
v.
JUSTIN CLARK PERRY,
Petitioner on Review.
(CC 03-06-33108; CA A125135; SC S055142)
218 P3d 95

CJS, Criminal Law § 1067.

En Banc
On review from the Court of Appeals .*

\* Appeal from Multnomah County Circuit Court. Marilyn Litzenberger,
Judge. 213 Or App 391, 161 P3d 955 (2007).

Daniel J. Casey, Portland, argued the cause and filed the
brief for petitioner on review.

David B. Thompson, Senior Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent on
review. With him on the brief were Hardy Myers, Attorney
General, and Mary H. Williams, Solicitor General.

GILLETTE, J.

The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.

# GILLETTE, J.

Defendant was charged with various crimes based
on a child's report that defendant had sexually abused her.
The report was made several months after the crimes alleg-
edly had occurred. At defendant's trial, the court permitted
an expert witness for the state to testify about a phenomenon
known as "delayed reporting."1 The expert testified that chil-
dren who have been sexually abused often delay in reporting
that abuse. The testimony was intended to rebut an inference
that defendant sought to have the jury draw that the child's
failure to report defendant's alleged acts of abuse immedi-
ately indicated that the abuse never had happened. After a
jury convicted him of all charges, defendant appealed to the
Court of Appeals, claiming that admission of the expert's tes-
timony about delayed reporting was reversible error. The
Court of Appeals affirmed without opinion. State v. Perry,
213 Or App 391, 161 P3d 955 (2007). We allowed defendant's
petition for review and now affirm the decision of the Court of
Appeals and the judgment of the trial court.

The facts essential to the legal issue on review are
not in dispute. Early in 2002, defendant and his wife agreed
to serve as foster parents for the wife's 10-year-old niece (vic-
tim) and her eight-year-old brother. In February 2002, the
two children moved into the couple's Northeast Portland
home.

Nothing occurred to raise questions about the place-
ment of the children until December 2002, when the victim
and her brother attended a Christmas party that was held by
the Oregon Department of Human Services (DHS) for foster
children and their families. The victim's biological father was
there, and victim was able to converse with him without
supervision. In the course of their conversation, the victim
reported to her father that defendant had touched her sexu-
ally on numerous occasions some months previously and that
she did not want to return to defendant's home. The victim

1 We understand from the testimony that "delayed reporting" is the label used
by professionals in the field to describe a situation in which a sexually abused child
does not report an abusive event immediately but, instead, reports it some time
later.

repeated her story to a DHS caseworker who, in turn,
arranged to have her evaluated by an organization known as
Child Abuse Response and Evaluation Services (CARES).

CARES personnel who examined the victim found
no physical evidence of sexual abuse but concluded, nonethe-
less, that her report of sexual abuse was credible. Based on
the victim's report, defendant thereafter was charged with
one count of unlawful sexual penetration in the first degree,
one count of sodomy in the first degree, and nine counts of
sexual abuse in the first degree.

Before his trial on the foregoing charges, defendant
filed two motions in limine challenging the admissibility of
certain expert testimony that the state intended to introduce.
Although the actual motions are not in the trial court file, we
can determine from the transcript that one motion sought to
limit expert testimony respecting the phenomenon known as
"delayed reporting" by sexually abused children-the subject
at the heart of this case. The other motion is not pertinent to
our inquiry.

In an OEC 1042 hearing held in response to defen-
dant's motions in limine, the state's expert, Dr. Keltner,
answered questions about her intended testimony at trial.
She testified that she was the medical director of CARES
Northwest and held various advanced degrees, including an
M.D. and a Ph.D. in biometry; that the medical profession
recognizes a medical diagnosis of child sexual abuse; that
CARES uses a widely accepted medical model for child sexual
abuse assessment; that CARES examiners and interviewers
receive extensive specialized training; and that there are spe-
cialized journals and other peer reviewed literature devoted
to the subject of child sexual abuse. Keltner acknowledged

2 Oregon Evidence Code (OEC) Rule 104 provides, in part:

"(1) Preliminary questions concerning the qualification of a person to be a
witness, the existence of a privilege or the admissibility of evidence shall be
determined by the court, subject to the provisions of subsection (2) of this sec-
tion. In making its determination the court is not bound by the rules of evi-
dence except those with respect to privileges.

