ORS 40.410
Rule 702. Testimony by experts


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. [1981 c.892 §58]

Source: Section 40.410 — Rule 702. Testimony by experts, https://www.­oregonlegislature.­gov/bills_laws/ors/ors040.­html.

Notes of Decisions

Guidelines for determining relevance or probative value of proffered scientific evidence are: 1) general acceptance in field; 2) expert’s qualifications and stature; 3) use made; 4) potential for error; 5) existence of specialized literature; 6) novelty; and 7) reliance on subjective interpretation. State v. Brown, 297 Or 404, 687 P2d 751 (1984)

Expert testimony that merely tells jury what legal conclusion to reach is not admissible under this rule. French v. Barrett, 84 Or App 52, 733 P2d 89 (1987)

Expert testimony concerning standards of good faith dealing among joint venturers is admissible under this section if it will assist jury in determining whether defendants’ actions fulfilled their duty of “loyalty and fair dealing.” Commerce Mortgage Co. v. Industrial Park Co., 101 Or App 345, 790 P2d 16 (1990), as modified by 102 Or App 284, 793 P2d 894 (1990), Sup Ct review denied

Error in admitting testimony of police officer, not qualified as expert, regarding speed of vehicles involved in collision, was harmless in light of other evidence. Hays v. Huard, 108 Or App 289, 814 P2d 559 (1991)

Police officer, qualified as expert, could testify based on reconstruction as to speed of vehicle involved in collision although he was not eyewitness to accident. DeFries v. Post, 108 Or App 298, 815 P2d 224 (1991)

Fact that psychologist lacked license affects weight given opinion rather than admissibility. Aetna Casualty v. Robinson, 115 Or App 154, 836 P2d 1362 (1992)

Medical doctor was not precluded from testifying that child was sexually abused as medical diagnosis simply because jury might infer from that testimony that another witness was telling the truth. State v. Wilson, 121 Or App 460, 855 P2d 657 (1993), Sup Ct review denied

Forensic DNA testing has sufficient scientific reliability to be helpful to trier of fact in matters of identification. State v. Futch, 123 Or App 176, 860 P2d 264 (1993), aff’d 324 Or 297, 924 P2d 832 (1996)

Where expert did not comment directly on credibility of defendants, testimony of expert that changing explanation for child’s injuries was typical child abuser behavior was permissible. State v. Butterfield, 128 Or App 1, 874 P2d 1339 (1994), Sup Ct review denied

Evidence that has potential to influence trier of fact as scientific evidence must be reviewed by court for scientific validity and pertinence. State v. O’Key, 321 Or 285, 899 P2d 663 (1995)

Validity and pertinence of scientific evidence must be evaluated by court in light of: 1) whether theory or technique can be and has been tested; 2) whether theory or technique has been subject to peer review and publication; 3) known or potential rate of error; and 4) degree of acceptance in relevant scientific communities. State v. O’Key, 321 Or 285, 899 P2d 663 (1995)

Expert witness on medical subject need not be person licensed to practice medicine. Cunningham v. Montgomery, 143 Or App 171, 921 P2d 1355 (1996), Sup Ct review denied

Lack of real estate appraiser license does not prevent person having sufficient knowledge, skill or experience from presenting testimony giving comparative market analysis. Yager and Yager, 155 Or App 407, 963 P2d 137 (1998), Sup Ct review denied

Testimony based on personal observation or specialized knowledge of professional and offered for purpose unrelated to establishing conformance with scientific principle is not scientific evidence requiring establishment of foundation. State v. Stafford, 157 Or App 445, 972 P2d 47 (1998), Sup Ct review denied

Scientific evidence forming basis for expert opinion may consist of physician case reports employing scientific methodology. Jennings v. Baxter Healthcare Corp., 331 Or 285, 14 P3d 596 (2000)

Physician’s diagnosis that patient is suffering from particular condition is subject to foundational requirements for scientific evidence. State v. Sanchez-Cruz, 177 Or App 332, 33 P3d 1037 (2001), Sup Ct review denied

Where qualified experts disagree concerning validity of medical diagnosis or other scientific evidence, court should rely upon trial process and jury evaluation to determine truth rather than excluding scientific evidence pretrial. Kennedy v. Eden Advanced Pest Technologies, 222 Or App 431, 193 P3d 1030 (2008)

Where other legitimate grounds exist for act to be considered during differential diagnosis process as possible cause of injury, lack of scientifically accepted mechanism of causation or other verifiable correlation does not require excluding act from consideration. Marcum v. Adventist Health System/West, 345 Or 237, 193 P3d 1 (2008)

Nurse’s experience working with patients suffering from traumatic brain injury qualified nurse as expert for purposes of testifying to injury’s impact on defendant’s field sobriety test despite nurse’s lack of specialized education or training. State v. Woodbury, 289 Or App 109, 408 P3d 267 (2017)

Witness’s experience as professor of finance, educational background and authorship of numerous articles on valuation of corporate entities and property qualified witness as expert for purposes of testifying about valuation of income-producing properties, despite witness’s lack of licensure as appraiser and experience in business valuation as opposed to property valuation. Level 3 Communications, LLC v. Dept. of Rev., 23 OTR 87 (2018)

Police officer’s testimony concerning general concept of “grooming” was scientific in nature and therefore required scientific foundation, when officer was not involved in investigation of case and testimony was based on training and experience and not on particular facts of case. State v. Etzel, 310 Or App 761, 488 P3d 783 (2021)

Where abusive head trauma diagnosis met minimum requirements of scientific validity under to be helpful to jury and was based on physical evidence and medical explanation of significance of victim’s injuries, diagnosis was admissible under OEC 403. State v. Allen, 311 Or App 271, 489 P3d 555 (2021)

