No. 343 May 30, 2024 713

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ZACHARY RYAN ORVIS,

Defendant-Appellant.

Douglas County Circuit Court

21CR19974; A179099

Thomas M. Hull, Judge.

Submitted April 30, 2024.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and Meredith Allen, Deputy Public Defender, Office 

of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Jon Zunkel-deCoursey, Assistant 

Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, Powers, Judge, and 

Hellman, Judge.

ORTEGA, P. J.

Affirmed.
714 State v. Orvis

ORTEGA, P. J.

Defendant appeals his judgment of conviction for 

various sex offenses involving a five-year-old victim, arguing in his sole assignment of error that the trial court erred 

in denying his motion for a mistrial. The question presented 

is whether a court abuses its discretion when it denies a 

mistrial motion after potential jurors voice opinions during 

jury selection that young children generally tell the truth. 

Defendant argues that such statements vouched for the 

credibility of child victims, presenting a serious risk that 

other members of the jury would be unduly influenced by 

those statements in a case that turned on the credibility 

of a child. We conclude that the trial court’s denial of mistrial under the circumstances presented here was within its 

allowable discretion. Accordingly, we affirm.

FACTS

The facts relevant on appeal are procedural. Defendant went to trial on allegations that he had sexually abused 

a young child, who at the time of trial was five years old and 

was expected to testify. During jury selection, the prosecutor asked the panel questions such as:

•	 “[D]o you think kids are *** likely to be more or less 

truthful than adults?”

•	 “[W]ould you agree * ** that kids process things differently and remember things differently than adults do?”

•	 In light of a jury instruction that “any witness that you 

believe” is sufficient to prove a fact, “what if that witness is a kid?”

Those questions elicited a variety of opinions from 

the jurors. One juror said that children “could be coached 

to be less truthful.” Another said, “[I]t really depends on 

the child,” and “I think that some children tend to tell more 

tales.” One of the jurors opined that children tend to remember less details and focus instead on the “emotional part” of 

what happens to them, but that juror “believe[d] that every 

child wants to tell their truth. * ** What they believe happened to them. And not that they’re wrong or right but, but 

it’s their truth.” One of the jurors offered when pressed that 

they would “still listen to what they have to say.” Another 
Cite as 332 Or App 713 (2024) 715

juror said, “[Y]ou have to hear both sides. If they raise their 

right hand and say they’re gonna tell the truth then I would 

take it for that until they prove me wrong.”

One juror stood out from the others because of his 

longer discussion of the issue and his familial connection 

to child-abuse prosecutions. He explained, among other 

things, that his mother had worked for the Department of 

Human Services (DHS) for “many, many years” and, based 

on his knowledge of the system, he knew that it was “hard to 

prosecute with [a] kid” because “the truth can get distorted 

a lot.” Believing a 12-year-old would be easier than a fouryear-old because “it’s more accurate.” So “the age does matter a lot.” When the prosecutor asked him if he could believe 

a “five year old victim [sic],” he replied that “[i]t would be 

hard” because, based on personal experience, “sometimes 

the truth kind of gets distorted when *** they’re young.”

The prosecutor asked the other panel members if 

anyone disagreed with that sentiment. One juror responded,

“I disagree because with kids in a situation like this 

they may not know and *** they may not be able to verbalize it[,] but they certainly know what happened to them. I 

think a lot of times children tell the truth more than adults 

do because they’re so innocent.”

At that point, the trial court sent the panel out of 

the room and raised concerns with the parties about the 

panel member whose mother worked for DHS. The court 

was concerned that he had sounded like “something of an 

expert” and he was telling everyone that the state’s “witness is going to lie.” As a result, the court was concerned 

that the prosecution’s case was potentially “tainted” by the 

juror’s “damning” statements, which had suggested that

“[y]ou can’t get the truth out of a three, four, or five [year old].”

The prosecutor did not share the same level of concern, explaining, “[W]e’re still voir diring. At *** this juncture * * * the lawyers are assessing these different responses 

that folks are making and deciding preemptory challenge[s].”

Unsurprisingly, defendant’s concern was not with 

the statements by the panel member whose mother worked 

for DHS. Rather, he was concerned with the follow-up 
716 State v. Orvis

statement made by the other juror who had said that “a lot 

of times children tell the truth more than adults do because 

they’re so innocent.” Defendant explained that that comment was “very concerning” because “essentially the juror 

** * [was] trying to convince everybody that kids never lie.” 

For that reason, defendant moved for a mistrial “based on 

the credibility issues and how important the vouching issue 

is and how essentially we have an argument about whether 

a child the same age as the victim in this case is gonna 

be telling the truth. And that argument in the jury pool, I 

think, is essentially tainting the jury pool.”

The court denied the motion. Although the explanation for its ruling is not completely clear, it seems that 

the court concluded that statements by prospective jurors 

did not amount to prohibited “vouching” and that the jury 

would be instructed to decide the case only on the evidence 

received in court.