"(2) When the relevancy of evidence depends upon the fulfillment of a con-
dition of fact, the court shall admit it upon, or subject to, the introduction of evi-
dence sufficient to support a finding of the fulfillment of the condition."

that "we do not do scientifically case-controlled research" in
the area of child sexual abuse, but noted that the same was
true for a "majority of medical processes."3

The prosecutor questioned Keltner about a phenom-
enon known as "delayed reporting" by child victims of sexual
abuse. Keltner testified that such a phenomenon was "com-
mon" and "well understood," and that there was a body of lit-
erature dealing with the issue. Keltner also testified that a
separate CARES study of delayed reporting, although not
peer reviewed, was consistent with the "national experience"
as reported in the literature4 -- i.e., that, in cases of children
with "abnormal [physical] exams," there was a delay in
reporting in a majority of those cases.

On cross-examination, Keltner acknowledged that
there was no way to determine whether any particular child
who delays a report of sexual abuse is telling the truth. She
testified, however, that people in the field "do understand
that disclosure is a process and that [the] first part of the
process is denial." She also stated that, according to "studies
looking at false allegations in children[,] ** * the thing
they're most likely to lie about is that abuse did not occur
rather than lying falsely about abuse occurring."

Thereafter, the prosecutor argued that the state had
established a foundation for admitting Keltner's testimony
"to explain the delay in reporting." In response, defendant
argued that Keltner's testimony regarding delayed reporting
was inadmissible on three grounds-(1) it was not scientifi-
cally valid under the multifactor analysis described in State
v. Brown, 297 Or 404, 687 P2d 751 (1984) and State v. O'Key,
321 Or 285, 899 P2d 663 (1995); (2) it was irrelevant; and
(3) it was unfairly prejudicial. Defendant noted that Keltner
had admitted that there was no scientifically controlled

3 Keltner explained that no true controlled studies would be possible within
the bounds of medical ethics: Dividing children into two groups and then intention-
ally abusing one of the groups would be a perversion of science of Orwellian
proportions.

4 Keltner referred in particular to a study "done by Sorenson and Snow in the
early 90s," which "found that 72 percent of the children that they evaluated [who
had been sexually abused] initially denied abuse."

research on the issue of delayed reporting and, thus, "no way
to test the rate of error." Defendant also noted that Keltner

"didn't give any evidence that this * * * really what is syn-
drome evidence about delayed reporting, she cited no spe-
cific literature to support that. She said something about
when children have abnormal exams showing abuse that
90 percent of the time they delay in reporting. But I don't
think that's enough."

Finally, defendant argued that the delayed reporting testi-
mony was irrelevant and unfairly prejudicial because "the
state ha[d] failed to establish any link between this child and
a delay in reporting, only that children tend to delay in
reporting."

Ultimately, the trial court rejected defendant's
objections and ruled that Keltner could testify "with respect
to the scientific validity of delayed reporting as a character-
istic of sexual abuse." The court's ruling took place in this
brief colloquy:

"[THE COURT:] Defense Motion in Limine No. 2,
whether the expert is qualified, we already said that the
expert is qualified. Whether the expert can give testimony
with respect to the scientific validity of delayed reporting as
a characteristic of sexual abuse, I will allow that testimony
based on the references to the literature, the peer review of
cases that are done both nationally-or nationally and here
locally.

"I think it's the type of evidence that-I think the testi-
mony has established that it's the type of evidence that is
found to be scientifically valid within the group of people
who specialize in this area.

"Having said that, I would have expected to have a little
more detail in the-in the presentation with respect to [the]
delayed reporting phenomen[on] itself.

"[THE PROSECUTOR:] I'm sorry?

"[THE COURT:] I would have expected to have a little
more detail with respect to delayed reporting as a charac-
teristic of this phenomenon. And specifically we didn't hear
any testimony about what constitutes delayed reporting. Is
it an hour, is it a day, is it a month, is it a year, is it ten
years, what is it?

"[THE PROSECUTOR:] I will certainly flesh that out.

"[THE COURT:] All right. So I would expect that. So
I'm-as I said, I'm going to allow that testimony."

