524 July 16, 2015 No. 27
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
CHAD ALLEN BEAUVAIS,
Petitioner on Review.
(CC 06FE0574SF; CA A147355; SC S062346)
En Banc
On review from the Court of Appeals.*
Argued and submitted March 9, 2015, at Willamette
University College of Law, Salem, Oregon.
Neil F. Byl, Deputy Public Defender, Salem, argued the
cause and filed the brief for petitioner on review. With him
on the brief was Peter Gartlan, Chief Defender.
Carson L. Whitehead, Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent
on review. With him on the brief were Ellen F. Rosenblum,
Attorney General, and Anna M. Joyce, Solicitor General.
BREWER, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
______________
* Appeal from Deschutes County Circuit Court, Stephen P. Forte, Judge. 261
Or App 837, 322 P3d 1116 (2014).
Cite as 357 Or 524 (2015) 525
Case Summary: Defendant moved in limine to exclude expert witness testi-
mony concerning a diagnosis of child sexual abuse as unfairly prejudicial under
OEC 403, as well as expert witness testimony concerning the evaluative criteria
underlying that diagnosis as impermissibly commenting on the credibility of the
complaining witness. The trial court denied defendant’s motion, a jury convicted
defendant of first-degree sexual abuse, and the Court of Appeals affirmed. Held:
(1) There is sufficient physical evidence of abuse so that a medical diagnosis of
sexual abuse ordinarily is admissible under OEC 403 if physical evidence mean-
ingfully corroborates the alleged type of abuse; the expert significantly relies on
that physical evidence in making the diagnosis of sexual abuse; and the causal
relationship between the physical evidence and the diagnosis is sufficiently com-
plex such that a lay trier of fact cannot assess the connection as well as an expert.
(2) When a medical diagnosis of child sexual abuse is adequately supported by
physical evidence of abuse and is otherwise admissible, the expert’s testimony
concerning the diagnosis ordinarily can include a description of the evaluative
criteria underlying the diagnosis and the characteristics of the child that led
to the diagnosis, so long as the testimony is not a direct comment on the child’s
credibility or a statement that is tantamount to stating that the child is telling
the truth.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
526 State v. Beauvais
BREWER, J.
Defendant appeals a judgment convicting him of
a single count of first-degree sex abuse. ORS 163.427. He
assigns error to the circuit court’s denial of his motion
in limine to exclude expert witness testimony concerning a
diagnosis of child sexual abuse, as well as the evaluative
criteria underlying that diagnosis that, in defendant’s view,
impermissibly commented on the credibility of the complain-
ing witness in this case.1 The Court of Appeals affirmed
defendant’s conviction. State v. Beauvais, 261 Or App 837,
322 P3d 1116 (2014). For the reasons now explained, we
affirm the decision of the Court of Appeals and the judg-
ment of the circuit court.
I. FACTS AND PROCEDURAL BACKGROUND
At the time of the charged incident, KS was ten
years old.2 While babysitting defendant’s son, KS and her
friend, JC, fell asleep on the living room floor of defendant’s
home. In the early morning, KS woke up to find defendant
kneeling over her with his hand down her pants, touching
her vaginal area. When a door opened down the hall, defen-
dant left the room, and KS sat up. Defendant returned to
the room and asked KS if she was okay. KS replied that she
had a headache and would go back to sleep. When defendant
left the room again, KS woke JC and told her that defendant
had touched her “private area” and that she wanted to go
home. KS called her mother and asked to be picked up from
defendant’s home. JC’s father picked the girls up and, based
on KS’s disclosure that defendant had touched her private
area, took the girls to the police station.
Later that day, White, a sexual assault nurse
examiner, examined the girls. In her examination of KS,
White found increased redness and swelling of the clitoris
and upper labial folds, increased redness in the upper and
1
Defendant also assigned error in the Court of Appeals to the denial of
his motion to sever charges and the denial of a motion for mistrial. The Court
of Appeals rejected those assignments of error, and defendant did not pursue
his challenge to those parts of the Court of Appeals’ decision before this court.
Accordingly, we do not address them on review.
2
On review, defendant challenges the trial court’s pretrial rulings. We take
the facts from the evidence brought out at the pretrial hearing. To the extent that
a dispute exists, we state the facts consistently with the trial court’s rulings.
Cite as 357 Or 524 (2015) 527
lower portions of the hymen, and some abrading of the labia.
White referred KS to the Kids Intervention and Diagnostic
Service Center (KIDS Center), a child abuse intervention
center, for a follow up evaluation. About six weeks after the
incident, Glesne, a staff interviewer, interviewed KS at the
KIDS Center, and Dr. Kyriakos performed a physical exam-
ination of KS. Following that examination, Kyriakos made
a diagnosis that KS had been sexually abused.
Defendant was charged with one count of first-
degree sexual abuse of KS.3 Before trial, defendant moved
in limine to exclude evidence of the KIDS Center evaluation.
In that motion, defendant sought to preclude Kyriakos and
Glesne from testifying “as to what [KS] told them and * * *
that in their opinion they believe that [KS] was sexually
abused.” Defendant argued that such testimony was hear-
say and without sufficient foundation. The state responded
that the evidence was admissible because it was relevant, it
would assist the trier of fact under OEC 702,4 and it should
not be excluded under OEC 403.5
In a reply brief, defendant expanded the scope of his
motion in limine by seeking to exclude “evidence of a diag-
nosis of child sexual abuse” and “any and all other evidence
that possesses the increased potential to influence the trier
of fact as scientific evidence, technical evidence, and/or other
evidence concerning specialized knowledge.” Defendant
argued that such evidence was irrelevant under OEC 401,
invalid as scientific evidence under OEC 702, and unfairly
prejudicial under OEC 403. See State v. Brown, 297 Or 404,
3
Defendant also was charged with two counts of attempted first-degree sex-
ual abuse of JC relating to a different incident. Those charges were dismissed at
trial.
4
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.”
5
OEC 403 provides:
“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay or needless
presentation of cumulative evidence.”
528 State v. Beauvais
438-39, 687 P2d 751 (1984) (setting out test for admission of
scientific evidence). Defendant also asserted that the KIDS
Center evidence as a whole impermissibly commented on
KS’s credibility. As pertinent to the issues before us, defen-
dant argued that
“[t]he scientific, technical or other specialized knowledge
will not assist the trier of fact in understanding the evi-
dence or determining a fact in issue. Defendant will argue
that the proffered testimony does not constitute a complex
or ‘superficially bizarre’ phenomenon outside the experi-
ence of most jurors. Rather, the proffered testimony con-
cerns a straight-forward matter well within the common
experience of most jurors.”
