584 November 17, 2016 No. 72

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

LANE EDWARD JESSE,

Respondent on Review.

(CC C110695CR; CA A153759; SC S063856)

En Banc

On review from the Court of Appeals.*

Argued and submitted September 22, 2016.

Peenesh Shah, Assistant Attorney General, Salem, 

argued the cause and filed the brief for petitioner on review. 

Also on the brief were Ellen F. Rosenblum, Attorney General, 

and Benjamin Gutman, Solicitor General.

Neil F. Byl, Deputy Public Defender, Salem, argued the 

cause and filed the brief for respondent on review. Also on 

the brief was Ernest G. Lannet, Chief Defender, Office of 

Public Defense Services.

BREWER, J.

The decision of the Court of Appeals is reversed. The 

judgment of the circuit court is affirmed.

Case Summary: Defendant offered expert testimony of his psychological profile and diagnosis in support of his theory that statements that he made were not 

actual confessions of guilt. The trial court excluded the testimony on the ground 

that it was not helpful to the jury under OEC 702. The Court of Appeals reversed. 

Held: The trial court did not err in excluding the expert testimony because the 

testimony did not demonstrate the inference that defendant wanted the jury 

to draw—that people with adjustment disorders are distressed, have poor coping skills, obsessively ruminate, and may make statements that are not actual 

admissions of guilt.

The decision of the Court of Appeals is reversed. The judgment of the circuit 

court is affirmed.

______________

* Appeal from Washington County Circuit Court, Rick Knapp, Judge. 275 Or 

App 1, 362 P3d 1187 (2015).
Cite as 360 Or 584 (2016) 585

BREWER, J.

The issue on review following defendant’s conviction 

for first-degree sexual abuse is whether the trial court erred 

in excluding from evidence at trial, on the ground that it 

was not helpful to the jury, expert testimony that defendant 

proffered in support of his theory that certain statements 

that he had made were not, in fact, actual confessions of 

guilt. OEC 702.1

 Because we conclude that the trial court 

did not err in excluding the proffered testimony, we affirm 

defendant’s conviction.

I. FACTS AND PROCEDURAL HISTORY

Defendant was indicted in April 2011 on one count 

of first-degree sexual abuse, based on an allegation that 

he knowingly subjected his daughter M to sexual contact. 

Because defendant argues that the excluded expert testimony would have helped explain his own statements that 

the state characterized as confessions of guilt, we describe 

those statements in detail.

A. Statements that the State Claimed Were Confessions to the 

Charged Offense

1. Defendant’s initial disclosure to S

Defendant and his wife, S, were married for eight 

years and have two children, M and L. M was four years old 

in November 2009, when S returned home from work one 

morning and found defendant extremely upset. As S later 

described the discussion, defendant told her that she would 

never forgive him, handed over his wedding ring, and then 

told her that he had touched M over her diaper. S testified 

that defendant also said that he had been thinking about 

touching the children for some time and that he was worried 

about “turning into his [own] family.” According to S, defendant said that “he belonged in prison and to call the police 

right now.” S did not call the police, because defendant told 

1 OEC 702 provides that,

“[i]f 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.”
586 State v. Jesse

her that M had not awakened and did not know about the 

touching, and defendant agreed to leave the house.

2. Signed admission

S agreed to stay married to defendant for a short 

time so that he could seek counseling using her health insurance. S testified that she insisted, however, that she “needed 

some sort of proof that says that [defendant] did this so that 

*** he couldn’t come back later and say that he wanted the 

kids.” S testified that she wrote the following statement for 

defendant to sign:

“I, [defendant], am admitting to touching my oldest daughter, [M], in an inappropriate way. I went in her room early 

in the morning and was tucking her into bed when I ran my 

hand over her diaper, over her pubic area. I then walked out 

and went to bed. My daughter did not wake up. I have never 

done this before. When my wife came home from work, I 

told her. She told me to leave and I agreed to that and to 

get counseling. I am writing this so my wife, [S,] has proof 

for the protection of our children.”

S also testified that she read the document out loud to defendant, and then defendant read and signed it. In his trial testimony, defendant denied that S showed him the document, 

and he asserted that his signature was forged.

3. M’s disclosures

S and defendant dissolved their marriage in March 

2010. On September 11, 2010, M told S, “Well, one time I 

was in bed with daddy and—and he put his hand down my 

diaper.” M moved her hand over her pubic area to show S 

how defendant had touched her and said that defendant’s 

hand was on “her private.” M said that defendant did not 

take his hand out, so M pulled his hand out of her diaper. M 

told S that she did not tell about the incident sooner because 

she was afraid that defendant “would have to go away.” A 

few days later, before S called the police, she had M repeat 

the story. M’s story was the same except for an added detail 

about defendant saying, “I’m sorry.”

M described the incident similarly in a recorded conversation during a medical examination on September 20,

2010, and in testimony at trial. The physician did not find any 
Cite as 360 Or 584 (2016) 587

physical signs of abuse, but testified that that was consistent 

with an allegation of touching the outside of the vagina.