ANALYSIS

Relying on Article I, section 11, of the Oregon 

Constitution1 and the Due Process Clause of the Fourteenth 

Amendment to the United States Constitution,2 defendant 

argues that the court erred in denying his motion for mistrial because the panel was tainted by “claims that fiveyear-olds are truth-tellers.” Furthermore, he stresses the 

point that those claims were in response to the prosecutor’s 

questions about the credibility of child “victims” and that 

those questions were designed to elicit such responses. He 

argues that, in a case that turned on the credibility of a 

five-year-old witness, the panel members’ comments were 

“vouching” opinions that undermined the presumption of 

innocence and compromised his right to a fair trial.

We review the denial of defendant’s mistrial motion 

for abuse of discretion. State v. Cox, 272 Or App 390, 409, 

359 P3d 257 (2015) (noting that “[a] trial court abuses its 

1 Article I, section 11, provides, in part: “In all criminal prosecutions, the 

accused shall have the right to public trial by an impartial jury in the county in 

which the offense shall have been committed ***.”

2 Section 1 of the Fourteenth Amendment provides, in part: “No State shall 

*** deprive any person of life, liberty, or property, without due process of law; nor 

deny to any person within its jurisdiction the equal protection of the laws.”
Cite as 332 Or App 713 (2024) 717

discretion in denying a motion for a mistrial if the effect is 

to deny the defendant a fair trial”).

We begin our analysis with State v. Evans, 344 Or 

358, 182 P3d 175 (2008). There, the defendant moved for a 

mistrial after a prospective juror said, during jury selection, 

that she knew the defendant because they “used to be friends 

and that she had an ‘outstanding stalking order’ against 

him.” Id. at 360. The trial court excused that juror for cause, 

but it denied the mistrial motion. Id. After we affirmed that 

decision,3 the defendant appealed to the Supreme Court, 

which considered whether the prospective juror’s statement 

“so tainted the remaining prospective jurors as to deprive 

defendant of his right to an impartial jury.” Id.

The court explained that the right to in impartial 

jury safeguards the right to a jury that is “not biased in 

favor of or against either party and that will base its decision on the evidence produced at trial and legal standards 

provided by the trial court.” Id. at 362 (quotation marks 

omitted). The court noted that the defendant’s claim was 

not premised upon the “actual bias” of any particular juror 

(because the defendant was not challenging the denial of a 

motion to excuse a juror for cause); rather, it was a “claim 

of assumed bias.” Id. at 363 (emphases in original). In other 

words, the issue reduced to whether “the excused prospective juror’s reference to the stalking order was so inherently 

prejudicial that the remaining jurors, because they heard 

it, must be assumed to have been unable to disregard what 

they heard and to try the case based only on the evidence 

that would later be adduced at trial.” Id. at 363. The court 

ultimately concluded that the comment was not “so inherently prejudicial as to deprive defendant of his right to 

an impartial jury.” Id. at 367. In doing so, it made several 

important observations.

It emphasized that jury selection is “not an evidentiary phase of trial”—it is a “quest” to discover “jurors who 

will conscientiously apply the law and find the facts.” Id. at 

365 (quoting State v. Nefstad, 309 Or 523, 534 n 6, 789 P2d 

1326 (1990)). To that end, “[i]nquiring into the prospective 

3 State v. Evans, 211 Or App 162, 170, 154 P3d 166 (2007), aff’d, 344 Or 358 

(2008).
718 State v. Orvis

jurors’ potential interest or bias in a case is a legitimate way 

of selecting fair-minded individuals to serve on the jury.” 

Id. That means that jury selection necessarily “entails an 

inherent risk that the panel of prospective jurors will be 

exposed to information revealed by individual prospective 

jurors who are excused from the panel for cause.” Id. For 

example, the statement at issue in that case—noting the 

existence of a stalking order against the defendant—was 

made as “a candid response to a vital question” (specifically, 

whether any of the prospective jurors knew the defendant), 

which was “designed to uncover potential juror bias.” Id. at 

367.

Those observations are key to the resolution of this 

case. Here, as in Evans, defendant is not challenging the 

denial of a for-cause challenge to a particular juror. He is 

arguing that various comments so tainted the prospective 

jury pool that we must assume as a matter of law that the 

other prospective jurors would have been unable to disregard what they heard or to try the case based only on the 

evidence that would later be adduced at trial. We are not 

convinced that any statement made by any of the prospective jurors was so prejudicial.

Moreover, as Evans suggests, the responses elicited 

during the jury selection were exactly the types of responses 

that jury selection is designed to elicit. In a case that turned 

largely on the credibility of a child witness, it was vital to 

determine whether prospective jurors held a bias regarding 

the credibility of child witnesses based on their age alone. 

That is, both parties needed to know whether prospective 

jurors would never believe a child on account of their age 

or vice versa. Discovering such information is the very purpose of jury selection and is necessary to allow the parties 

to raise for-cause challenges to prospective jurors or to exercise their peremptory challenges. Although the quest for 

such information carries the inherent risk that a prospective juror will voice opinions or information that one or both 

parties find to be prejudicial, opting for a rule of law that 

too tightly governs what can be said by prospective jurors 

would chill the parties’ ability to seek the information they 

need from the jury-selection process. Although we are not 
Cite as 332 Or App 713 (2024) 719

holding that comments by a prospective juror during jury 

selection can never require a mistrial, we do conclude that 

the trial court was well within its discretion to deny the mistrial motion here.

Affirmed.