524 July 16, 2015 No. 27

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

CHAD ALLEN BEAUVAIS,

Petitioner on Review.

 (CC 06FE0574SF; CA A147355; SC S062346)

En Banc

On review from the Court of Appeals.*

Argued and submitted March 9, 2015, at Willamette 

University College of Law, Salem, Oregon.

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

cause and filed the brief for petitioner on review. With him 

on the brief was Peter Gartlan, Chief Defender.

Carson L. Whitehead, Assistant Attorney General, 

Salem, argued the cause and filed the brief for respondent 

on review. With him on the brief were Ellen F. Rosenblum, 

Attorney General, and Anna M. Joyce, Solicitor General.

BREWER, J.

The decision of the Court of Appeals and the judgment of 

the circuit court are affirmed.

______________

* Appeal from Deschutes County Circuit Court, Stephen P. Forte, Judge. 261 

Or App 837, 322 P3d 1116 (2014).
Cite as 357 Or 524 (2015) 525

Case Summary: Defendant moved in limine to exclude expert witness testimony concerning a diagnosis of child sexual abuse as unfairly prejudicial under 

OEC 403, as well as expert witness testimony concerning the evaluative criteria 

underlying that diagnosis as impermissibly commenting on the credibility of the 

complaining witness. The trial court denied defendant’s motion, a jury convicted 

defendant of first-degree sexual abuse, and the Court of Appeals affirmed. Held: 

(1) There is sufficient physical evidence of abuse so that a medical diagnosis of 

sexual abuse ordinarily is admissible under OEC 403 if physical evidence meaningfully corroborates the alleged type of abuse; the expert significantly relies on 

that physical evidence in making the diagnosis of sexual abuse; and the causal 

relationship between the physical evidence and the diagnosis is sufficiently complex such that a lay trier of fact cannot assess the connection as well as an expert. 

(2) When a medical diagnosis of child sexual abuse is adequately supported by 

physical evidence of abuse and is otherwise admissible, the expert’s testimony 

concerning the diagnosis ordinarily can include a description of the evaluative 

criteria underlying the diagnosis and the characteristics of the child that led 

to the diagnosis, so long as the testimony is not a direct comment on the child’s 

credibility or a statement that is tantamount to stating that the child is telling 

the truth.

The decision of the Court of Appeals and the judgment of the circuit court 

are affirmed.
526 State v. Beauvais

BREWER, J.

Defendant appeals a judgment convicting him of 

a single count of first-degree sex abuse. ORS 163.427. He 

assigns error to the circuit court’s denial of his motion in 

limine to exclude expert witness testimony concerning a 

diagnosis of child sexual abuse, as well as the evaluative 

criteria underlying that diagnosis that, in defendant’s view, 

impermissibly commented on the credibility of the complaining witness in this case.1

 The Court of Appeals affirmed 

defendant’s conviction. State v. Beauvais, 261 Or App 837, 

322 P3d 1116 (2014). For the reasons now explained, we 

affirm the decision of the Court of Appeals and the judgment of the circuit court.

I. FACTS AND PROCEDURAL BACKGROUND

At the time of the charged incident, KS was ten 

years old.2

 While babysitting defendant’s son, KS and her 

friend, JC, fell asleep on the living room floor of defendant’s 

home. In the early morning, KS woke up to find defendant 

kneeling over her with his hand down her pants, touching 

her vaginal area. When a door opened down the hall, defendant left the room, and KS sat up. Defendant returned to 

the room and asked KS if she was okay. KS replied that she 

had a headache and would go back to sleep. When defendant 

left the room again, KS woke JC and told her that defendant 

had touched her “private area” and that she wanted to go 

home. KS called her mother and asked to be picked up from 

defendant’s home. JC’s father picked the girls up and, based 

on KS’s disclosure that defendant had touched her private 

area, took the girls to the police station.

Later that day, White, a sexual assault nurse 

examiner, examined the girls. In her examination of KS, 

White found increased redness and swelling of the clitoris 

and upper labial folds, increased redness in the upper and 

1 Defendant also assigned error in the Court of Appeals to the denial of 

his motion to sever charges and the denial of a motion for mistrial. The Court 

of Appeals rejected those assignments of error, and defendant did not pursue 

his challenge to those parts of the Court of Appeals’ decision before this court. 

Accordingly, we do not address them on review.

2 On review, defendant challenges the trial court’s pretrial rulings. We take 

the facts from the evidence brought out at the pretrial hearing. To the extent that 

a dispute exists, we state the facts consistently with the trial court’s rulings.
Cite as 357 Or 524 (2015) 527

lower portions of the hymen, and some abrading of the labia. 