As that colloquy reveals, the trial court's ruling was
conditional in nature: Keltner could testify, but the trial
judge expected her to explain more fully what "delayed
reporting" was. Moreover, her testimony remained subject to
any specific objections that defendant might make at trial.
Also implicit in the court's ruling was the idea that defendant
could move for a limiting instruction on the uses that the jury
could make of the testimony.

The case proceeded to trial before a jury. In its case-
in-chief, the state presented the victim's testimony, together
with a videotape of an interview of the victim by CARES per-
sonnel. It also presented testimony from several other wit-
nesses, including Keltner. Defendant took the stand and
denied any wrongdoing. The jury convicted him of all
charges, and these appellate proceedings ensued.

We emphasize the limited nature of the issue before
us in this case. Defendant does not assign error to any ruling
made by the trial court after the jury was empanelled
and sworn. (Defendant made only a single objection during
Keltner's testimony at trial, and he does not assign error to
the ruling on that objection.) Instead, defendant rests his
arguments entirely on the trial court's rulings at the conclu-
sion of the OEC 104 hearing. Defendant's strategy is a per-
missible one, of course, but it highlights both the utility and
the limits to the utility of motions in limine: A general ruling
that a certain type of evidence (even scientific evidence) is
minimally relevant under OEC 4015 and OEC 7026 does not
relieve a party of the obligation to make specific objections to

5 OEC 401 provides:

" 'Relevant evidence' means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence."

6 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."

discrete pieces of that evidence at trial, if the dynamics of the
trial process reveal other grounds for objection.

We turn, then, to the three arguments that defen-
dant made at the close of the OEC 104 hearing. As noted,
they were that (1) Keltner's testimony did not meet the legal
test for "scientific" evidence; (2) the evidence was not rele-
vant; and (3) the evidence was unfairly prejudicial. We
address the latter two arguments first. In doing so, we add
the following contextual observation: Much of defendant's
argument, both at the OEC 104 hearing and to this court,
consists of asserting that Keltner's delayed reporting testi-
mony was being offered to show that the victim's delayed
reporting affirmatively established that the victim had been
sexually abused.

In considering that argument, however, two things
must be kept in mind: (1) Because defendant's case was built,
in part, on the proposition that the victim's delay in reporting
gave rise to an inference that she had not been abused,
Keltner's testimony served a legitimate purpose-to show
that there was a scientific basis for rejecting that proposi-
tion-i.e., a treating health care professional would not nec-
essarily view the delay as a reason to discount the victim's
story. (2) Even if, at the OEC 104 hearing, Keltner character-
ized delayed reporting as a normal "part of the disclosure
process" and in other ways suggested through her testimony
that delayed reporting might have some affirmative diagnos-
tic value, she never stated that delayed reporting was affir-
matively probative of whether sexual abuse actually had
occurred. In fact, she specifically conceded that delayed
reporting itself was not a diagnostic tool in that regard.7 In

7 Defendant's counsel asked Keltner the following questions, among others,
and received the following answers:

"[DEFENSE COUNSEL:] In a situation where you don't have a
confession-

"[THE WITNESS:] Yes.

"[DEFENSE COUNSEL:] -and you don't have an abnormal [physical]
exam and you don't have a-a verdict at trial, there is no way to distinguish
between someone who has delayed in reporting who is telling the truth and
someone who's delayed in reporting [who] is not telling the truth?

"[THE WITNESS:] There is no single test that can give you a hundred per-
cent validity and reliability. * * *

"[DEFENSE COUNSEL:] But there's no test at all, right, Doctor?

light of those facts, we think that it was defendant's respon-
sibility to point out to the trial court-either by means of
some generalized discussion of the matter at the OEC 104
hearing or by means of specific objections at trial-the line
between testimony that tended to rebut defendant's theory
that the victim's delayed reporting was affirmative evidence
of fabrication and testimony that instead presented delayed
reporting as affirmative evidence of abuse. Defendant did not
do that, and did not make distinct arguments about the rele-
vance, unfair prejudice, and scientific validity of the two
kinds of evidence.