Law Review Citations

71 OLR 93, 349 (1992)

40.010
Rule 100. Short title
40.015
Rule 101. Applicability of Oregon Evidence Code
40.020
Rule 102. Purpose and construction
40.025
Rule 103. Rulings on evidence
40.030
Rule 104. Preliminary questions
40.035
Rule 105. Limited admissibility
40.040
Rule 106. When part of transaction proved, whole admissible
40.060
Rule 201(a). Scope
40.065
Rule 201(b). Kinds of facts
40.070
Rules 201(c) and 201(d). When mandatory or discretionary
40.075
Rule 201(e). Opportunity to be heard
40.080
Rule 201(f). Time of taking notice
40.085
Rule 201(g). Instructing the jury
40.090
Rule 202. Law that is judicially noticed
40.105
Rule 305. Allocation of the burden of persuasion
40.110
Rule 306. Instructions on the burden of persuasion
40.115
Rule 307. Allocation of the burden of producing evidence
40.120
Rule 308. Presumptions in civil proceedings
40.125
Rule 309. Presumptions in criminal proceedings
40.130
Rule 310. Conflicting presumptions
40.135
Rule 311. Presumptions
40.150
Rule 401. Definition of “relevant evidence.”
40.155
Rule 402. Relevant evidence generally admissible
40.160
Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion or undue delay
40.170
Rule 404. Character evidence
40.172
Rule 404-1. Pattern, practice or history of abuse
40.175
Rule 405. Methods of proving character
40.180
Rule 406. Habit
40.185
Rule 407. Subsequent remedial measures
40.190
Rule 408. Compromise and offers to compromise
40.195
Rule 409. Payment of medical and similar expenses
40.200
Rule 410. Withdrawn plea or statement not admissible
40.205
Rule 411. Liability insurance
40.210
Rule 412. Sex offense cases
40.211
Rule 412-1. Evidence not admissible in civil proceeding involving sexual misconduct
40.215
Rule 413. Measures and assessments intended to minimize impact of or plan for natural disaster
40.225
Rule 503. Lawyer-client privilege
40.227
Rule 503-1. Right of client to communicate with lawyer
40.230
Rule 504. Psychotherapist-patient privilege
40.235
Rule 504-1. Physician-patient privilege
40.240
Rule 504-2. Nurse-patient privilege
40.245
Rule 504-3. School employee-student privilege
40.250
Rule 504-4. Regulated social worker-client privilege
40.252
Rule 504-5. Communications revealing intent to commit certain crimes
40.255
Rule 505. Spousal privilege
40.260
Rule 506. Member of clergy-penitent privilege
40.262
Rule 507. Counselor-client privilege
40.264
Rule 507-1. Certified advocate-victim privilege
40.265
Rule 508a. Stenographer-employer privilege
40.270
Rule 509. Public officer privilege
40.272
Rule 509-1. Sign language interpreter privilege
40.273
Rule 509-2. Non-English-speaking person-interpreter privilege
40.274
Rule 509-3. Legislative branch offsite process counselor privilege
40.275
Rule 510. Identity of informer
40.280
Rule 511. Waiver of privilege by voluntary disclosure
40.285
Rule 512. Privileged matter disclosed under compulsion or without opportunity to claim privilege
40.290
Rule 513. Comment upon or inference from claim of privilege
40.295
Rule 514. Effect on existing privileges
40.310
Rule 601. General rule of competency
40.315
Rule 602. Lack of personal knowledge
40.320
Rule 603. Oath or affirmation
40.325
Rule 604. Interpreters
40.330
Rule 605. Competency of judge as witness
40.335
Rule 606. Competency of juror as witness
40.345
Rule 607. Who may impeach
40.350
Rule 608. Evidence of character and conduct of witness
40.355
Rule 609. Impeachment by evidence of conviction of crime
40.360
Rule 609-1. Impeachment for bias or interest
40.365
Rule 610. Religious beliefs or opinions
40.370
Rule 611. Mode and order of interrogation and presentation
40.375
Rule 612. Writing used to refresh memory
40.380
Rule 613. Prior statements of witnesses
40.385
Rule 615. Exclusion of witnesses
40.405
Rule 701. Opinion testimony by lay witnesses
40.410
Rule 702. Testimony by experts
40.415
Rule 703. Bases of opinion testimony by experts
40.420
Rule 704. Opinion on ultimate issue
40.425
Rule 705. Disclosure of fact or data underlying expert opinion
40.430
Rule 706. Impeachment of expert witness by learned treatise
40.450
Rule 801. Definitions for ORS 40.450 to 40.475
40.455
Rule 802. Hearsay rule
40.460
Rule 803. Hearsay exceptions
40.465
Rule 804. Hearsay exceptions when the declarant is unavailable
40.470
Rule 805. Hearsay within hearsay
40.475
Rule 806. Attacking and supporting credibility of declarant
40.505
Rule 901. Requirement of authentication or identification
40.510
Rule 902. Self-authentication
40.515
Rule 903. Subscribing witness’ testimony unnecessary
40.550
Rule 1001. Definitions for ORS 40.550 to 40.585
40.555
Rule 1002. Requirement of original
40.560
Rule 1003. Admissibility of duplicates
40.562
Rule 1003-1. Admissibility of reproduction
40.565
Rule 1004. Admissibility of other evidence of contents
40.570
Rule 1005. Public records
40.575
Rule 1006. Summaries
40.580
Rule 1007. Testimony or written admission of party
40.585
Rule 1008. Functions of court and jury
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