[DV_listserv] Expert Witness Case

[Domestic Violence issues]

This is a case in which the investigating detective was allowed to offer expert testimony on why a child victim might not disclose right away. This testimony was allowed to rebut the inference by the defense that the child did not disclose right away because the child was lying.  The same principles could be applied in offering expert testimony through an officer in a DV case about why a victim, generally, might engage in 'counterintuitive' behavior like returning to an abusive relationship, minimizing the abuse, etc. You're going to have to walk a fine line in offering testimony that doesn't trigger a Brown/O'Key analysis but it's still a great case for us!


>From DOJ's Appellate Division Legal Update:

EVIDENCE-EXPERT TESTIMONY: Trial court did not err by allowing detective to
testify as an expert about delayed reporting, based on the detective's training and
experience.
State v. Althof, 273 Or App 342, __ P3d __ (2015) (Curry) (AAG Doug Petrina).
Defendant was convicted of five counts of first-degree sexual abuse and one count of
second-degree unlawful penetration. On appeal, he challenged: (1) the trial court's
admission of uncharged misconduct evidence without adhering to the procedures
established by State v. Leistiko, 352 Or 172 (2012), and State v. Pitt, 352 Or 566 (2012);
(2) the trial court's determination that the investigating detective was qualified under
OEC 702 to provide expert testimony about delayed reporting; and (3) the trial court's
refusal to instruct the jury that it was required to reach unanimous verdicts on the
charges, and its subsequent acceptance of non-unanimous verdicts.

Held: Affirmed (Lagesen, P.J.). [1] Defendant's arguments related to the
admission of uncharged misconduct evidence were not preserved and do not qualify as
plain error. [2] The detective was qualified to prove his testimony about delayed
reporting by virtue of his training and experience. [3] Defendant's challenge to the nonunanimous
verdicts is foreclosed by Apodaca v. Oregon, 406 US 404 (1972).
http://www.publications.ojd.state.or.us/docs/A153292.pdf

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