4. Defendant’s statements to sheriff’s deputies

Defendant was arrested on April 3, 2011, and he 

was confined in the Washington County Jail. Nearly a year 

later, while still in jail and awaiting trial in this case, defendant approached two deputies. According to the deputies, 

defendant asked, “What happens if I confess right now?” 

The deputies testified that, a few minutes later, defendant 

approached them again and said, “I did it. I confess.” A deputy told defendant that the matter was between him and the 

courts. Defendant continued to pace the unit, approached the 

deputies again, and said (again, as the deputies described 

it), “Okay. I touched my daughter. I admit [it]. I’m a jerk.”

B. Dr. Callum’s Pretrial Testimony

Defendant attended 15 counseling sessions with 

Dr. Callum, a licensed psychologist, between December 

2009 and July 2010, beginning shortly after the date of the 

charged offense. Defendant discussed with Callum issues 

of anxiety and marital difficulties. According to Callum, 

defendant told her that he was concerned about “thoughts” 

of touching his children, but assured Callum that he had 

“never” acted on the thoughts.

Before trial, the state filed a motion in limine, 

based in part on OEC 702, to exclude testimony by Callum 

concerning her clinical impressions of defendant. The state 

argued that “defendant will not be able [to] establish a 

sufficient nexus between [his] actions/behaviors and ** * 

Callum’s observations, opinions, discussions, recommendations, or beliefs surrounding her contacts with the defendant.” The state contended that “Callum has not even provided a formal diagnosis, and if such a diagnosis were to 

be provided, ** * there is not a satisfactory link that can 

be demonstrated between the diagnosis and the material 

events that occurred in this case”; thus, her “testimony is 

not assistive to the trier of fact and should be excluded.”

The trial court held a pretrial hearing at which 

defendant elicited testimony from Callum through an 
588 State v. Jesse

offer of proof. On direct examination, Callum testified that 

defendant

“had very low self-esteem. He was also plagued by fears 

and many of the cognitions of his childhood, which kept on 

just ruminating [in] his head, and those were the fears and 

negative thoughts that he was always having. And which 

continuously made him wonder if he was okay, what was 

wrong with him.”

Based on her clinical observations, Callum testified that 

defendant’s “level of rumination” could “definitely lead him 

to become obsessive” and, at times, “be unhealthy.” When 

Callum was asked whether defendant had “adequate coping 

skills and self-esteem to deal with personal issues,” she testified, “No. No. A lot of the times he—he was very fearful, 

and he let ** * the rumination of his thoughts plague. He 

could not let those things go.”

On cross-examination during the offer of proof, 

Callum further explained that she had diagnosed defendant 

with an adjustment disorder and related mental health 

issues:

“A. [CALLUM]: *** I diagnosed him as adjustment 

disorder with depressed mood. And I also diagnosed him 

with a trauma related to childhood physical and emotional 

abuse. And then the AXIS IV would be (indiscernible) experiencing marital difficulties or extramarital affairs.

“Q. [PROSECUTOR]: What is adjustment disorder?

“A. [CALLUM]: Adjustment disorder is when they 

have difficulty in [being] able to cope with the situation or 

where they have—just not being able to—to put everything 

together and they are letting it affect them. And you—and 

there’s several—you can have adjustment disorder not 

otherwise specified, you can have adjustment disorder with 

anxiety and depression. You can have adjustment disorder 

with anxiety alone, you can have it with depression alone. 

You can also have it—adjustment disorder with a variety of 

emotions. And that is a very typical diagnosis when people 

are having difficulty in bringing it all together.”

On further cross-examination, Callum addressed 

the relationship between defendant’s mental health diagnoses and his statements to the jail deputies:
Cite as 360 Or 584 (2016) 589

“Q. [PROSECUTOR]: Were you aware that [defendant] confessed in March of 2012 to touching his daughter, 

to two jail deputies, without them asking any questions?

“A. [CALLUM]: I heard about that, yes.

“* ****

“Q. [PROSECUTOR]: I’m asking you whether you’re 

factoring that in.

“A. [CALLUM]: And that’s what I’m going to say. In 

regards to that confession, I would factor my knowledge 

about him, about his adjustment, you know his high degree 

of distress and so that—that would be where with my medical certainty would be he was very distressed. And whether 

he’s confessing to something out of distress, that’s within 

the realm of possibility.”2

C. The Trial Court’s Ruling

Following the offer of proof, the prosecutor reiterated that “there was no description by ** * Callum, as to 

how this adjustment disorder would have affected [defendant’s] likelihood of confessing, making false confessions, 

writing false confessions, anything.” The prosecutor further 

contended that “there’s been no evidence that would connect 

his mental health issues, or whatever he’s going through, 

his adjustment disorder, to any sort of other behavior, of 

how that would affect his behavior throughout the course 

of trial—and again, that’s what ** * this witness is being 

proffered for.”