Defendant also argued that “[a]ny such evidence would be
an impermissible comment on the credibility of another wit-
ness,” citing State v. Middleton, 294 Or 427, 438, 657 P2d
1215 (1983) (“[I]n Oregon[,] a witness, expert or otherwise,
may not give an opinion on whether he believes a witness is
telling the truth.”).
At a pretrial hearing on defendant’s motion in limine,
Kyriakos testified about the KIDS Center interview and
evaluative processes, how a diagnosis of child sexual abuse
is made, and her evaluation of KS. Kyriakos stated that,
in evaluating a child for sexual abuse, she looks for phys-
ical signs that are “diagnostic” of abuse. She also gathers
histories from the child, caregivers, and others, including
law enforcement and other referral sources. According to
Kyriakos, the KIDS Center follows accepted national and
state criteria, which, in addition to physical evidence, include
consideration of (1) consistency in the core details that the
child has given over time to law enforcement, caregivers,
and others, as well as the information the child provides at
the KIDS Center; (2) whether the child was able to give mul-
tiple, in depth, and contextual details; (3) whether the child
provided information in more than one media form, includ-
ing verbally, through drawings, and by using the child’s
own body as a reference; (4) whether the disclosure of abuse
was made spontaneously or whether the child was asked
about it first; (5) whether the child provided specific details
regarding sensory-type information, such as something that
Cite as 357 Or 524 (2015) 529
the child felt; and (6) behavioral changes.6 According to
Kyriakos, behavioral changes do not necessarily establish
that abuse occurred, but they are “concerning.”
Insofar as this case is concerned, Kyriakos testified
that she reviewed White’s report of her physical examination
of KS and noted that White had found redness, swelling,
and abrasions on KS’s vaginal area. Those physical findings
were important to Kyriakos because White had examined
KS on the day of the charged incident; Kyriakos could not
discern an explanation for the redness, swelling, and abra-
sions, other than sexual abuse. Kyriakos did not find any
physical signs of sexual abuse in her examination of KS,
but she was not surprised, because those symptoms usually
resolve within days.
Kyriakos testified at length about her application of
the evaluative criteria to KS. She stated that the core details
that KS had described were consistent with the core details
that she had recounted to police officers, her mother, and
White. In addition, KS provided multiple details, including
a description of the room and furniture where the abuse had
occurred and how defendant’s body had been positioned. KS
also described the incident through multiple media, includ-
ing a verbal description, a drawing, and by using her own
body as a reference. During the interview, KS got down
on the floor to demonstrate defendant’s position when she
woke up to find him on top of her. She also used her body
to describe where defendant had touched her. During the
physical examination, Kyriakos placed her fingers on the
outside of KS’s labia, and KS was able to tell Kyriakos that
defendant had touched her “more inside.” Kyriakos stated
that KS’s disclosure of the abuse also had been spontaneous,
in that she woke JC to tell her what had just happened and
6
Those criteria are described in the Forensic Evaluation Critical Analysis
Guide, published by the National Children’s Advocacy Center. The criteria also
are part of the Oregon Medical Guidelines for Evaluation of Sexual Abuse in
Children and Adolescents and the Oregon Interviewing Guidelines, which estab-
lish practice standards for child abuse investigations in Oregon and are followed
by the KIDS Center and other child abuse intervention centers in Oregon. In
State v. Southard, 347 Or 127, 138-39, 218 P3d 104 (2009), this court concluded
that “the methodologies that the KIDS Center used to diagnose child sexual
abuse” indicated that “the diagnosis [of child sexual abuse] possesses sufficient
indicia of scientific validity to be admissible.”
530 State v. Beauvais
then promptly contacted her mother. Furthermore, KS used
sensory details to describe the incident, stating that she had
felt a stinging sensation after defendant had touched her.
According to Kyriakos, that detail “would only likely be known
if the child had actually experienced the sensation.” Finally,
Kyriakos stated that behavioral changes that KS’s mother
had observed in KS since the incident—being more fearful,
not wanting to be alone, not wanting to sleep by herself, a
change in appetite, sadness, and withdrawal—were relevant
to her evaluation. Based on her overall evaluation, Kyriakos
testified that she had concluded to a reasonable degree of
medical certainty that KS had been sexually abused.
At the close of the pretrial hearing, defendant
objected to the testimony of Glesne and Kyriakos, as well as
the KIDS Center report and a DVD of Glesne’s interview of
KS, on the ground that the factual determination whether
KS had been sexually abused was not complex and expert
testimony was not needed. Defendant reiterated his general
objection that the KIDS Center evidence was a comment on
the credibility of the witness and that it was “just [a] tech-
nique[ ] to be able to introduce evidence to juries to bolster
the credibility of child witnesses, to convince the jury that
they should convict based upon a blanket imprimatur of
medical certainty.” According to defendant, the evaluative
criteria to which Kyriakos testified and that were discussed
in the report were “simply a shorthand way of saying that
the child is believable.”
In addition to the foregoing general objections,
defendant specifically objected to the following exchange in
Glesne’s DVD interview of KS on the ground that it was an
impermissible comment on KS’s credibility:
“Q: Has anybody … or did anybody, I guess is a better
way of putting this, told you what to say today?
“A: No.”
The trial court denied defendant’s motion in limine.
At trial, Zancanella, the KIDS Center interviewer who
had interviewed JC, and Glesne described the criteria used in
evaluating child sexual abuse. Glesne also testified about her
interview of KS, and Kyriakos testified about the details of her
Cite as 357 Or 524 (2015) 531
examination and evaluation of KS and gave her medical diag-
nosis of child sexual abuse. Defendant did not object to any of
that testimony. Nor did defendant object to the admission into
evidence of the KIDS Center report or the DVD.
A jury ultimately convicted defendant of first-degree
sexual abuse, and the trial court sentenced him accordingly.