White referred KS to the Kids Intervention and Diagnostic 

Service Center (KIDS Center), a child abuse intervention 

center, for a follow up evaluation. About six weeks after the 

incident, Glesne, a staff interviewer, interviewed KS at the 

KIDS Center, and Dr. Kyriakos performed a physical examination of KS. Following that examination, Kyriakos made 

a diagnosis that KS had been sexually abused.

Defendant was charged with one count of firstdegree sexual abuse of KS.3

 Before trial, defendant moved 

in limine to exclude evidence of the KIDS Center evaluation. 

In that motion, defendant sought to preclude Kyriakos and 

Glesne from testifying “as to what [KS] told them and *** 

that in their opinion they believe that [KS] was sexually 

abused.” Defendant argued that such testimony was hearsay and without sufficient foundation. The state responded 

that the evidence was admissible because it was relevant, it 

would assist the trier of fact under OEC 702, 4 and it should 

not be excluded under OEC 403. 5

In a reply brief, defendant expanded the scope of his 

motion in limine by seeking to exclude “evidence of a diagnosis of child sexual abuse” and “any and all other evidence 

that possesses the increased potential to influence the trier 

of fact as scientific evidence, technical evidence, and/or other 

evidence concerning specialized knowledge.” Defendant 

argued that such evidence was irrelevant under OEC 401, 

invalid as scientific evidence under OEC 702, and unfairly 

prejudicial under OEC 403. See State v. Brown, 297 Or 404, 

3 Defendant also was charged with two counts of attempted first-degree sexual abuse of JC relating to a different incident. Those charges were dismissed at 

trial. 

4 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.”

5 OEC 403 provides:

“Although relevant, evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the 

issues, or misleading the jury, or by considerations of undue delay or needless 

presentation of cumulative evidence.”
528 State v. Beauvais

438-39, 687 P2d 751 (1984) (setting out test for admission of 

scientific evidence). Defendant also asserted that the KIDS 

Center evidence as a whole impermissibly commented on 

KS’s credibility. As pertinent to the issues before us, defendant argued that 

“[t]he scientific, technical or other specialized knowledge 

will not assist the trier of fact in understanding the evidence or determining a fact in issue. Defendant will argue 

that the proffered testimony does not constitute a complex 

or ‘superficially bizarre’ phenomenon outside the experience of most jurors. Rather, the proffered testimony concerns a straight-forward matter well within the common 

experience of most jurors.”

Defendant also argued that “[a]ny such evidence would be 

an impermissible comment on the credibility of another witness,” citing State v. Middleton, 294 Or 427, 438, 657 P2d 

1215 (1983) (“[I]n Oregon[,] a witness, expert or otherwise, 

may not give an opinion on whether he believes a witness is 

telling the truth.”).

At a pretrial hearing on defendant’s motion in 

limine, Kyriakos testified about the KIDS Center interview 

and evaluative processes, how a diagnosis of child sexual 

abuse is made, and her evaluation of KS. Kyriakos stated 

that, in evaluating a child for sexual abuse, she looks for 

physical signs that are “diagnostic” of abuse. She also gathers histories from the child, caregivers, and others, including law enforcement and other referral sources. According 

to Kyriakos, the KIDS Center follows accepted national 

and state criteria, which, in addition to physical evidence, 

include consideration of (1) consistency in the core details 

that the child has given over time to law enforcement, caregivers, and others, as well as the information the child 

provides at the KIDS Center; (2) whether the child was 

able to give multiple, in depth, and contextual details; (3) 

whether the child provided information in more than one 

media form, including verbally, through drawings, and by 

using the child’s own body as a reference; (4) whether the 

disclosure of abuse was made spontaneously or whether the 

child was asked about it first; (5) whether the child provided 

specific details regarding sensory-type information, such as 
Cite as 357 Or 524 (2015) 529

something that the child felt; and (6) behavioral changes.6

According to Kyriakos, behavioral changes do not necessarily establish that abuse occurred, but they are “concerning.”

Insofar as this case is concerned, Kyriakos testified 

that she reviewed White’s report of her physical examination 

of KS and noted that White had found redness, swelling, 

and abrasions on KS’s vaginal area. Those physical findings 

were important to Kyriakos because White had examined 

KS on the day of the charged incident; Kyriakos could not 

discern an explanation for the redness, swelling, and abrasions, other than sexual abuse. Kyriakos did not find any 

physical signs of sexual abuse in her examination of KS, 

but she was not surprised, because those symptoms usually 

resolve within days.