The trial court then questioned whether defendant’s 

adjustment disorder was relevant to an issue of fact in the 

case:

2 The prosecutor also elicited the following opinion from Callum on crossexamination:

“Q. [PROSECUTOR]: And all that [a signed confession, disclosure of 

thoughts of sexually touching children, and the jailhouse admissions], even 

knowing that, today you’re testifying under oath, that you believe to a reasonable degree of medical certainty that he did not abuse his children?

“A. [CALLUM]: That’s correct.”

Defense counsel conceded, however, at the conclusion of the hearing, that 

such an opinion was inadmissible “vouching” testimony and that the trial court 

should not treat it as part of his offer of proof. Accordingly, we do not consider that 

testimony in our analysis here.
590 State v. Jesse

“* ** I’m looking at the diagnosis of his adjustment disorder with depression, thinking well, what does that have 

to do with anything. I’m looking at the—he was there to 

be treated by—he was there to be treated by Dr. Callum, 

the wife wasn’t there for treatment, the child wasn’t there 

for treatment, she had very little contact with either one of 

them in a treatment phase. Certainly she is not going to be 

able to get—as you said yourself, she can’t give the opinion 

of what she—that she believes he didn’t do the act, and all 

that kind of stuff.

“But, you know, the fact that he suffers from adjustment 

disorder with depression, has really nothing to do with this 

case. * ** I’m having a hard time figuring out the rest of 

this, because I don’t know what the rest—you were talking 

about you wanted to get into his psychological profile, and 

I’m thinking well, how is that relevant to his not understanding what he signed or—I mean, other than that, I 

don’t know what it’s relevant to.”

Defense counsel replied that defendant’s “psychological profile also applies to the statements of the guards, 

because of his poor coping skills and his excessive rumination and his hallucinatory behavior,” and that “the nexus 

** * is that people who have poor coping skills, try different strategies, and—and people make false confessions, and 

make false statements.” Counsel emphasized that the theory of defense was that the defendant’s hand

“brushed the front of [M’s] diaper, and that what it was 

in fact, was an accidental touching, but that [defendant], 

because of his excessive rumination, as described by 

Dr. Callum, his poor life skills, his poor coping skills, his 

poor understanding of the way things work, I believe she 

described him as being very simplistic, he began ruminating over that and wondering because of his familial origin, 

if he was turning into the kind of person that would do 

something like this to his daughter.”

Counsel added that he was “not just coming up with this”; 

when defendant was evaluated by a different psychologist, Dr. Czar, defendant had denied any sexual motive 

in the touching and had insisted that “what he said to 

Dr. Callum, which was ‘I had bad thoughts,’ was something that he and his wife hatched together to get him 

services. That he was concerned, that because of his 
Cite as 360 Or 584 (2016) 591

family origin, that he might have a subconscious motive 

that was in play.”

Defense counsel explained that the “thrust of our 

case” was that, because of defendant’s “poor coping skills, 

excessive ruminating, which is what Dr. Callum described, 

adjustment disorders,” he deferred to his wife and signed the 

confession when she presented it, “because his overwhelming concern was, ‘I’ll do whatever you guys want me to do, 

I just want to see my children again. If you—if you want 

me to have treatment, I’ll do treatment. I just want to see 

my kids again.’” Counsel further explained that, “under our 

theory, that he has poor coping skills and makes bad choices 

because of poor coping skills, which [Callum] testified to, 

that occurs in false confession cases.”

The trial court ultimately agreed with the state and 

ruled that Callum “cannot get into his psychological diagnosis or profile.” The court concluded that the “diagnosis is 

[not] helpful to the jury. There’s no nexus between that diagnosis and the defense in this case.”

D. The State’s Evidence at Trial

At trial, the state offered evidence of defendant’s 

statements to S about touching M and having sexual 

thoughts about his children, the signed document, evidence 

of defendant’s statements to the deputies, and testimony 

from M that defendant had sexually abused her.

E. Defendant’s Trial Testimony

In his trial testimony, defendant contradicted much 

of the testimony by the state’s key witnesses, as well as parts 

(detailed below) of Callum’s pretrial testimony. With respect 

to S’s testimony about the day that he left the marital home, 

defendant acknowledged that he was very emotional when S 

came home and that he had thoughts about “my cousin and 

my mom being molested as a kid, and I felt that that was 

pretty disgusting.” He testified, however, that he told S that 

he only accidentally had touched M’s diaper while pulling up 

her covers and that S “freaked out.” Defendant insisted that 

he “really didn’t think much of it other than the fact it was 

an accident” and that he took off his ring and left the house 

because of S’s reaction. He described his thoughts as, “[Y]ou 
592 State v. Jesse

know, you’re freaking out at me, I’m done, I’m going to walk 

away here.” Defendant further testified that he had not seen 

the purported written confession until it was provided to his 

attorney during discovery and that his apparent signature 

on that document had been forged.

Defendant further testified that he had not been 

under stress when he spoke to the deputies while in jail and 

that, although he had told them that he had touched his 

daughter, he had not said anything about “private parts.”