As noted, on appeal, defendant assigned error to the trial
court’s order denying his motion in limine. Before the Court
of Appeals, defendant reprised his pretrial arguments that
Kyriakos’s diagnosis of sexual abuse was inadmissible and
that the KIDS Center evidence explaining the bases for that
diagnosis constituted impermissible vouching for KS’s cred-
ibility. In a refinement of those arguments, defendant relied
on this court’s decision in State v. Southard, 347 Or 127,
140-41, 218 P3d 104 (2009), for the proposition that a diag-
nosis of sexual abuse that is based in part on physical evi-
dence, but also includes evidence that the complainant exhib-
ited behavior consistent with having been sexually abused,
is inadmissible; defendant also relied on this court’s decision
in State v. Lupoli, 348 Or 346, 362, 234 P3d 117 (2010), for
the proposition that, even if a diagnosis of sexual abuse is
admissible, expert witness testimony about the attributes
of a truthful statement, followed by testimony that another
witness’s statement contained those attributes of truth, is
inadmissible to explain such a diagnosis.7
The Court of Appeals affirmed the trial court’s denial
of defendant’s motion in limine. Relying in part on Southard,
that court concluded that the admissibility of a diagnosis
of sexual abuse when physical evidence of abuse is present
is subject to a balancing test under OEC 403. Beauvais,
261 Or App at 843. Applying factors that it previously had
described in State v. Ovendale, 253 Or App 620, 630, 292
P3d 579 (2012), the court concluded that the diagnosis was
admissible because: (1) the significance of the physical evi-
dence was “a complex factual determination that an expert
was better able to make than a layperson;” (2) the physical
evidence had corroborated the type of abuse alleged in this
case; and (3) Kyriakos had relied on the physical evidence in
7
The charged incident occurred in 2006. Defendant’s motion in limine was
decided in 2007. Both Southard and Lupoli were decided after the trial court
decided the motion in limine but before defendant was tried and convicted in 2010.
532 State v. Beauvais
arriving at a diagnosis that KS had been sexually abused.
Beauvais, 261 Or App at 843-44.
The Court of Appeals further concluded that the
expert testimony explaining and applying the subsidiary
principles of the sexual abuse diagnosis—the characteristics
that bear on an evaluation of a child for sexual abuse—and
KS’s specific characteristics in relation to those principles,
were “explanations for the admissible diagnosis of sexual
abuse that are not tantamount to comments on truthful-
ness and that would assist the jury in determining whether
[KS’s] complaints were well founded.” Id. at 849.
We allowed defendant’s petition for review to con-
sider the admissibility of a medical diagnosis of child sex-
ual abuse when physical evidence of abuse is present and
whether the expert testimony explaining the evaluative cri-
teria underlying the diagnosis in this case impermissibly
vouched for the credibility of KS.
II. ANALYSIS
A. The Record on Review
As pertinent to both issues before us, we note that
defendant challenges the trial court’s pretrial denial of his
motion to exclude evidence, not the particular evidence that
was admitted at trial. That procedural posture frames our
review. To be sure, a pretrial objection to evidence can pre-
serve the issue of its admissibility for review. State v. Foster,
296 Or 174, 183-84, 674 P2d 587 (1983) (when defendant
made sufficient offer of proof of what would happen at trial
to permit trial court to rule intelligently on admissibility of
evidence and court made final ruling, “[t]here was no need
for any further procedure to preserve the assignment of
error”). However, the scope of the record on review is lim-
ited to the record before the trial court when it made the
challenged ruling. State v. Pitt, 352 Or 566, 574-75, 293 P3d
1002 (2012).
B. Admissibility of the Medical Diagnosis of Child Sexual
Abuse
The starting point for our analysis of defendant’s
challenge to the medical diagnosis of child sexual abuse in
this case is this court’s decision in Southard. In that case,
Cite as 357 Or 524 (2015) 533
the defendant challenged a diagnosis of child sexual abuse
from a KIDS Center physician that was based entirely on
the child’s statements and history. The issue before the
court was “whether a diagnosis of ‘sexual abuse’—i.e., a
statement from an expert that, in the expert’s opinion, the
child was sexually abused—is admissible in the absence of
any physical evidence of abuse.” Southard, 347 Or at 142.
The court first concluded that a medical diagnosis of child
sexual abuse was relevant under OEC 401 and, as noted,
that the KIDS Center methodologies possessed sufficient
indicia of scientific validity for the diagnosis to be admissi-
ble under OEC 702. Id. at 138-39. However, the court held
that, in the absence of corroborating physical evidence, the
diagnosis was inadmissible under OEC 403 because its pro-
bative value was substantially outweighed by the danger of
unfair prejudice. The probative value was slight, the court
reasoned, because a diagnosis of child sexual abuse differs
from other medical diagnoses that “turn on an abstruse
matter of science,” in that it purports to determine whether
conduct—an act of sexual abuse—occurred, and that deter-
mination is often within the competence of a lay trier of fact.
Id. at 134-35. Because the diagnosis in Southard did not tell
the jury anything that it could not determine on its own, its
probative value was slight. Id. at 140.
On the other side of the scale, the court found that
the risk of prejudice was great:
“The fact that the diagnosis came from a credentialed
expert, surrounded with the hallmarks of the scientific
method, created a substantial risk that the jury may be
overly impressed or prejudiced by a perhaps misplaced aura
of reliability or validity of the evidence. * * * [T]he diagno-
sis is particularly problematic because the diagnosis, which
was based primarily on an assessment of the boy’s credibil-
ity, posed the risk that the jury [would] not make its own
credibility determination, which it is fully capable of doing,
but [would] instead defer to the expert’s implicit conclusion
that the victim’s reports of abuse are credible.”
Id. at 140-41 (citations and internal quotation marks omit-
ted). Ultimately, “the risk that the jury will defer to the
expert’s assessment outweighs whatever probative value the
diagnosis may have.” Id. at 142.
534 State v. Beauvais
This case presents an issue that Southard foreshad-
owed but did not resolve, namely, whether and under what
circumstances a diagnosis of child sexual abuse is admissi-
ble under OEC 403 when physical evidence of abuse is pres-
ent. Defendant argues that a diagnosis of child sexual abuse
that relies in part on physical evidence is inadmissible under
Southard. In defendant’s view, the probative value of such
a diagnosis is slight—even if supported by some physical
evidence—because the jury is equally capable of assessing
the physical evidence, the credibility of the child, and the
other evidence admitted at trial to determine whether the
alleged abuse occurred. Defendant asserts that, even when
a medical expert relies on physical evidence, a sexual abuse
diagnosis determines whether relatively uncomplicated
conduct—an impermissible sexual touching—has occurred,
and a jury can make that determination without expert
assistance. As defendant sees it, where physical evidence
of abuse exists, an expert should be permitted to testify
about whether that evidence is consistent with the alleged
sexual contact, but the expert’s opinion that sexual abuse
occurred does not “turn on an abstruse matter of science,”
see Southard, 347 Or at 135, and, thus, should be left to the
trier of fact.