Kyriakos testified at length about her application of 

the evaluative criteria to KS. She stated that the core details 

that KS had described were consistent with the core details 

that she had recounted to police officers, her mother, and 

White. In addition, KS provided multiple details, including 

a description of the room and furniture where the abuse had 

occurred and how defendant’s body had been positioned. KS 

also described the incident through multiple media, including a verbal description, a drawing, and by using her own 

body as a reference. During the interview, KS got down 

on the floor to demonstrate defendant’s position when she 

woke up to find him on top of her. She also used her body 

to describe where defendant had touched her. During the 

physical examination, Kyriakos placed her fingers on the 

outside of KS’s labia, and KS was able to tell Kyriakos that 

defendant had touched her “more inside.” Kyriakos stated 

that KS’s disclosure of the abuse also had been spontaneous, 

in that she woke JC to tell her what had just happened and 

6 Those criteria are described in the Forensic Evaluation Critical Analysis 

Guide, published by the National Children’s Advocacy Center. The criteria also 

are part of the Oregon Medical Guidelines for Evaluation of Sexual Abuse in 

Children and Adolescents and the Oregon Interviewing Guidelines, which establish practice standards for child abuse investigations in Oregon and are followed 

by the KIDS Center and other child abuse intervention centers in Oregon. In 

State v. Southard, 347 Or 127, 138-39, 218 P3d 104 (2009), this court concluded 

that “the methodologies that the KIDS Center used to diagnose child sexual 

abuse” indicated that “the diagnosis [of child sexual abuse] possesses sufficient 

indicia of scientific validity to be admissible.”
530 State v. Beauvais

then promptly contacted her mother. Furthermore, KS used 

sensory details to describe the incident, stating that she had 

felt a stinging sensation after defendant had touched her. 

According to Kyriakos, that detail “would only likely be known 

if the child had actually experienced the sensation.” Finally, 

Kyriakos stated that behavioral changes that KS’s mother 

had observed in KS since the incident—being more fearful, 

not wanting to be alone, not wanting to sleep by herself, a 

change in appetite, sadness, and withdrawal—were relevant 

to her evaluation. Based on her overall evaluation, Kyriakos 

testified that she had concluded to a reasonable degree of 

medical certainty that KS had been sexually abused.

At the close of the pretrial hearing, defendant 

objected to the testimony of Glesne and Kyriakos, as well as 

the KIDS Center report and a DVD of Glesne’s interview of 

KS, on the ground that the factual determination whether 

KS had been sexually abused was not complex and expert 

testimony was not needed. Defendant reiterated his general 

objection that the KIDS Center evidence was a comment on 

the credibility of the witness and that it was “just [a] technique[] to be able to introduce evidence to juries to bolster 

the credibility of child witnesses, to convince the jury that 

they should convict based upon a blanket imprimatur of 

medical certainty.” According to defendant, the evaluative 

criteria to which Kyriakos testified and that were discussed 

in the report were “simply a shorthand way of saying that 

the child is believable.”

In addition to the foregoing general objections, 

defendant specifically objected to the following exchange in 

Glesne’s DVD interview of KS on the ground that it was an 

impermissible comment on KS’s credibility:

“Q: Has anybody ... or did anybody, I guess is a better 

way of putting this, told you what to say today?

“A: No.”

The trial court denied defendant’s motion in limine.

At trial, Zancanella, the KIDS Center interviewer 

who had interviewed JC, and Glesne described the criteria 

used in evaluating child sexual abuse. Glesne also testified 

about her interview of KS, and Kyriakos testified about the 
Cite as 357 Or 524 (2015) 531

details of her examination and evaluation of KS and gave 

her medical diagnosis of child sexual abuse. Defendant did 

not object to any of that testimony. Nor did defendant object 

to the admission into evidence of the KIDS Center report or 

the DVD.

A jury ultimately convicted defendant of first-degree 

sexual abuse, and the trial court sentenced him accordingly. 

As noted, on appeal, defendant assigned error to the trial 

court’s order denying his motion in limine. Before the Court 

of Appeals, defendant reprised his pretrial arguments that 

Kyriakos’s diagnosis of sexual abuse was inadmissible and 

that the KIDS Center evidence explaining the bases for that 

diagnosis constituted impermissible vouching for KS’s credibility. In a refinement of those arguments, defendant relied 

on this court’s decision in State v. Southard, 347 Or 127, 140-

41, 218 P3d 104 (2009), for the proposition that a diagnosis 

of sexual abuse that is based in part on physical evidence, 

but also includes evidence that the complainant exhibited 

behavior consistent with having been sexually abused, is 

inadmissible; defendant also relied on this court’s decision 

in State v. Lupoli, 348 Or 346, 362, 234 P3d 117 (2010), for 

the proposition that, even if a diagnosis of sexual abuse is 

admissible, expert witness testimony about the attributes 

of a truthful statement, followed by testimony that another 

witness’s statement contained those attributes of truth, is 

inadmissible to explain such a diagnosis.7

The Court of Appeals affirmed the trial court’s 

denial of defendant’s motion in limine. Relying in part on 

Southard, that court concluded that the admissibility of a 

diagnosis of sexual abuse when physical evidence of abuse 

is present is subject to a balancing test under OEC 403. 