With respect to his disclosures to Callum during 

counseling, defendant testified that he had never had inappropriate thoughts about children but that he and S had 

agreed that he would tell Callum otherwise to avoid telling her about the touching incident, which defendant feared 

Callum might have to report to the authorities. Defendant 

also denied that sexual abuse was a “hot button” issue for 

him in light of his family history.

In sum, defendant testified that he lacked a sexual motive when he accidentally touched M, that he had 

not made any incriminating statements to S, that the purported written confession was a forgery, that he had not 

admitted touching M’s private parts to the deputies, and 

that he had falsely told Callum that he had inappropriate 

thoughts about children. The jury found defendant guilty of 

first-degree sexual abuse, and he appealed from the ensuing 

judgment of conviction.

F. The Court of Appeals Decision and Arguments on Review

On defendant’s appeal, the Court of Appeals 

reversed. In concluding that the trial court had erred in 

excluding Callum’s testimony, the Court of Appeals explained 

that “the record supplies a nexus between Callum’s testimony about defendant’s adjustment disorder and its effect 

on defendant.” State v. Jesse, 275 Or App 1, 16, 362 P3d 1187 

(2015). The Court of Appeals explained that defendant’s theory of the case was that he had obsessed over an accidental touching of his daughter and then was “overwhelmed by 

the stress,” causing him to confess falsely. Id. at 15-16. In 

the court’s view, Callum’s “testimony was consistent with 

and would have bolstered that theory, providing a scientific 
Cite as 360 Or 584 (2016) 593

basis—an adjustment disorder that made defendant susceptible to rumination and obsessive thinking, and left him 

with very poor coping skills—to help explain what would 

be a highly unusual reaction to an accidental touching.” Id.

at 16. That is, the Court of Appeals viewed Callum’s testimony as sufficient to support a factfinder’s determination 

that defendant’s written and oral statements were not “true 

admission[s] of guilt.” Id.

On review, the state asserts that the trial court 

properly excluded Callum’s testimony under OEC 702 on 

the ground that it was unhelpful. The state points out that 

Callum did not testify that defendant’s disorder was of a sort 

that has been observed by experts as likely to cause “false 

confessions,” nor did she describe any indicia that a factfinder could use to determine whether defendant’s admissions were linked to his disorder. The state reasons that,

“[w]ithout that type of testimony, the expert left the [factfinder] to speculate as to whether defendant’s disorder 

could have caused him to confess falsely—a matter which 

requires the application of expertise regarding that disorder and its presentation among those afflicted with it. As a 

result, the proffered testimony was not helpful under OEC 

702 and therefore inadmissible under that rule.”

Defendant responds that the Court of Appeals correctly concluded that the trial court had erred in excluding Callum’s 

testimony.

II. ANALYSIS

A. The Helpfulness Inquiry Under OEC 702

As noted, 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.”

In State v. Brown, 297 Or 404, 687 P2d 751 (1984), this court 

explained the nature of the requirement in OEC 702 that, to 

be admitted, scientific evidence must “assist the trier of fact 

to understand the evidence or to determine a fact in issue.”
594 State v. Jesse

“Under the Oregon Evidence Code and traditional evidence law, expert testimony is admissible if it is relevant 

under OEC 401 and will help the trier of fact in deciding a 

disputed issue. To be helpful [under OEC 702], the subject 

of the testimony must be within the expert’s field, the witness must be qualified, and the foundation for the opinion 

must intelligibly relate the testimony to the facts. If these 

conditions are satisfied, the testimony will be excluded only 

if it is unduly prejudicial, repetitive, or falls under some 

other exclusionary provision as provided in OEC 403.”

Id. at 409.3

To be helpful, expert testimony must assist a trier 

of fact to understand the evidence or determine an issue of 

fact that it may not be able to understand or determine as 

well on its own. See Yundt v. D & D Bowl, Inc., 259 Or 247, 

258, 486 P2d 553 (1971). As examples, expert testimony can 

be helpful by:

“‘(1) supplying general propositions which will permit 

inferences from data which the trier of fact would otherwise be forced to find meaningless; (2) applying general 

propositions to data so as to generate inferences where the 

complexity of the body of propositions applied, the difficulty 

of the application, or other factors make the expert’s conclusion probably more accurate or precise than that of the 

trier of fact; (3) modifying, qualifying, and refining general propositions which the trier of fact may reasonably be 

expected to use; and (4) adding specialized confirmation 

and, thus, confidence to general propositions otherwise 

likely to be assumed more tentatively by the trier.’”