From those propositions, defendant reasons that
Kyriakos’s diagnosis that KS was sexually abused did little
to assist the jury in this case. In addition, defendant asserts
that Kyriakos relied primarily on her own assessment of KS’s
credibility, rather than the physical evidence that White
had identified. Defendant notes that, although Kyriakos
testified that White’s physical findings were significant,
Kyriakos’s written report did not refer to those physical find-
ings. Defendant also asserts that Kyriakos expressed doubt
about the significance of White’s findings when she stated
that “perhaps” the abrasions could have occurred while KS
was bathing.8 Because the jury was able to draw its own
inferences from the physical evidence, defendant argues, the
8
Kyriakos testified at trial that the abrasions on KS’s vaginal area “per-
haps” may have been self-inflicted while KS was bathing, but Kyriakos did not
think that made sense because the abrasions would have been the result of fairly
vigorous rubbing or rubbing with something sharp such as a fingernail. Kyriakos
stated that a person likely would stop rubbing so vigorously once they began to
feel pain.
Cite as 357 Or 524 (2015) 535
diagnosis was only slightly probative, and the prejudicial
effects that troubled this court in Southard preponderated
to render the diagnosis inadmissible under OEC 403.
In response, the state contends that a medical diag-
nosis of child sexual abuse that relies in part on physical
evidence provides information to a jury that it could not eval-
uate as effectively on its own. According to the state, in rely-
ing on physical evidence to reach such a diagnosis, an expert
draws a causal connection between the allegations of abuse
and the physical evidence. The state asserts that a medical
expert is uniquely qualified to discern and explain the sig-
nificance of such a connection to a lay trier of fact. The state
argues that a diagnosis supported by physical evidence is
helpful because a layperson is not as capable of determining
whether physical findings are the result of sexual abuse, as
opposed to an alternative cause. As to prejudice, the state
notes that, in Southard, this court explained that the danger
of unfair prejudice when a medical diagnosis of child sexual
abuse is not supported by physical evidence is that the jury
will defer to the expert’s assessment of the child’s credibility.
Southard, 347 Or at 140-41. By contrast, when an expert
relies in part on physical evidence, the state asserts that the
persuasive force of the diagnosis does not rest on a credibil-
ity determination, but, rather, on the expert’s explanation
of the significance of the physical findings in combination
with the child’s medical history and the allegations of abuse.
Accordingly, the state reasons, a diagnosis of child sexual
abuse that relies in part on physical evidence is not unfairly
prejudicial.
As those propositions apply here, the state asserts
that White’s findings were an important factor in Kyriakos’s
diagnosis because Kyriakos opined that there was no rea-
sonable explanation other than sexual abuse for the injuries
to KS’s vaginal area. The state further argues that, because
Kyriakos relied on White’s findings and Kyriakos’s diagno-
sis was helpful to explain the significance of those findings
to the jury, the diagnosis was admissible.
In summary, the parties propose opposing bright
line rules: Defendant argues that a child sexual abuse diag-
nosis is never admissible because it has little probative value
536 State v. Beauvais
and is unfairly prejudicial, while the state argues that such
a diagnosis is always admissible if it is supported by some
physical evidence because, in that circumstance, its proba-
tive value is not substantially outweighed by the danger of
unfair prejudice.
As noted, the Court of Appeals determined that the
admissibility of a diagnosis of child sexual abuse when phys-
ical evidence of abuse is present remains subject to a balanc-
ing test under OEC 403. Beauvais, 261 Or App at 843. As
elaborated below, we agree with that conclusion.
OEC 403 codifies the discretionary power of a trial
judge in balancing the probative value of evidence against its
unfairly prejudicial effect. Brown, 297 Or at 442. However,
where the admissibility of scientific evidence is concerned,
this court retains its role to set legal limits that govern the
exercise of trial court authority under OEC 403. Id.; see also
Southard, 347 Or at 140 n 11. In Southard, this court set
a limit on the admissibility of a diagnosis of child sexual
abuse under OEC 403. We explained:
“Our holding today is narrow. The only question on review
is whether a diagnosis of ‘sexual abuse’—i.e., a statement
from an expert that, in the expert’s opinion, the child was
sexually abused—is admissible in the absence of physi-
cal evidence of abuse. We hold that where, as here, that
diagnosis does not tell the jury anything that it could not
have determined on its own, the diagnosis is not admissible
under OEC 403.”
Southard, 347 Or at 142.9 Significantly, this court in
Southard did not hold that the mere existence of support-
ing physical evidence would render a medical diagnosis
of child sexual abuse per se admissible. Nor did the court
hold that such a diagnosis is never admissible, even if sup-
ported by physical evidence. Instead, the court suggested
9
In Lupoli, this court described Southard’s holding as follows:
“[A] statement from an expert that, in the expert’s opinion, a child had been
sexually abused was inadmissible in the absence of physical evidence of
abuse, because it does not tell the jury anything that the jury could not have
determined on its own, and, therefore, the probative value of any such tes-
timony is outweighed by the danger of unfair prejudicial effect under OEC
403.”
Lupoli, 348 Or at 357.
Cite as 357 Or 524 (2015) 537
that the determination of admissibility in a particular case
will depend, among other things, on the extent to which the
diagnosis tells the jury something that it could not deter-
mine as well on its own and the risk that the trier of fact
will improperly defer to what it reasonably could perceive
to be a credibility-based evaluation by the expert. See id.
(holding that “where, as here, [a medical diagnosis of child
sexual abuse] does not tell the jury anything that it could
not have determined on its own, the diagnosis is not admis-
sible under OEC 403”).10
In light of the concerns expressed in Southard,
we conclude that the mere presence of physical evidence
of abuse is not enough to make a diagnosis of child sexual
abuse automatically admissible, when that diagnosis other-
wise rests on what a jury reasonably could perceive to be a
credibility-based evaluation. Rather, the physical evidence
must have more than a speculative or insubstantial connec-
tion to the diagnosis; that is, the evidence must meaning-
fully corroborate the diagnosis. In addition, the expert must
10
In reaching its conclusion, this court in Southard cited several decisions
from other jurisdictions holding that a medical diagnosis on the “ultimate issue
of sexual abuse” is not helpful to the jury and is inadmissible. Southard, 347 Or at
141, 143. Consistently with Southard, each of those decisions involved diagnoses
that were not supported by physical evidence of abuse. See, e.g., United States v.