Beauvais, 261 Or App at 843. Applying factors that it previously had described in State v. Ovendale, 253 Or App 620, 

630, 292 P3d 579 (2012), the court concluded that the diagnosis was admissible because: (1) the significance of the 

physical evidence was “a complex factual determination that 

an expert was better able to make than a layperson;” (2) the 

physical evidence had corroborated the type of abuse alleged 

7 The charged incident occurred in 2006. Defendant’s motion in limine was 

decided in 2007. Both Southard and Lupoli were decided after the trial court 

decided the motion in limine but before defendant was tried and convicted in 2010.
532 State v. Beauvais

in this case; and (3) Kyriakos had relied on the physical evidence in arriving at a diagnosis that KS had been sexually 

abused. Beauvais, 261 Or App at 843-44.

The Court of Appeals further concluded that the 

expert testimony explaining and applying the subsidiary 

principles of the sexual abuse diagnosis—the characteristics 

that bear on an evaluation of a child for sexual abuse—and 

KS’s specific characteristics in relation to those principles, 

were “explanations for the admissible diagnosis of sexual 

abuse that are not tantamount to comments on truthfulness and that would assist the jury in determining whether 

[KS’s] complaints were well founded.” Id. at 849.

We allowed defendant’s petition for review to consider the admissibility of a medical diagnosis of child sexual abuse when physical evidence of abuse is present and 

whether the expert testimony explaining the evaluative criteria underlying the diagnosis in this case impermissibly 

vouched for the credibility of KS.

II. ANALYSIS

A. The Record on Review

As pertinent to both issues before us, we note that 

defendant challenges the trial court’s pretrial denial of his 

motion to exclude evidence, not the particular evidence that 

was admitted at trial. That procedural posture frames our 

review. To be sure, a pretrial objection to evidence can preserve the issue of its admissibility for review. State v. Foster, 

296 Or 174, 183-84, 674 P2d 587 (1983) (when defendant 

made sufficient offer of proof of what would happen at trial 

to permit trial court to rule intelligently on admissibility of 

evidence and court made final ruling, “[t]here was no need 

for any further procedure to preserve the assignment of 

error”). However, the scope of the record on review is limited to the record before the trial court when it made the 

challenged ruling. State v. Pitt, 352 Or 566, 574-75, 293 P3d 

1002 (2012).

B. Admissibility of the Medical Diagnosis of Child Sexual 

Abuse

The starting point for our analysis of defendant’s 

challenge to the medical diagnosis of child sexual abuse in 
Cite as 357 Or 524 (2015) 533

this case is this court’s decision in Southard. In that case, 

the defendant challenged a diagnosis of child sexual abuse 

from a KIDS Center physician that was based entirely on 

the child’s statements and history. The issue before the 

court was “whether a diagnosis of ‘sexual abuse’—i.e., a 

statement from an expert that, in the expert’s opinion, the 

child was sexually abused—is admissible in the absence of 

any physical evidence of abuse.” Southard, 347 Or at 142. 

The court first concluded that a medical diagnosis of child 

sexual abuse was relevant under OEC 401 and, as noted, 

that the KIDS Center methodologies possessed sufficient 

indicia of scientific validity for the diagnosis to be admissible under OEC 702. Id. at 138-39. However, the court held 

that, in the absence of corroborating physical evidence, the 

diagnosis was inadmissible under OEC 403 because its probative value was substantially outweighed by the danger of 

unfair prejudice. The probative value was slight, the court 

reasoned, because a diagnosis of child sexual abuse differs 

from other medical diagnoses that “turn on an abstruse 

matter of science,” in that it purports to determine whether 

conduct—an act of sexual abuse—occurred, and that determination is often within the competence of a lay trier of fact. 

Id. at 134-35. Because the diagnosis in Southard did not tell 

the jury anything that it could not determine on its own, its 

probative value was slight. Id. at 140.