State v. O’Key, 321 Or 285, 298, 899 P2d 663 (1995) (quoting John William Strong, Language and Logic in Expert 

3 The parties appear to assume—and we agree with the premise—that 

Callum’s testimony amounted to “scientific evidence.” See, e.g., State v. Milbradt, 

305 Or 621, 631, 756 P2d 620 (1988) (treating testimony of expert about child victims’ normal reactions to sexual abuse as “scientific evidence”). Of course, other 

requirements for the admission of scientific evidence also exist. Most notably,

“[u]nderpinning the entire admissibility analysis * ** is the requirement that the 

evidence be shown to be scientifically valid.” State v. Perry, 347 Or 110, 121, 218 

P3d 95 (2009); see also Marcum v. Adventist Health System/West, 345 Or 237, 245, 

193 P3d 1 (2008) (so holding); O’Key, 321 Or at 301 n 19 (“[S]cientific validity [is] 

the linchpin of admissibility.”). However, because the state’s challenge is narrow, 

focusing only on the helpfulness requirement, we do not address the other foundational requirements for the admission of such evidence.
Cite as 360 Or 584 (2016) 595

Testimony: Limiting Expert Testimony by Restrictions 

of Function, Reliability, and Form, 71 Or L Rev 349, 360 

(1992)).

In this case, defendant asserts that Callum’s testimony would have helped the jury by having a tendency to 

“modify” or “qualify” a “general proposition” that the jury 

may reasonably have been expected to use in this case, 

namely, that a person who appears to admit guilt of an 

offense likely is guilty.4

 This court has discussed the helpfulness of expert testimony offered for analogous purposes 

in two prior decisions that are instructive here.

State v. Middleton, 294 Or 427, 429-30, 657 P2d 

1215 (1983), involved a social worker’s expert testimony 

that the victim’s reaction to rape was typical of most victims 

of familial sexual abuse. The victim testified at trial that 

the defendant—her father—had raped her. The defendant, 

who denied that the rape had occurred, introduced statements by the victim that were inconsistent with her claim 

of rape. In rebuttal, two social workers testified regarding 

the reactions of young victims of family sexual abuse. One 

of the social workers testified that the victim’s behavior 

was typical of most victims. The defendant challenged the 

admission of that testimony at trial on the ground that it 

was not helpful to the jury. Id. at 434. This court concluded 

that the testimony was admissible because it could help the 

jury better assess the victim’s credibility by explaining her 

“superficially bizarre behavior[, i.e., making inconsistent 

statements about whether the rape occurred,] by identifying 

its emotional antecedents.” Id. at 436.

In State v. Gherasim, 329 Or 188, 190, 985 P2d 

1267 (1999), a rape prosecution, the victim had identified 

the defendant as her assailant, but the defendant asserted 

4 Defendant also briefly asserts, without elaboration, that Callum’s testimony would have provided the jury with evidence that it could use to confirm 

defendant’s explanation of his behavior, thereby (in the words of O’Key, 321 Or 

at 298) “adding specialized confirmation * ** to general propositions otherwise 

likely to be assumed more tentatively by the trier.” Because defendant has not 

developed that argument by identifying, for example, what general proposition 

Callum’s testimony would have confirmed that, without that testimony, the jury 

was likely to have “assumed more tentatively,” we do not consider that argument 

further.
596 State v. Jesse

that someone else had assaulted the victim and he merely 

arrived at the scene and attempted to help her. The defendant proffered the testimony of a psychiatrist that the victim experienced dissociative amnesia, which had caused her 

to be confused and unable to recall the events of the assault 

accurately at trial. Id. at 192. The state objected, and the 

trial court allowed an offer of proof, which went into the specifics of what aspects of the victim’s behavior suggested the 

presence of dissociative amnesia. The trial court ultimately 

excluded the testimony. Id. at 196. This court reversed, concluding that the expert’s testimony would have been helpful 

because the expert “would have testified that, in his opinion, the victim suffered from dissociative amnesia and that 

that condition affected her capacity to remember what had 

occurred on the night that she was assaulted.” Id. at 198.

In both Middleton and Gherasim, this court concluded that expert testimony that modified inferences that 

the jury otherwise might be expected to draw from the evidence satisfied the helpfulness standard. Implicit in both 

holdings were determinations that the testimony intelligibly related to a provable fact. See Brown, 297 Or at 409 (stating that foundation for expert testimony must intelligibly 

relate testimony to provable facts). That aspect of helpfulness refers to the relationship—that is, the relevance—that 

expert testimony must bear to a fact in issue. See State v. 

Guzek, 322 Or 245, 251, 906 P2d 272 (1995), vac’d on other 

grounds, 336 Or 424, 86 P3d 1106 (2004) (“‘Relevancy is 

not an inherent characteristic of any item of evidence but 

exists only as a relation between an item of evidence and a 

matter properly provable in the case.’”) (quoting OEC 401 

Commentary, reprinted in Laird C. Kirkpatrick, Oregon 

Evidence 104 (2d ed 1989)). This court’s separate references 

in Brown to the basic relevance requirement of OEC 401 and 

the proposition that, to be helpful, expert testimony must 

intelligibly relate to a provable fact, should not be understood to have created a heightened relevance requirement 

for expert testimony. Instead, the “intelligibly relate” reference gives voice to the unsurprising intuition that, to help 

a trier of fact understand the evidence or decide a fact in 

issue, expert testimony must relate to the fact in an understandable way. See State v. Wright, 323 Or 8, 17-18, 913 P2d 
Cite as 360 Or 584 (2016) 597