Charley, 189 F3d 1251, 1257, 1265, 1271 (10th Cir 1999) (repeatedly emphasizing
lack of physical evidence and describing opinions as based “largely” on witness
statements); United States v. Whitted, 11 F3d 782, 785-86 (8th Cir 1993) (expert
was merely reciting the allegation of the alleged victim “in the guise of a medical
opinion”); State v. Iban C., 275 Conn 624, 633, 639, 881 A2d 1005 (2005) (empha-
sizing that diagnosis was based on witness reports, not on physical examination);
Atkins v. State, 243 Ga App 489, 491, 495-96, 533 SE2d 152 (2000) (expert was
unable to opine whether abuse had occurred “based on the current absence of
physical evidence of molestation”); State v. Bantangan, 71 Haw 552, 554, 558,
799 P2d 48 (1990) (noting at outset that “[t]here was no evidence of physical
injury and no third-party witnesses to these incidents,” and ultimately holding
that expert’s “conclusory opinion that abuse did occur and that the child victim’s
report of abuse is truthful and believable is of no assistance to the jury”).
Other courts have held that an expert medical witness may render an opinion
that sexual abuse has in fact occurred if the state establishes physical evidence
consistent with sexual abuse. See, e.g., State v. Hammett, 361 NC 92, 637 SE2d
518 (2002) (“[T]he interlocking factors of the victim’s history combined with the
physical findings constituted a sufficient basis for the expert opinion that sexual
abuse had occurred.”); Warner v. State, 144 P3d 838, 860 (Okla Crim App 2006)
(testimony of physician that child victim had suffered physical and sexual abuse
was admissible, where diagnosis was based upon on his observations of victim’s
injuries, and his testimony assisted jury in understanding cause of injuries found
on victim).
538 State v. Beauvais
significantly rely on the physical evidence in making the
diagnosis, so that the evidence is neither incidental nor tan-
gential to the diagnosis. Finally, the diagnosis must involve
a complex factual determination “that a lay person cannot
make as well as an expert.” See Southard, 347 Or at 140.
As the causal relationship between physical evidence and
a diagnosis becomes more complex, that evidence and the
expert’s interpretation of it increasingly provide jurors with
information that is beyond their common experience. See id.
at 134-35. The issue is not whether the expert’s path of rea-
soning necessarily is beyond the competence of all lay peo-
ple. In some cases, the causal connection between physical
evidence and a diagnosis of child sexual abuse may be suffi-
ciently complex, even though not entirely abstruse, such that
expert testimony will assist the trier of fact. See Middleton,
294 Or at 435 (“[T]he test is whether the expert’s testimony,
if believed, will be of help or assistance to the jury.” (Citation
omitted.)).
When those foundational requirements are satis-
fied, the probative force of the diagnosis is more likely to
derive from the strength of the causal connection between
the physical findings and the diagnosis rather than from the
expert’s assessment of the child’s credibility. We therefore
hold that, when a jury otherwise reasonably could perceive
a medical diagnosis of child sexual abuse to be based on a
credibility determination, the diagnosis nevertheless tells
the jury something that it is not equally capable of determin-
ing on its own if (1) physical evidence meaningfully corrob-
orates the alleged type of abuse; (2) the expert significantly
relies on that physical evidence in making the diagnosis of
sexual abuse; and (3) the causal relationship between the
physical evidence and the diagnosis is sufficiently complex
such that a lay trier of fact cannot assess the connection as
well as an expert.
The trial court could have determined that the first
two requirements were satisfied in this case. With respect to
corroboration, KS stated that defendant touched and rubbed
her vaginal area with his hand. White’s examination report
described redness, swelling, and abrasions of KS’s vaginal
area. Kyriakos testified that she could discern no explana-
tion for KS’s injuries other than the alleged sexual abuse.
Cite as 357 Or 524 (2015) 539
With respect to reliance, Kyriakos testified in the pretrial
hearing that she had reviewed White’s report before she
had evaluated KS and that she had considered White’s find-
ings in reaching her diagnosis. The documented redness,
swelling, and abraded areas were “highly concerning” to
Kyriakos, because they were observed on the same day as
the incident and, again, she could discern no explanation for
them other than sexual abuse.11
The trial court also could have determined that the
third requirement was satisfied in this case. Jurors could
appreciate that there were various possible causes of the
redness, swelling, and abrasions found on KS’s vaginal
area, but they would not necessarily know the likely cause
of that physical evidence. Kyriakos’s testimony about the
significance of the physical evidence involved the applica-
tion of specialized medical knowledge to diagnostic facts;
it was not based on criteria that laypeople are expected to
use in their ordinary experience, but, rather, on a medical
understanding of a child’s physiology. Thus, the causal con-
nection between the physical findings on which Kyriakos
relied and her diagnosis of child sexual abuse was suffi-
ciently complex that the trial court could have determined
that that expert testimony would assist the jury in assess-
ing that connection.
In sum, the trial court could have concluded that the
diagnosis of sexual abuse told the trier of fact something that
it could not determine as well on its own. Further, because
the diagnosis was based in meaningful part on corroborative
physical findings, the trial court could have concluded that
the danger of unfair prejudice described in Southard—that
the jury improperly would defer to the expert’s assessment
of the complaining witness’s credibility—was correspond-
ingly reduced. On balance, therefore, we conclude that the
trial court did not abuse its discretion in determining that
the probative value of Kyriakos’s diagnosis of sexual abuse
was not substantially outweighed by the danger of unfair
11
We reject defendant’s assertion that Kyriakos did not rely on White’s phys-
ical findings as a matter of law because she said that “perhaps” the injuries could
have been the result of KS bathing. Kyriakos made it clear that she did not think
that was a possibility.
540 State v. Beauvais
prejudice under OEC 403.12 Because the diagnosis also was
relevant and valid scientific evidence, it follows that the trial
court did not err in admitting it.
C. Admissibility of Evaluative Criteria Underlying the
Diagnosis of Sexual Abuse.