On the other side of the scale, the court found that 

the risk of prejudice was great:

“The fact that the diagnosis came from a credentialed 

expert, surrounded with the hallmarks of the scientific 

method, created a substantial risk that the jury may be 

overly impressed or prejudiced by a perhaps misplaced aura 

of reliability or validity of the evidence. * * * [T]he diagnosis is particularly problematic because the diagnosis, which 

was based primarily on an assessment of the boy’s credibility, posed the risk that the jury [would] not make its own 

credibility determination, which it is fully capable of doing, 

but [would] instead defer to the expert’s implicit conclusion 

that the victim’s reports of abuse are credible.”

Id. at 140-41 (citations and internal quotation marks omitted). Ultimately, “the risk that the jury will defer to the 
534 State v. Beauvais

expert’s assessment outweighs whatever probative value the 

diagnosis may have.” Id. at 142.

This case presents an issue that Southard foreshadowed but did not resolve, namely, whether and under what 

circumstances a diagnosis of child sexual abuse is admissible under OEC 403 when physical evidence of abuse is present. Defendant argues that a diagnosis of child sexual abuse 

that relies in part on physical evidence is inadmissible under 

Southard. In defendant’s view, the probative value of such a 

diagnosis is slight—even if supported by some physical evidence—because the jury is equally capable of assessing the 

physical evidence, the credibility of the child, and the other 

evidence admitted at trial to determine whether the alleged 

abuse occurred. Defendant asserts that, even when a medical 

expert relies on physical evidence, a sexual abuse diagnosis 

determines whether relatively uncomplicated conduct—an 

impermissible sexual touching—has occurred, and a jury 

can make that determination without expert assistance. As 

defendant sees it, where physical evidence of abuse exists, 

an expert should be permitted to testify about whether that 

evidence is consistent with the alleged sexual contact, but 

the expert’s opinion that sexual abuse occurred does not 

“turn on an abstruse matter of science,” see Southard, 347 

Or at 135, and, thus, should be left to the trier of fact.

From those propositions, defendant reasons that 

Kyriakos’s diagnosis that KS was sexually abused did little 

to assist the jury in this case. In addition, defendant asserts 

that Kyriakos relied primarily on her own assessment of KS’s 

credibility, rather than the physical evidence that White 

had identified. Defendant notes that, although Kyriakos 

testified that White’s physical findings were significant, 

Kyriakos’s written report did not refer to those physical findings. Defendant also asserts that Kyriakos expressed doubt 

about the significance of White’s findings when she stated 

that “perhaps” the abrasions could have occurred while KS 

was bathing.8

 Because the jury was able to draw its own 

inferences from the physical evidence, defendant argues, the 

8 Kyriakos testified at trial that the abrasions on KS’s vaginal area “perhaps” may have been self-inflicted while KS was bathing, but Kyriakos did not 

think that made sense because the abrasions would have been the result of fairly 

vigorous rubbing or rubbing with something sharp such as a fingernail. Kyriakos 
Cite as 357 Or 524 (2015) 535

diagnosis was only slightly probative, and the prejudicial 

effects that troubled this court in Southard preponderated 

to render the diagnosis inadmissible under OEC 403. 

In response, the state contends that a medical diagnosis of child sexual abuse that relies in part on physical 

evidence provides information to a jury that it could not evaluate as effectively on its own. According to the state, in relying on physical evidence to reach such a diagnosis, an expert 

draws a causal connection between the allegations of abuse 

and the physical evidence. The state asserts that a medical 

expert is uniquely qualified to discern and explain the significance of such a connection to a lay trier of fact. The state 

argues that a diagnosis supported by physical evidence is 

helpful because a layperson is not as capable of determining 

whether physical findings are the result of sexual abuse, as 

opposed to an alternative cause. As to prejudice, the state 

notes that, in Southard, this court explained that the danger 

of unfair prejudice when a medical diagnosis of child sexual 

abuse is not supported by physical evidence is that the jury 

will defer to the expert’s assessment of the child’s credibility. 

Southard, 347 Or at 140-41. By contrast, when an expert 

relies in part on physical evidence, the state asserts that the 

persuasive force of the diagnosis does not rest on a credibility determination, but, rather, on the expert’s explanation 

of the significance of the physical findings in combination 

with the child’s medical history and the allegations of abuse. 

Accordingly, the state reasons, a diagnosis of child sexual 

abuse that relies in part on physical evidence is not unfairly 

prejudicial.