With those points in mind, we turn first to the OEC
401 issue, i.e., the issue of relevance. As noted, defendant's
theory of the case was that the victim was fabricating. One
part of that theory was that a trier of fact could infer that the
victim's delay in reporting tended to show that the events
about which the victim testified had never happened. But
Keltner's testimony that similar delayed reporting often is
seen in verified cases of child sexual abuse tended to counter
that inference. The testimony was relevant in that respect at
least, i.e., it had some "tendency to make the existence of [a]
fact that is of consequence to the determination of the action
more probable or less probable." OEC 401.

It could be argued from this record that the state had
a further purpose in mind: In the OEC 104 hearing, the pros-
ecutor stated that the evidence should be admitted because it
was "an important piece of the diagnostic process." But the
existence of that second purpose-if, in fact, it did exist-
adds nothing to the inquiry whether Keltner's testimony
could be admitted for the reason already discussed: If defen-
dant was attempting to make something of the victim's delay

"[THE WITNESS:] * * * [Y]ou are correct, there's no-

"[DEFENSE COUNSEL:] You said there's no 100 percent test, but there's
no way to tell at all, is there, under the hypothesis I've given you?

"[THE WITNESS:] No. * * **

Thereafter, defense counsel asked one other important question:

"[DEFENSE COUNSEL:] * * * [W]hat [another recognized expert] says is
that this syndrome [of delayed reporting] is not a diagnosis but a-but a coun-
seling tool; is that right?

"[THE WITNESS:] Correct. * * **

in reporting (and he was), then the state was entitled to meet
that argument. If the state sought to elicit the testimony for a
different purpose as well, then defendant was free to object to
Keltner's testimony on that more limited basis. See, e.g.,
State v. Camarena, 344 Or 28, 33 n 3, 176 P3d 380 (2008)
(objection to evidence as a whole not basis for reversal, if
some of evidence was admissible). He did not do so. Defen-
dant also was free to seek an appropriate limiting instruc-
tion. But, again, he did not.8 If defendant thought that
Keltner was adding a different (and irrelevant) "spin" to the
relevant facts that she was reporting, then it was for the
defendant to point that out and to seek to limit her testimony.
The trial court did not err in ruling that, in this context,
Keltner's testimony was relevant.

Neither, in our view, did the trial court demonstrably
err in ruling that Keltner's testimony did not violate OEC
403.9 That is, the court was entitled, on this record, to rule
that the probative value of Keltner's testimony was not sub-
stantially outweighed by the danger of unfair prejudice or
confusion. We already have established that the testimony
was relevant in that it challenged defendant's theory that the
victim's delayed reporting affirmatively indicated that her
report was a fabrication. But defendant contends that the
testimony posed a substantial danger of unfair prejudice-
the likelihood that jurors would find that the complainant in
fact was abused simply because she waited to make her
allegations.

In our view, that danger of unfair prejudice is not
inherent in the central thesis of Keltner's testimony that

8 The trial court's ruling was not a model of clarity, mentioning, as it did,
"delayed reporting as a characteristic of sexual abuse." But the ruling also was cor-
rect at least in part-as we have explained-and defense counsel was left with the
awkward necessity of accepting the outcome or pursuing clarification. We are not
called on in this case to decide whether the "delayed reporting" phenomenon ever
would be admissible as a characteristic of a diagnosis of "sexual abuse." Respecting
the testimonial use of that diagnosis, see State v. Southard, 347 Or 127, 218 P3d
104 (2009).

9 OEC 403 provides:

"Although relevant, evidence may be excluded if its probative value is sub-
stantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay or needless
presentation of cumulative evidence."

delayed reporting is common in verified cases of child sexual
abuse. And, if defendant was of the view that Keltner was
embellishing that central thesis in a way that was unfairly
prejudicial-by suggesting that delayed reporting actually
might be an indicator of sexual abuse-then defendant
should have made it clear to the court that he was objecting
to that embellishment. Defendant did not do that. Again, we
reject defendant's claim of error.

Finally, we turn to defendant's contention that
Keltner's opinion testimony given at the OEC 104 hearing
was not admissible as scientific evidence. Defendant argues
that the state failed to establish that Keltner's delayed disclo-
sure testimony met the standard for admissibility of scien-
tific evidence described in State v. Brown, 297 Or at 417, and
State v. O'Key, 321 Or at 303-05.