In his second assignment of error, defendant asserts
that, even if Kyriakos’s diagnosis that KS had been sexu-
ally abused was admissible, the trial court erred in reject-
ing his pretrial challenge to the KIDS Center evidence that
explained the bases for that diagnosis because that evidence
impermissibly commented on the credibility of KS. Before
the trial court, defendant based his argument on the long-
standing principle that a witness may not give an opinion
on the truthfulness or credibility of another witness. See,
e.g., Middleton, 294 Or at 438; State v. Milbradt, 305 Or 621,
629, 756 P2d 620 (1988) (stating that assessment of cred-
ibility of witness is for trier of fact). At the pretrial hear-
ing, defendant argued that testimony regarding the evalu-
ative criteria used by Kyriakos and described in the KIDS
Center report impermissibly commented on the credibility
of KS because those criteria were “simply ways to determine
whether the child is being deceptive or has been coached
or has been contaminated.” In defendant’s view, the KIDS
Center experts would be “telling the jury, in essence” that,
“based on [the] use of the criteria * * * [KS] is believable.”13
The only specific evidence that defendant challenged on
that ground was the part of the DVD interview in which
Glesne asked KS if anyone had told her what to say, and
KS answered, “No.” Defendant did not object—either at the
12
We need not determine whether, on the record before us, the trial court
would have erred if it had excluded the diagnosis under OEC 403. We reserve
for another day the question whether, depending on a trial court’s findings of
case-specific preliminary issues of fact in a close case, this court would defer to
the court’s decision either to admit or exclude a diagnosis of child sexual abuse.
See State v. O’Key, 321 Or 285, 320 n 45, 899 P2d 663 (1995) (expressing con-
cern about lack of uniformity in trial court decisions concerning the admissi-
bility of scientific evidence, particularly where “the preliminary facts are not
case-specific”).
13
On review, the state asserts that defendant made a generalized pretrial
objection to the KIDS Center report that is unavailing because much of the report
was “clearly admissible.” Because we understand defendant’s objection to the
report to have focused on the evaluative criteria that Kyriakos used in this case,
we deem the objection to be sufficiently specific to address that issue.
Cite as 357 Or 524 (2015) 541
pretrial hearing or at trial—to any other specific statements
made by the KIDS Center experts in their testimony, in the
KIDS Center report, or in the DVD of the interview of KS.
Defendant has further refined his argument on
appeal based on this court’s decisions in Southard and
Lupoli. In Southard, this court was careful to point out that
its decision “[did] not resolve[ ] whether any subsidiary prin-
ciples that inform [the child sexual abuse] diagnosis are
themselves admissible.” Southard, 347 Or at 142. In Lupoli,
the court took on that question. The expert witnesses in
Lupoli explained that, in making a diagnosis of sexual
abuse in the absence of physical evidence, they had eval-
uated the manner in which the child victim had reported
the incident and whether the victim’s disclosures had been
“clear,” “appropriate,” “detail[ed],” “consistent,” “developmen-
tally appropriate,” made in such a way that “you think that
a kid is telling it like it is,” and had not reflected risk factors
such as “inappropriate sexual knowledge.” Lupoli, 348 Or at
353-56. The defendant did not object to the diagnosis of
sexual abuse itself. He did, however, object to testimony
explaining the bases for the diagnosis on the ground that it
amounted to improper vouching by the experts for the vic-
tim’s credibility. Id. at 356.
Citing Middleton, this court agreed with the defen-
dant. The court determined that, in the absence of physical
evidence, such testimony necessarily is based on an assess-
ment of the child’s credibility. Because the testimony could
not be meaningfully separated from that context, the court
held that it was inadmissible. Lupoli at 362. The court also
explained, however, that, “ordinarily,” an expert witness
may explain the basis for the expert’s diagnosis, as long
as the diagnosis itself is admissible. Id. at 361. The court
further observed that the parts of the challenged expert
testimony in Lupoli “might be admissible in many circum-
stances, and perhaps even in this case.” Id. As examples, the
court identified the expert’s assessment of: (1) whether the
particular victim’s statements are developmentally appro-
priate; (2) the particular victim’s demeanor and changes in
demeanor; (3) the particular victim’s disclosure as sponta-
neous and including descriptive details; and (4) the general
circumstances that point to a child’s suggestibility or the
542 State v. Beauvais
possibility that the child has been coached. Id. Such assess-
ments, the court explained, are “the kind of expert opinion
that can assist a jury” and are not impermissible vouching
on their own. Id.
On review, defendant focuses his argument on the
trial testimony and report of Kyriakos, as well as the trial
testimony of Glesne and Zancanella relating to certain attri-
butes in a child’s account that they are taught to look for,
including spontaneous recall, consistency in core details,
the use of sensory details, and the use of the child’s body or
a drawing in describing what happened. However, as noted,
because defendant’s only pertinent objections in this case
were made in his motion in limine and related argument at
the pretrial hearing, and defendant has assigned error to
only the denial of that pretrial motion, our review is confined
to the pretrial record. See Pitt, 352 Or at 574-75 (sufficiently
developed pretrial objection is sufficient to preserve error
in absence of an objection to trial testimony, but court eval-
uates issue based on record made before trial court when
it issued order); see also State v. Perry, 347 Or 110, 116-17,
218 P3d 95 (2009) (noting focused inquiry on appeal when
defendant did not object to discrete pieces of evidence during
trial or assign error to any ruling occurring after jury was
empanelled, but instead rested argument on trial court’s
ruling following pretrial hearing). Accordingly, we exam-
ine defendant’s argument that the evaluative criteria that
the KIDS Center uses generally and that Kyriakos used in
making her diagnosis in this case amounted to impermis-
sible comments on KS’s credibility through the lens of his
pretrial objections to evidence pertaining to those criteria.
As noted above, Kyriakos reached a diagnosis that
was based on physical evidence and other evaluative crite-
ria, but she did not directly testify that KS was credible.
Instead, in her report and at the pretrial hearing, Kyriakos
testified as to the criteria that bear on an evaluation of a
child for sexual abuse—consistency of core details; informa-
tion given in more than one media form; multiple, contex-
tual, and in-depth details; spontaneity; and sensory details.
In applying those criteria to KS’s circumstances, Kyriakos
testified that KS had been spontaneous and consistent in
her disclosures, that she had used words, her body, and a
Cite as 357 Or 524 (2015) 543
drawing to describe the abuse, and that she had been able to
communicate sensory details. The issue is whether that opin-
ion evidence impermissibly commented on KS’s credibility.