321 (1996) (stating that helpfulness “subsumes” a relevance 

inquiry).5

Some expert testimony, like other forms of evidence, 

only conditionally relates to a fact in issue, meaning that 

it is relevant only if another fact—the conditional fact—is 

first proved. State v. McNeely, 330 Or 457, 462 n 5, 8 P3d 

212, cert den, 531 US 1055 (2000).6

 We mention that wrinkle 

here, because defendant proffered Callum’s testimony about 

his adjustment disorder to provide an inference that defendant did not touch M with a culpable mental state. Callum’s 

testimony would be relevant to that fact in issue only if a 

conditional fact was proved, that is, that defendants’ adjustment disorder influenced him to make admissions that were 

not actual confessions of guilt. That conditional fact—like 

any other fact in issue—could be established by reasonable 

inferences, but not through speculation. See State v. Parker, 

235 Or 366, 381-82, 384 P2d 986 (1963).7

B. Standard of Review

With that foundation in mind, our first task is to 

identify the standard that governs our review of the trial 

court’s helpfulness ruling. As discussed, the court concluded 

5 This court repeatedly has described relevancy as a component of the helpfulness analysis. See Brown, 297 Or at 438 (“We have set forth seven factors to be 

used in connection with the definition of ‘relevancy’ as defined in OEC 401 and to 

be utilized in determining the helpfulness test for expert testimony expressed in 

OEC 702.”); see also Marcum, 345 Or at 243 (court must conduct relevancy analysis implicated in OEC 702’s helpfulness standard); Jennings v. Baxter Healthcare 

Corp., 331 Or 285, 302, 14 P3d 596 (2000).

6 See also OEC 104(2) (if “relevancy of evidence depends upon the fulfillment 

of a condition of fact, the court shall admit it upon, or subject to, the introduction 

of evidence sufficient to support a finding of the fulfillment of the condition”).

7 The line between permissible inferences and impermissible speculation is 

difficult to articulate with precision. The federal courts usefully have described 

that line in these terms:

“The line between a reasonable inference that may permissibly be drawn by 

a jury from basic facts in evidence and an impermissible speculation is not 

drawn by judicial idiosyncrasies. The line is drawn by the laws of logic. If 

there is an experience of logical probability that an ultimate fact will follow 

a stated narrative or historical fact, then the jury is given the opportunity to 

draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts.”

Tose v. First Pennsylvania Bank, N.A., 648 F2d 879, 895 (3d Cir), cert den, 454 US 

893 (1981), abrogated on other grounds by Griggs v. Provident Consumer Discount 

Co., 459 US 56, 103 S Ct 400, 74 L Ed 2d 225 (1982).
598 State v. Jesse

that Callum’s testimony was not helpful because it lacked 

a sufficient nexus to defendant’s theory of defense that his 

apparent admissions to S and the deputies were not actual 

confessions of guilt. The state argues that that ruling 

involved an exercise of discretion. Defendant disagrees; he 

asserts that the ruling was based on an erroneous relevance 

determination that is entitled to no deference. As we now 

explain, we agree with defendant that, properly understood, 

the trial court’s ruling is subject to review for legal error.

The parties’ disagreement about the governing 

standard of review is understandable, because this court 

has not always clearly and consistently articulated the standard under which it reviews helpfulness rulings. In State v. 

Rogers, 330 Or 282, 312, 4 P3d 1261 (2000), this court stated 

that the decision whether to admit evidence under OEC 

702 can present a pure question of law (such as whether an 

expert is qualified or whether proffered testimony is within 

the scope of a witness’s expertise), or it can have discretionary aspects, but the court did not explore the nature of the 

helpfulness inquiry. In Gherasim, which did involve review 

of a helpfulness ruling, this court stated that, if a correct 

application of law allows for more than one choice, we review 

the exclusion of expert testimony under OEC 702 for abuse 

of discretion; otherwise we review such a ruling for errors 

of law. 329 Or at 198. However, the court in Gherasim did 

not expressly identify the standard of review that it applied 

in holding that the trial court had erred in excluding the 

expert testimony that the defendant had proffered.

In Middleton, the court suggested that a helpfulness determination can involve an exercise of discretion 

where the challenge to expert testimony focuses on a jury’s 

assumed level of understanding of the evidence before it. See 

Middleton, 294 Or at 437 (“[T]here is no bright line separating issues within the comprehension of the jurors from those 

that are not. Generally the admission of expert testimony is 

within the discretion of the trial court.”). In other decisions, 

this court has discussed the role that discretion can play 

in deciding whether expert testimony would assist the jury 

in understanding the evidence. See, e.g., State v. Stringer, 

292 Or 388, 394, 639 P2d 1264 (1982) (although discretion 

can play a role in helpfulness determination, discretion is 
Cite as 360 Or 584 (2016) 599

inapplicable where jury lacks expertise to understand evidence without assistance); Yundt, 259 Or at 258. In Yundt, 

the court explained:

“There are situations *** where a jury clearly is not 

equally well qualified and needs help to find the truth. 