As those propositions apply here, the state asserts 

that White’s findings were an important factor in Kyriakos’s 

diagnosis because Kyriakos opined that there was no reasonable explanation other than sexual abuse for the injuries 

to KS’s vaginal area. The state further argues that, because 

Kyriakos relied on White’s findings and Kyriakos’s diagnosis was helpful to explain the significance of those findings 

to the jury, the diagnosis was admissible.

stated that a person likely would stop rubbing so vigorously once they began to 

feel pain.
536 State v. Beauvais

In summary, the parties propose opposing bright 

line rules: Defendant argues that a child sexual abuse diagnosis is never admissible because it has little probative value 

and is unfairly prejudicial, while the state argues that such 

a diagnosis is always admissible if it is supported by some 

physical evidence because, in that circumstance, its probative value is not substantially outweighed by the danger of 

unfair prejudice.

As noted, the Court of Appeals determined that the 

admissibility of a diagnosis of child sexual abuse when physical evidence of abuse is present remains subject to a balancing test under OEC 403. Beauvais, 261 Or App at 843. As 

elaborated below, we agree with that conclusion.

OEC 403 codifies the discretionary power of a trial 

judge in balancing the probative value of evidence against its 

unfairly prejudicial effect. Brown, 297 Or at 442. However, 

where the admissibility of scientific evidence is concerned, 

this court retains its role to set legal limits that govern the 

exercise of trial court authority under OEC 403. Id.; see also 

Southard, 347 Or at 140 n 11. In Southard, this court set 

a limit on the admissibility of a diagnosis of child sexual 

abuse under OEC 403. We explained:

“Our holding today is narrow. The only question on review 

is whether a diagnosis of ‘sexual abuse’—i.e., a statement 

from an expert that, in the expert’s opinion, the child was 

sexually abused—is admissible in the absence of physical evidence of abuse. We hold that where, as here, that 

diagnosis does not tell the jury anything that it could not 

have determined on its own, the diagnosis is not admissible 

under OEC 403.”

Southard, 347 Or at 142.9 Significantly, this court in Southard

did not hold that the mere existence of supporting physical 

evidence would render a medical diagnosis of child sexual 

9 In Lupoli, this court described Southard’s holding as follows:

“[A] statement from an expert that, in the expert’s opinion, a child had been 

sexually abused was inadmissible in the absence of physical evidence of 

abuse, because it does not tell the jury anything that the jury could not have 

determined on its own, and, therefore, the probative value of any such testimony is outweighed by the danger of unfair prejudicial effect under OEC 

403.”

Lupoli, 348 Or at 357.
Cite as 357 Or 524 (2015) 537

abuse per se admissible. Nor did the court hold that such a 

diagnosis is never admissible, even if supported by physical 

evidence. Instead, the court suggested that the determination of admissibility in a particular case will depend, among 

other things, on the extent to which the diagnosis tells the 

jury something that it could not determine as well on its 

own and the risk that the trier of fact will improperly defer 

to what it reasonably could perceive to be a credibility-based 

evaluation by the expert. See id. (holding that “where, as 

here, [a medical diagnosis of child sexual abuse] does not 

tell the jury anything that it could not have determined on 

its own, the diagnosis is not admissible under OEC 403”).10

In light of the concerns expressed in Southard, we 

conclude that the mere presence of physical evidence of abuse 

is not enough to make a diagnosis of child sexual abuse 

automatically admissible, when that diagnosis otherwise 

rests on what a jury reasonably could perceive to be a credibility-based evaluation. Rather, the physical evidence must 

have more than a speculative or insubstantial connection 

10 In reaching its conclusion, this court in Southard cited several decisions 

from other jurisdictions holding that a medical diagnosis on the “ultimate issue 

of sexual abuse” is not helpful to the jury and is inadmissible. Southard, 347 Or at 

141, 143. Consistently with Southard, each of those decisions involved diagnoses 

that were not supported by physical evidence of abuse. See, e.g., United States v. 

Charley, 189 F3d 1251, 1257, 1265, 1271 (10th Cir 1999) (repeatedly emphasizing 

lack of physical evidence and describing opinions as based “largely” on witness 

statements); United States v. Whitted, 11 F3d 782, 785-86 (8th Cir 1993) (expert 

was merely reciting the allegation of the alleged victim “in the guise of a medical 

opinion”); State v. Iban C., 275 Conn 624, 633, 639, 881 A2d 1005 (2005) (emphasizing that diagnosis was based on witness reports, not on physical examination); 

Atkins v. State, 243 Ga App 489, 491, 495-96, 533 SE2d 152 (2000) (expert was 

unable to opine whether abuse had occurred “based on the current absence of 

physical evidence of molestation”); State v. Bantangan, 71 Haw 552, 554, 558, 

799 P2d 48 (1990) (noting at outset that “[t]here was no evidence of physical 

injury and no third-party witnesses to these incidents,” and ultimately holding 

that expert’s “conclusory opinion that abuse did occur and that the child victim’s 

report of abuse is truthful and believable is of no assistance to the jury”).