A direct comment on the credibility of a witness or a
statement that is “tantamount” to stating that another wit-
ness is truthful is not admissible, even if it is offered as part
of a discussion of an admissible medical diagnosis. See, e.g.,
State v. Keller, 315 Or 273, 285, 844 P2d 195 (1993) (expert
testimony that there was no indication that witness had
been “coached” was impermissible comment on credibility);
Milbradt, 305 Or at 629-30 (an expert’s opinion that a wit-
ness is not deceptive, could not lie without getting tripped
up, and would not betray a friend is tantamount to express-
ing the opinion that the witness is telling the truth, and is
not permissible). Because none of the KIDS Center evidence
offered at the pretrial hearing involved a direct opinion that
KS was truthful, the precise issue before us is whether any
of that evidence nevertheless was “tantamount” to vouching
for her credibility.
This court has not explained what is meant by a
statement that is “tantamount” to stating that another wit-
ness is truthful, as the court identified in Keller. However,
the statements that this court deemed improper in Milbradt
and Keller provide helpful illustrations. Even though the
experts in those cases did not expressly opine as to the
truthfulness of the complaining witnesses, the challenged
statements—that the witnesses had not been “coached” and
were not “deceptive”—are commonly understood ways of sig-
naling a declarant’s belief that a witness is telling the truth.
To be sure, stating that a person has not been coached or is
not deceptive is tantamount to, the equivalent of, and the
same as stating that the person is truthful.
Middleton furnishes a contrasting example. In that
case, the complaining witness, a 14-year old girl, initially
reported that her father had raped her. Two months later,
she claimed that she had lied about the rape so that she
could move out of her parents’ house. At trial, however, she
testified that the rape did occur as originally reported. The
trial court admitted testimony from two social workers
who had interviewed the child and who testified as to “the
544 State v. Beauvais
behavior of the type of children who have reported a claim of
rape by a family member and whether the [complaining wit-
ness’s] behavior was consistent with what [was] described as
typical behavior.” Middleton, 294 Or at 433. That testimony
included statements that the expert “found [the victim’s]
behavior very much in keeping with children who have com-
plained of sex molestation at home,” id. at 432 n 5, and that
the victim’s behavior of retracting a report was “a very com-
mon kind of thing to happen * * * [and] very typical for a
teenage sex abuse victim,” id. at 433-34 n 6.
The significance of the recantation as an indice of
the complaining witness’s credibility was hotly contested in
Middleton. The challenged testimony in that case was rele-
vant to show that what appeared to be unusual behavior for
a victim of sexual abuse was not, in fact, all that unusual.
That is, the testimony explained that the victim’s recan-
tation was not uncommon. The fact that the jury might
further infer from that testimony that the particular com-
plainant in that case had been truthful about the abuse did
not render the testimony inadmissible. Id. at 435. As the
court observed:
“It is true that if the jurors believed the experts’ testimony,
they would be more likely to believe the victim’s account.
Neither of the experts directly expressed an opinion on
the truth of the victim’s testimony. Much expert testimony
will tend to show that another witness either is or is not
telling the truth. This, by itself, will not render evidence
inadmissible.”
Id. (citation omitted). In Middleton, the suggestion in the
expert’s statement that the complaining witness was telling
the truth was more remote than the inferences in Milbradt
and Keller; when the expert in Middleton informed the jury
that victim recantation is not unusual, the primary effect
of the statement was to show that recantation does not nec-
essarily mean that a complainant is untruthful, which is
not tantamount to, the equivalent of, or the same as stating
that the particular complainant in that case was telling the
truth. See also Perry, 347 Or at 118-19, 126 (holding evidence
that some children who have been abused may delay disclos-
ing abuse admissible, when presented to disprove claim that
delay in reporting demonstrates that no abuse occurred).
Cite as 357 Or 524 (2015) 545
Admittedly, it is not always easy to draw the line
between an inadmissible statement that is tantamount to
a direct comment on the credibility of a witness and an
admissible statement that is relevant for a different rea-
son but that tends to show that a witness is telling the
truth. However, that difference is not all that distinguishes
Middleton from Milbradt and Keller. As important was the
fact that this court deemed the recantation in Middleton to
be sufficiently beyond the ordinary experience of a lay finder
of fact such that expert testimony would “explain[ ] * * *
superficially bizarre behavior by identifying its emotional
antecedents.” Middleton, 294 Or at 436; see also id. at 437
(testimony was admissible because it would help jury “make
a more informed decision in evaluating the credibility of a
testifying child”). No similar assistance was provided either
in Milbradt or Keller, where this court implicitly decided
that the credibility determination was not sufficiently com-
plex to conclude that expert testimony would assist, rather
than impermissibly influence, the jury in making its own
assessment.
In short, our prior decisions stand for the proposi-
tion that, to be admissible, expert testimony must assist—
not undermine—the jury’s own assessment of witness cred-
ibility. Expert testimony that provides jurors with useful
information in making their own credibility assessment
ordinarily is admissible, as long as it is not either a direct
comment on the credibility of a witness or tantamount to a
direct comment on the credibility of a witness.14 Consistently
14
We reiterate that, even where a credibility determination involves complex
factual components, there are other legal limits on the admissibility of expert tes-
timony bearing on that determination. In State v. Hansen, 304 Or 169, 176, 743
P2d 157 (1987), also a child sex-abuse case, this court held that expert testimony
offered to explain a child’s denial of the alleged abuse could not include testimony
regarding the “grooming” techniques used by child abusers. The court explained
that testimony pertaining to the typical responses of sexually abused children,
“arguably is admissible * * * because it might assist the trier of fact to under-
stand the student’s initial denial. But the specific techniques used by some
child abusers ‘to get close to the victim,’ which may result in the child’s emo-
tional dependence on the abuser, are irrelevant to the effect the dependence
has on the child’s willingness to implicate the abuser. It is the emotional
dependence, not the specific acts that produce it, that helps to explain the
child’s behavior.”
Id. at 175-76. In State v. Stevens, 328 Or 116, 970 P2d 215 (1998), the court elab-
orated on its reasoning in Hansen:
546 State v. Beauvais
with that principle, this court stated in Lupoli that an expert
witness ordinarily can describe the subsidiary principles—
that is, the evaluative criteria—underlying an admissi-
ble diagnosis of child sexual abuse. Lupoli, 348 Or at 361.