There are also situations where a jury clearly is equally 

qualified without help from opinion testimony such as 

offered here. It is the area between the clearly qualified 

and the clearly unqualified where the trial judge should be 

granted a certain latitude of decision in excluding or receiving expert opinion testimony.”

Id. at 259. In short, this court’s prior decisions discussing a 

discretionary standard have involved the question whether 

proffered expert testimony would help the jury comprehend 

the evidence. And, those decisions have confined the role of 

judicial discretion to circumstances involving factual issues 

neither clearly within, nor beyond, the jury’s assumed level 

of understanding.

We conclude that the state’s challenge and the trial 

court’s ruling in this case did not implicate such an exercise 

of discretion. As noted, at the outset, the trial court questioned whether Callum’s testimony related to a fact in issue. 

As its colloquy with counsel ensued, the court ultimately concluded that the evidence was not helpful because “[t]here’s 

no nexus between [the adjustment disorder] diagnosis and 

the defense in this case.” We understand that statement, in 

the context of the parties’ arguments, to mean that the court 

excluded Callum’s testimony because it did not think that 

that testimony sufficiently related to the fact issue for which 

defendant proffered it; that is, whether defendant’s admissions were actual confessions of guilt. Stated differently, the 

court in effect concluded that defendant’s proffer was insufficient to permit the jury reasonably to infer the conditional 

fact that his admissions were not actual confessions and, 

therefore, defendant had failed to establish its relationship 

to the ultimate factual issue of whether he acted with a culpable mental state.

Because that inquiry—like any other relevance 

inquiry—leads to a single correct answer, we review the 

court’s ruling for error of law. See Rogers, 330 Or at 312 (“If 
600 State v. Jesse

there is only one legally correct outcome, then ‘discretion’ is 

an inapplicable concept.”); see also State v. Barone, 329 Or 

210, 237, 986 P2d 5 (1999), cert den, 528 US 1086 (2000) 

(court reviews relevance ruling for legal error); Delgado v. 

Souders, 334 Or 122, 135, 46 P3d 729 (2002) (reviewing 

for legal error ruling that evidence was insufficient to support inference for which it was proffered).8

 We now consider 

defendant’s proffer in this case through that lens.

III. APPLICATION

Again, defendant proffered Callum’s testimony to 

support an inference that defendant’s adjustment disorder contributed to an overreaction to accidentally touching M that, in turn, contributed to his making admissions 

that were not actual confessions of guilt. Defendant correctly asserts that so-called false (or unreliable) confession 

defenses involve explaining behavior that, for most laypersons, might appear to be counterintuitive. Thus, expert testimony, if adequately grounded in specialized knowledge, 

can help a jury better understand such behavior. Here, 

Callum’s qualifications as an expert witness are not in dispute, and the state does not challenge the foundation for her 

testimony that defendant had an adjustment disorder that 

caused him to ruminate obsessively, subjected him to a high 

level of distress, and limited his coping skills. It is also true 

that Callum testified that whether defendant had confessed 

out of distress was within the realm of possibility.

The difficulty is that Callum’s testimony demonstrated only defendant’s premises (that he was distressed, 

had poor coping skills, and obsessively ruminated), and 

not the inference that he wanted the jury to draw (that distressed people with poor coping skills who obsessively ruminate may make admissions that are not actual confessions 

of guilt). Unlike the expert in Middleton, Callum did not testify that defendant’s adjustment disorder was of a sort that 

has been observed by experts to influence a person to make 

admissions that were not confessions of guilt. Cf. Middleton, 

294 Or at 436 (expert’s testimony that victim’s behavior was 

typical of most victims could help jury better assess victim’s 

8 The trial court did not base its ruling on OEC 403, nor, in light of our 

ground of decision, do we need to address the application of that rule in this case.
Cite as 360 Or 584 (2016) 601

credibility by explaining her superficially bizarre behavior). 

Nor, analogously to the expert testimony in Gherasim, did 

Callum testify that defendant’s disorder actually influenced 

his statements. Cf. Gherasim, 329 Or at 198 (testimony that 

victim suffered from dissociative amnesia, which caused her 

to be confused and unable to recall what had occurred on 

night she was assaulted, would have been helpful to jury). 

And, defendant did not seek to prove the conditional fact—

that his adjustment disorder influenced his admissions—by 

other means. For instance, defendant did not testify that he 

admitted the facts he did because he was obsessively ruminating or was unable to cope.

We do not mean to suggest that evidence of the 

type that this court concluded was helpful in Middleton

and Gherasim is necessary in every case where psychological profile evidence is proffered to support an inference 

that the defendant’s admissions were not true confessions. 