Other courts have held that an expert medical witness may render an opinion 

that sexual abuse has in fact occurred if the state establishes physical evidence 

consistent with sexual abuse. See, e.g., State v. Hammett, 361 NC 92, 637 SE2d 

518 (2002) (“[T]he interlocking factors of the victim’s history combined with the 

physical findings constituted a sufficient basis for the expert opinion that sexual 

abuse had occurred.”); Warner v. State, 144 P3d 838, 860 (Okla Crim App 2006) 

(testimony of physician that child victim had suffered physical and sexual abuse 

was admissible, where diagnosis was based upon on his observations of victim’s 

injuries, and his testimony assisted jury in understanding cause of injuries found 

on victim).
538 State v. Beauvais

to the diagnosis; that is, the evidence must meaningfully 

corroborate the diagnosis. In addition, the expert must significantly rely on the physical evidence in making the diagnosis, so that the evidence is neither incidental nor tangential to the diagnosis. Finally, the diagnosis must involve a 

complex factual determination “that a lay person cannot 

make as well as an expert.” See Southard, 347 Or at 140. 

As the causal relationship between physical evidence and 

a diagnosis becomes more complex, that evidence and the 

expert’s interpretation of it increasingly provide jurors with 

information that is beyond their common experience. See id.

at 134-35. The issue is not whether the expert’s path of reasoning necessarily is beyond the competence of all lay people. In some cases, the causal connection between physical 

evidence and a diagnosis of child sexual abuse may be sufficiently complex, even though not entirely abstruse, such that 

expert testimony will assist the trier of fact. See Middleton, 

294 Or at 435 (“[T]he test is whether the expert’s testimony, 

if believed, will be of help or assistance to the jury.” (Citation 

omitted.)).

When those foundational requirements are satisfied, the probative force of the diagnosis is more likely to 

derive from the strength of the causal connection between 

the physical findings and the diagnosis rather than from the 

expert’s assessment of the child’s credibility. We therefore 

hold that, when a jury otherwise reasonably could perceive 

a medical diagnosis of child sexual abuse to be based on a 

credibility determination, the diagnosis nevertheless tells 

the jury something that it is not equally capable of determining on its own if (1) physical evidence meaningfully corroborates the alleged type of abuse; (2) the expert significantly 

relies on that physical evidence in making the diagnosis of 

sexual abuse; and (3) the causal relationship between the 

physical evidence and the diagnosis is sufficiently complex 

such that a lay trier of fact cannot assess the connection as 

well as an expert.

The trial court could have determined that the first 

two requirements were satisfied in this case. With respect to 

corroboration, KS stated that defendant touched and rubbed 

her vaginal area with his hand. White’s examination report 

described redness, swelling, and abrasions of KS’s vaginal 
Cite as 357 Or 524 (2015) 539

area. Kyriakos testified that she could discern no explanation for KS’s injuries other than the alleged sexual abuse. 

With respect to reliance, Kyriakos testified in the pretrial 

hearing that she had reviewed White’s report before she 

had evaluated KS and that she had considered White’s findings in reaching her diagnosis. The documented redness, 

swelling, and abraded areas were “highly concerning” to 

Kyriakos, because they were observed on the same day as 

the incident and, again, she could discern no explanation for 

them other than sexual abuse.11

The trial court also could have determined that 

the third requirement was satisfied in this case. Jurors 

could appreciate that there were various possible causes of 

the redness, swelling, and abrasions found on KS’s vaginal 

area, but they would not necessarily know the likely cause of 

that physical evidence. Kyriakos’s testimony about the significance of the physical evidence involved the application 

of specialized medical knowledge to diagnostic facts; it was 

not based on criteria that laypeople are expected to use in 

their ordinary experience, but, rather, on a medical understanding of a child’s physiology. Thus, the causal connection 

between the physical findings on which Kyriakos relied and 

her diagnosis of child sexual abuse was sufficiently complex 

that the trial court could have determined that that expert 

testimony would assist the jury in assessing that connection.

In sum, the trial court could have concluded that the 

diagnosis of sexual abuse told the trier of fact something that 

it could not determine as well on its own. Further, because 

the diagnosis was based in meaningful part on corroborative 

physical findings, the trial court could have concluded that 

the danger of unfair prejudice described in Southard—that 

the jury improperly would defer to the expert’s assessment 

of the complaining witness’s credibility—was correspondingly reduced. On balance, therefore, we conclude that the 

trial court did not abuse its discretion in determining that 

the probative value of Kyriakos’s diagnosis of sexual abuse 

was not substantially outweighed by the danger of unfair 

11 We reject defendant’s assertion that Kyriakos did not rely on White’s physical findings as a matter of law because she said that “perhaps” the injuries could 

have been the result of KS bathing. Kyriakos made it clear that she did not think 

that was a possibility.
540 State v. Beauvais

prejudice under OEC 403.12 Because the diagnosis also was 

relevant and valid scientific evidence, it follows that the trial 

court did not err in admitting it.