There is no real dispute with regard to the underly-
ing premise of defendant's argument-that the testimony
was offered as "scientific evidence" and therefore requires a
Brown foundation to be admissible. Instead, the state
acknowledges that State v. Marrington, 335 Or 555, 73 P3d
911 (2003), establishes defendant's premise. In Marrington,
this court held that an expert's testimony that delay in
reporting is a "very prevalent characteristic of abused chil-
dren" would be perceived as scientific evidence by a trier of
fact and, as such, must be shown to be scientifically valid
before it is admissible. Id. at 563-64. In deciding that point,
this court focused on the fact that the expert in that case had
presented herself as having a scientific background and had
claimed that her knowledge was based on science:

"An expert * * * who has a background in behavioral sci-
ences and who claims that her knowledge is based on stud-
ies, research, and the literature in the field, announces to
the factfinder that the basis of her testimony is 'scientific,'
i.e., is grounded on conclusions that have been reached
through application of a scientific method to collected data.
Because that is how the factfinder would understand it, a
court has a duty to ensure that such information possesses
the necessary indices of scientific validity."

Id. at 563-64. As our summary of Keltner's testimony in the
OEC 104 hearing makes clear, she similarly was presenting

herself as an expert in her field whose knowledge was based,
at least in part, on studies, research, and scientific literature.
Consequently, her testimony regarding delayed disclosure is
scientific evidence and must comply with the standard
described in Brown and O'Key for admission of such evidence.

Under Brown and O'Key, scientific evidence is admis-
sible if it is relevant under OEC 401,10 helpful to the trier of
fact under OEC 702,11 and not subject to exclusion under
OEC 403.12 Brown, 297 Or at 409; O'Key, 321 Or at 297-99.
Underpinning the entire admissibility analysis, however, is
the requirement that the evidence be shown to be scientifi-
cally valid. See Marcum v. Adventist Health System / West,
345 Or 237, 245, 193 P3d 1 (2008) (so holding); O'Key, 321 Or
at 301 n 19 ("scientific validity [is] the linchpin of admissibi-
lity"). To determine that issue, and depending on the nature
of the evidence in question, a court may be required to con-
sider a number of factors, including:

"(1) The technique's general acceptance in the field;

"(2) The expert's qualifications and stature;

"(3) The use which has been made of the technique;

"(4) The potential rate of error;

"(5) The existence of specialized literature;

"(6) The novelty of the invention; and

"(7) The extent to which the technique relies on the sub-
jective interpretation of the expert."

Brown, 297 Or at 417.13

10 OEC 401 is set out above, 347 Or at 116 n 5.

11 OEC 702 is set out above, 347 Or at 116 n 6. Generally, scientific evidence
will assist the trier of fact if it is scientifically valid and properly can be applied to
the facts at issue.

12 OEC 403 is set out above, 347 Or at 119 n 9.

13 As noted, those factors for analyzing scientific validity initially were set out
in Brown. This court expanded on them in O'Key, adopting, as "an appropriate fur-
ther development," the logic and a slightly different formulation of the factors
articulated by the United States Supreme Court in Daubert v. Merrell Dow
Pharmaceuticals, 509 US 579, 113 S Ct 2786, 125 L Ed 2d 469 (1993). O'Key, 321 Or
at 306. For the purposes of our analysis in this case, the distinction between the
two sets of standards is not significant.

In considering the question of scientific validity
(which generally is resolved as a preliminary fact question in
an OEC 104 hearing, as it was in this case), courts must bear
in mind that the foregoing factors are not exclusive and are
not to be used as a mechanical checklist requiring an affir-
mative finding with respect to each factor. O'Key, 321 Or at
300. Whatever factors may be relevant in a particular case,
the party offering the scientific evidence at issue (in the pres-
ent case, the state) has the burden of establishing that it is
scientifically valid.

Before applying the multifactor test to the evidence
in question, it is important to restate the purpose for which
the scientific evidence was offered. As we already have noted,
the core of Keltner's testimony was her assertion that
delayed reporting often occurs in children who verifiably
have been sexually abused. Defendant had signaled his
intention to defend on the theory that the victim was fabri-
cating and that her delay in reporting was evidence of that
fabrication. As we have explained, the most obvious (and per-
missible) function of Keltner's testimony was to contradict
defendant's claim that delay in reporting demonstrated
fabrication.