Those criteria include the general characteristics that the
expert looks for in examining a child for sexual abuse and
necessarily include characteristics that permit the expert to
assess the validity of the allegation. See id. at 362.
Because this court in Lupoli concluded that, in the
absence of a diagnosis supported by physical evidence, the
challenged evidence in that case constituted impermissi-
ble vouching, the court’s discussion of the admissibility of
evidence pertaining to the evaluative criteria underlying
an admissible diagnosis of sexual abuse was not, strictly
speaking, necessary to its decision. However, as the Court
of Appeals noted, Lupoli “strongly suggests” that, when a
diagnosis of sexual abuse is admissible because it is ade-
quately supported by physical evidence, “expert opinion is
not ‘ultimately and only’ based on credibility, [Lupoli, 348
Or at 362], and those types of assessments that are offered
in support of a diagnosis and that do not constitute [imper-
missible] ‘vouching’ are ‘ordinarily’ admissible—that is,
they are admissible” if the underlying diagnosis of sexual
abuse is itself admissible. Beauvais, 261 Or App at 847. We
now endorse that “strong” suggestion, and so hold. When
a medical diagnosis of child sexual abuse is adequately
supported by physical evidence of abuse and is otherwise
admissible, short of a direct comment or a statement that is
tantamount to stating that the child is telling the truth, the
expert’s testimony concerning the diagnosis ordinarily can
include a description of the evaluative criteria underlying
the diagnosis and the characteristics of the child that led to
the diagnosis. See Lupoli, 348 Or at 362.
“Although Hansen indicates that testimony that describes the process of vic-
timization may be inadmissible in some circumstances, either because it is
irrelevant or unduly prejudicial, that case does not hold that such testimony
is, in all circumstances, inadmissible. Hansen involved the testimony of an
expert who purported to explain the seemingly abnormal responses of a cer-
tain class of victims to a particular type of criminal behavior. In general,
such experts can and must do so without providing details of the victimiza-
tion process: Those details are irrelevant to the expert’s subject matter and,
as such, rarely will pass the balancing test of OEC 403.”
Stevens, 328 Or at 127.
Cite as 357 Or 524 (2015) 547
As applicable here, an expert’s description of a wit-
ness’s “spontaneous and descriptive details in her state-
ments” is permissible. Id. Similarly, generally speaking,
testimony that a witness’s statements were consistent with
earlier statements that the witness made does not impermis-
sibly vouch for the witness’s credibility. State v. Viranond,
346 Or 451, 461, 212 P3d 1252 (2009). In combination,
Lupoli and Viranond support the admission in this case of
Kyriakos’s testimony about the following evaluative crite-
ria: consistency of core details; information given in more
than one media form; multiple, contextual, and in-depth
details; and spontaneity. Only one of the evaluative criteria
that defendant challenges has not been at least implicitly
approved in this court’s previous decisions, namely, evidence
of an expert’s reliance on a witness’s ability to describe sen-
sory details. We also conclude, however, that Kyriakos’s dis-
cussion of that criterion did not cross the line in this case.
Unlike the impermissible vouching in Milbradt and Keller,
Kyriakos’s testimony about the sensory details contained in
KS’s statements was not a direct comment on KS’s credi-
bility, nor was it tantamount to stating that KS was tell-
ing the truth. Instead, it showed that KS previously had
experienced a stinging sensation and therefore knew how
to describe it. That information was helpful to the jury in
making its own assessment of KS’s credibility.
In sum, Kyriakos’s testimony about the evaluative
criteria that she used in reaching her admissible diagnosis
of sexual abuse did not constitute impermissible vouching,
but, rather, assisted the jury in making their own assess-
ment of KS’s complaint. Accordingly, the trial court did not
err in rejecting defendant’s pretrial challenge to the por-
tions of Kyriakos’s testimony and the KIDS Center report
in which she discussed those evaluative criteria and their
application to KS’s evaluation.
With regard to the sole objection that defendant
made to specific evidence at the pretrial hearing, we con-
clude that asking KS whether anyone told her what to say
during her interview at the KIDS Center, followed by her
negative answer to that question, was not an impermissi-
ble comment on KS’s credibility. Although an expert’s state-
ment that “[t]here was no evidence of leading or coaching”
548 State v. Beauvais
is impermissible vouching, because it “amounts to testimony
that the child was credible,” Keller, 315 Or at 285, that is
not what happened here. When the interviewer asked KS
whether anyone had told her what to say during her inter-
view at the KIDS Center, the interviewer was attempting to
determine whether KS had been coached. The interviewer
did not state—nor did she imply—whether she believed
that KS had been coached or whether she believed that KS
was telling the truth. Ordinarily, general descriptions of
“the circumstances that can point to a child’s suggestibility
or the possibility that the child has been coached” are the
types of expert opinions that would assist the jury and are
not impermissible vouching. Lupoli, 348 Or at 362. Unlike
the expert’s statement in Keller, the exchange between the
interviewer and KS was not a comment on KS’s credibil-
ity; rather, it presented a basis for the jury to determine for
itself whether KS had been coached. Accordingly, the trial
court did not err in admitting that evidence.
III. CONCLUSION
To reiterate, there is sufficient physical evidence
of abuse so that a medical diagnosis of sexual abuse ordi-
narily is admissible under OEC 403 if (1) physical evidence
meaningfully corroborates the alleged type of abuse; (2) the
expert significantly relies on that physical evidence in mak-
ing the diagnosis of sexual abuse; and (3) the causal rela-
tionship between the physical evidence and the diagnosis
is sufficiently complex such that a lay trier of fact cannot
assess the connection as well as an expert. When those fac-
tors are present, the diagnosis tells the jury something that
it could not determine as well on its own; thus, the probative
value of the diagnosis ordinarily will not be substantially
outweighed by the danger of unfair prejudice. In this case,
because those factors were present, the trial court did not
err in admitting the diagnosis.
Insofar as defendant’s second assignment of error is
concerned, the trial court did not err in denying defendant’s
motion in limine to generally exclude the KIDS Center evi-
dence that explained the evaluative criteria for the diagno-
sis of sexual abuse on the ground that the evidence imper-
missibly commented on the credibility of the complaining
Cite as 357 Or 524 (2015) 549
witness. Nor did the court err in rejecting defendant’s sole
specific pretrial challenge on that ground to a part of that
evidence.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.