Otherwise qualified expert testimony that a defendant’s 

psychological profile can produce a false confession, when 

coupled with evidence of indicia that a fact finder could use 

to determine whether the defendant’s mental disorder actually contributed to his or her making a false confession, also 

can be helpful to a jury. See, e.g., People v. Kowalski, 492 

Mich 106, 132, 821 NW2d 14, 31 (2012) (where, in applying Michigan’s identically worded version of OEC 702, court 

held that psychological profile evidence was helpful to jury 

because expert proposed to show that “[interaction] between 

defendant and [police] ‘was consistent with [coerced] internalized confession’”).

Here, however, Callum testified only that, because 

of his adjustment disorder, it was within the realm of possibility that defendant confessed out of stress. She did not 

testify that defendant’s disorder can produce confessions 

that are not genuine, nor did she provide any indicia that 

the jury could use to draw a reasonable inference that his 

admissions were not actual confessions. And, defendant did 

not proffer any other evidence from which the jury could 

have drawn that inference. In sum, because defendant did 

not connect the facets of his adjustment disorder with the 

conditional fact that he wanted the jury to infer, the jury 

would have been left to speculate about the existence of a 
602 State v. Jesse

connection between that testimony and the issue of fact 

whether defendant touched M with a culpable mental state. 

It follows that the court did not err in excluding that testimony on the ground that it would not be helpful to the trier 

of fact.9

Although not necessary to our decision, we note 

an additional concern with Callum’s pretrial testimony in 

relation to the evidence at trial. In particular, key factual 

assumptions underlying that testimony were inconsistent with defendant’s own trial testimony. First, Callum’s 

testimony, and indeed her diagnosis, hinged on a factual 

assumption that defendant testified was false, namely, that 

he was plagued by fears that he might inappropriately touch 

his children and become a sex offender like certain members of his family. As noted, defendant testified that he was 

never concerned with that possibility and that he had falsely 

told Callum otherwise; he further testified that he did not 

tell Callum about the incident that actually precipitated his 

seeking therapy—the touching incident—because he was 

concerned that she might have to report him to the authorities. Thus, the excluded evidence met defendant’s own testimony coming and going.

Second, Callum’s testimony was based on the 

assumption that defendant made admissions to S and the 

deputies because of “distress” due to his adjustment disorder, but her conclusion that he was “distressed” was based 

on his disclosure that he had had thoughts of inappropriately touching his children. That assumption, again, was 

inconsistent with defendant’s own testimony. As discussed, 

defendant testified that he told S only that he had accidentally touched M and that the signed document that the 

9 Cases where defendants have challenged the reliability of their confessions 

under the identically worded FRE 702 are consistent with our conclusion. In U.S. 

v. Hall, 93 F3d 1337 (7th Cir 1996), and U.S. v. Shay, 57 F3d 126 (1st Cir 1995), 

for example, experts were prepared to provide specific testimony to the effect 

that the respective defendants’ mental disorders made them more likely to falsely 

confess. See Hall, 93 F3d at 1341 (experts would have testified regarding the 

defendant’s propensity to falsely confess due to a personality disorder); Shay, 57 

F3d at 133 (expert would have testified that the defendant had a mental disorder 

that made him a pathological liar and caused him to make self-aggrandizing confession). In those cases, the expert testimony offered more than just abstract psychological profile information, because, in addition, it suggested “how to decide 

whether it fit the facts of the case being tried.” Hall, 93 F3d at 1345.
Cite as 360 Or 584 (2016) 603

state offered was forged. With respect to his statements to 

the deputies two years after the alleged abuse, defendant 

denied being under stress, and he testified that, although 

he had said that he had touched his daughter, he had not 

confessed to any sexual motive. In short, even if Callum’s 

testimony otherwise might have assisted the jury to understand why—if he made them—defendant’s admissions to S 

and the deputies were not true confessions,10 the helpfulness 

of such testimony to the jury was significantly undermined 

by defendant’s acknowledgement that he had not disclosed 

to Callum the real reason why he sought therapy, his testimony that he had falsely told her that he had inappropriate 

thoughts about touching his children, and his claims that he 

had not, in fact, made any admissions that involved inappropriate touching at all. In those circumstances, Callum’s testimony had, at best, a confusingly tangential link to defendant’s evidence at trial.11

In sum, we conclude that the trial court did not err 

in excluding Callum’s testimony on the ground that it would 

not have been helpful to the trier of fact.

The decision of the Court of Appeals is reversed. 

The judgment of the circuit court is affirmed.

10 Not to put too fine a point on things, but Callum did not explain how defendant’s psychological profile could cause him to make seeming admissions that 

were not true confessions of guilt and then deny that he had made any admissions 

at all.

11 Of course, defendant’s testimony was not available to the trial court when 

it made its pretrial ruling. Irrespective, though, of whether the trial court’s ruling is regarded as (even more) correct in light of the evidentiary record at trial or, 

alternatively, potentially erroneous when made but ultimately harmless in light 

of the record at trial, the point remains the same here. Key assumptions underlying Callum’s testimony were inconsistent with defendant’s trial testimony in 

ways that supported the trial court’s pretrial ruling excluding it as unhelpful.