Turning to defendant's arguments under the multi-
factor test, the state argues that defendant did not preserve
his present "scientific foundation" argument in its entirety
because, in the OEC 104 hearing, he addressed only two of
the five Brown factors-the "potential rate of error" and the
existence of a "specialized literature"-on which he now
relies. The state asserts that, because defendant did not alert
the trial court that he had concerns about the sufficiency of
the state's scientific foundational evidence with regard to
other factors, we should not consider those factors in our
Brown analysis.

In general, we agree with the premise of the state's
argument: In multifactor foundation cases like the present
one, for example, the trial court reasonably might assume
that some factors are not in dispute if no one mentioned
them. However, we think that defendant's arguments in this
case were not as the state perceives. When considered in the
context of defense counsel's cross-examination of Keltner at

the OEC 104 hearing, we think that defendant's arguments
at least should have alerted the trial court that two other
Brown factors-the "general acceptance of [the technique] in
the field" and "use which has been made of the theory"-were
implicated. That is as far, however, as the arguments that
defendant made fairly may be said to reach.14 We turn, then,
to the relevant Brown factors. In assessing those factors, we
rely on the evidence presented at the OEC 104 hearing. 15

· General Acceptance in the Field. We note at the outset
that Keltner's credentials as an expert are unchallenged, and
her qualification to give scientific evidence in her field is
unassailable. Instead, we focus on the narrower issue
whether her testimony concerning delayed reporting was
itself scientific. The first factor that we consider is "the the-
ory's general acceptance in the field." Keltner testified that
the phenomenon of delayed reporting in sexually abused chil-
dren was a "fairly well understood topic" and that "the idea
that when children report abuse * * * that [it] * * * is a proc-
ess and not a single event * * * is well understood." From that
testimony by that witness, the trial judge could conclude that
there was general agreement in the field that delayed report-
ing by a child was not inconsistent with the child's having
been sexually abused. That criterion-to the extent it was
applicable-was met.

· The Use Which Has Been Made of the Technique. As
we have discussed, we assess Keltner's testimony on the
assumption that it was relevant to show that experts in the
field would not necessarily regard the evidence of delayed
reporting as proving that the victim had not been abused. So

14 Of course, the trial court was free to address all the Brown factors if it wished
to do so. We merely observe here that, where a trial court has ruled that certain evi-
dence is admissible as "scientific evidence," a party ordinarily may not predicate a
claim of reversible error on the court's failure to address one or more criteria that
the party did not argue.

15 In O'Key, this court indicated that its assessment of the factors would be
based on the "scientific testimony and evidence given at the * * * hearing in the
trial court, pertinent legal and medical literature on the subject received in evi-
dence at that hearing, and numerous other sources in the area." 321 Or at 308-09.
In the present case, the prosecution (which, as the proponent of Keltner's delayed
disclosure testimony, bore the burden of demonstrating its scientific validity) did
not submit any literature or other documentation, but relied entirely on Keltner's
presentation.

understood, Keltner's testimony was not really about a "tech-
nique" or its "use." This criterion thus is inapposite in the
context of this case.

· The Potential Rate of Error. This criterion has limited
utility in the context of this case for two reasons: First, as
already noted, controlled studies are not possible. See 347 Or
at 114 n 3. Lack of controlled studies is not, in any event, an
absolute bar to the admission of expert testimony by quali-
fied clinicians, which was the kind of testimony Keltner gave.
See Marcum, 345 Or at 252 (so stating); Jennings v. Baxter
Healthcare Corp., 331 Or 285, 305-06, 14 P3d 596 (2000) (so
holding respecting differential diagnosis by treating physi-
cian). That means that other factors must play a more signif-
icant role. Second, given the permissible use of the evidence
to counter defendant's factual theory about delayed report-
ing, a "rate of error" in that respect is difficult to postulate.

