ORS 40.410¹
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]

(Rule 702)

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)

Law Review Cita­tions

71 OLR 93, 349 (1992)

Chapter 40


Notes of Decisions

General rule is that polygraph evidence is inadmissible in pro­ceed­ing governed by Oregon Evidence Code. State v. Brown, 297 Or 404, 687 P2d 751 (1984)

Party could introduce results of polygraph test taken by spouse for purpose of showing that response of party upon learning polygraph results was reasonable. Fromdahl and Fromdahl, 314 Or 496, 840 P2d 683 (1992)

Where state law completely precludes reliable, ma­te­ri­ally exculpatory evidence, exclusion of that evidence violates Due Process Clauses of United States Constitu­tion. State v. Cazares-Mendez, 233 Or App 310, 227 P3d 172 (2010), aff’d State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491, 256 P3d 104 (2011)

Oregon Evidence Code articulates min­i­mum standards of reliability that apply to many types of evidence for admissibility, including eyewitness identifica­tion evidence, and parties must employ code to address admissibility of eyewitness testimony. State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012)

Law Review Cita­tions

59 OLR 43 (1980); 19 WLR 343 (1983)

Chapter 40

Evidence Code

Annota­tions are listed under the heading “Under former similar statute” if they predate the adop­tion of the Evidence Code, which went into effect January 1, 1982.

1 Legislative Counsel Committee, CHAPTER 40—Evidence Code, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors040.­html (2019) (last ac­cessed May 16, 2020).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 40, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano040.­html (2019) (last ac­cessed May 16, 2020).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information