Even assuming, however, that numbers are rele-
vant, Keltner gave evidence respecting numbers. She repeat-
edly stated that sexually abused children commonly delay in
reporting, but further acknowledged that "a small percent-
age * * * report immediately."16 She also acknowledged that
there were studies that show that children sometimes lie, but
she then stated that "the thing they're most likely to lie about
is that abuse did not occur rather than lying falsely about
abuse occurring." Keltner did not identify the "studies" to
which she referred and did not offer any statistical analysis of
the prevalence of delayed false accusations. Defendant, for
his part, did not ask for verification or challenge her
assertion, as an expert, that such studies existed. As noted,
however, Keltner did agree with defense counsel, on cross-
examination, that there was no way to distinguish a false
delayed report from a true delayed report, in the absence of
physical evidence or other corroboration.

The state contends that Keltner's acknowledgment
in no way detracts from the thrust of Keltner's testimony that
delayed disclosure is not a factor that would lead a profes-
sional to rule out the possibility that a child had been
molested sexually. The state notes that Keltner's narrow

16 Keltner explained that such immediate disclosures occurred "particularly
with younger kids where it's an accidental disclosure, where they really don't have
the capability to keep it a secret."

assertion is entirely verifiable and, in fact, has been verified
by the "Sorenson and Snow" study that Keltner mentioned
(and which, according to Keltner, found that, out of a group of
"confirmed" victims of sexual abuse, 72 percent delayed in
disclosing). We agree with the state. Keltner's assertions
were admissible for the purpose that the state describes, and
the trial court did not err in so ruling.

· The Existence of a Specialized Literature. At the OEC
104 hearing, Keltner responded affirmatively when the pros-
ecutor asked if there has been specialized, peer reviewed lit-
erature devoted to the issue of delayed disclosure. She testi-
fied that

"what the literature looks like if you're looking at national
studies, for example, there was one by-done by Sorenson
and Snow in the early '90s, but really well done, and I con-
tinue to use it as a reference. They found that 72 percent of
the children that they evaluated initially denied abuse.

"And since that time, others have spent more studies
actually looking at adults who are known to have been
abused as children or raped as children, and again, what
you find is even adults looking back at their abuse as chil-
dren, that very large percentages never reported, never dis-
closed it, and that those that do disclose tend to delay in
their disclosure."

Keltner later clarified that the Sorenson and Snow study
looked at cases that were confirmed by means of an abnormal
physical examination, perpetrator confession, or perpetrator
conviction, and that it looked at both delayed disclosures and
initial denials. The factors of abnormal physical examina-
tion, perpetrator confession, and perpetrator conviction were
used as objective verifiers in the study. Keltner obviously
assumed that the study paralleled the situation in cases that
lacked those objective verifiers, and defendant does not argue
even now that the study was irrelevant because, for example,
the present case involves neither an abnormal physical
examination nor a confession.17 Keltner also referred to
"studies" and "the literature" in various other contexts, but

17 Keltner also described a small, informal CARES study of children with
abnormal physical examinations, which found that 90 percent of those children
had delayed in disclosing sexual abuse. She acknowledged that the study was not
peer reviewed and was not rigorous. We do not consider it as part of the state's por-
trayal of specialized literature at the OEC 104 hearing.

was not asked to provide more detail. Keltner's testimony on
the point thus was scanty, but it was sufficient to permit the
trial judge to be satisfied that this criterion had been met.

· Other Factors. Brown refers to two additional
factors-the novelty of the technique and the "extent to
which the technique relies on the subjective interpretation of
the expert." Brown, 297 Or at 417. Keltner was not cross-
examined about those factors, and defendant does not
attempt to make a separate issue respecting either or both of
them here. Even were he to do so, however, the trial court
was entitled to find from Keltner's testimony that the state's
particular use of the phenomenon of delayed reporting was
not unduly novel and did not rely improperly on the subjec-
tive interpretation of the expert.

Having completed our consideration of the Brown
factors as they apply to the state's proffered evidence of the
delayed reporting phenomenon presented in the OEC 104
hearing, we conclude that, on the record before it, the trial
court was entitled to determine that Keltner's testimony
about the delayed reporting phenomenon survived the objec-
tions to it that were made at that hearing, subject to qualifi-
cations that defendant did not later choose to raise at trial.
There was no reversible error.

The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.

S055142, Opinion — State v. Perry

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