C. Admissibility of Evaluative Criteria Underlying the 

Diagnosis of Sexual Abuse.

In his second assignment of error, defendant asserts 

that, even if Kyriakos’s diagnosis that KS had been sexually abused was admissible, the trial court erred in rejecting his pretrial challenge to the KIDS Center evidence that 

explained the bases for that diagnosis because that evidence 

impermissibly commented on the credibility of KS. Before 

the trial court, defendant based his argument on the longstanding principle that a witness may not give an opinion 

on the truthfulness or credibility of another witness. See, 

e.g., Middleton, 294 Or at 438; State v. Milbradt, 305 Or 621, 

629, 756 P2d 620 (1988) (stating that assessment of credibility of witness is for trier of fact). At the pretrial hearing, defendant argued that testimony regarding the evaluative criteria used by Kyriakos and described in the KIDS 

Center report impermissibly commented on the credibility 

of KS because those criteria were “simply ways to determine 

whether the child is being deceptive or has been coached 

or has been contaminated.” In defendant’s view, the KIDS 

Center experts would be “telling the jury, in essence” that, 

“based on [the] use of the criteria *** [KS] is believable.”13

The only specific evidence that defendant challenged on 

that ground was the part of the DVD interview in which 

Glesne asked KS if anyone had told her what to say, and 

KS answered, “No.” Defendant did not object—either at the 

12 We need not determine whether, on the record before us, the trial court 

would have erred if it had excluded the diagnosis under OEC 403. We reserve 

for another day the question whether, depending on a trial court’s findings of 

case-specific preliminary issues of fact in a close case, this court would defer to 

the court’s decision either to admit or exclude a diagnosis of child sexual abuse. 

See State v. O’Key, 321 Or 285, 320 n 45, 899 P2d 663 (1995) (expressing concern about lack of uniformity in trial court decisions concerning the admissibility of scientific evidence, particularly where “the preliminary facts are not 

case-specific”).

13 On review, the state asserts that defendant made a generalized pretrial 

objection to the KIDS Center report that is unavailing because much of the report 

was “clearly admissible.” Because we understand defendant’s objection to the 

report to have focused on the evaluative criteria that Kyriakos used in this case, 

we deem the objection to be sufficiently specific to address that issue.
Cite as 357 Or 524 (2015) 541

pretrial hearing or at trial—to any other specific statements 

made by the KIDS Center experts in their testimony, in the 

KIDS Center report, or in the DVD of the interview of KS.

Defendant has further refined his argument on 

appeal based on this court’s decisions in Southard and Lupoli. 

In Southard, this court was careful to point out that its decision “[did] not resolve[ ] whether any subsidiary principles 

that inform [the child sexual abuse] diagnosis are themselves admissible.” Southard, 347 Or at 142. In Lupoli, the 

court took on that question. The expert witnesses in Lupoli 

explained that, in making a diagnosis of sexual abuse in the 

absence of physical evidence, they had evaluated the manner in which the child victim had reported the incident and 

whether the victim’s disclosures had been “clear,” “appropriate,” “detail[ed],” “consistent,” “developmentally appropriate,” made in such a way that “you think that a kid is 

telling it like it is,” and had not reflected risk factors such as 

“inappropriate sexual knowledge.” Lupoli, 348 Or at 353-56. 

The defendant did not object to the diagnosis of sexual abuse 

itself. He did, however, object to testimony explaining the 

bases for the diagnosis on the ground that it amounted to 

improper vouching by the experts for the victim’s credibility. 

Id. at 356.

Citing Middleton, this court agreed with the defendant. The court determined that, in the absence of physical 

evidence, such testimony necessarily is based on an assessment of the child’s credibility. Because the testimony could 

not be meaningfully separated from that context, the court 

held that it was inadmissible. Lupoli at 362. The court also 

explained, however, that, “ordinarily,” an expert witness 

may explain the basis for the expert’s diagnosis, as long 

as the diagnosis itself is admissible. Id. at 361. The court 

further observed that the parts of the challenged expert 

testimony in Lupoli “might be admissible in many circumstances, and perhaps even in this case.” Id. As examples, the 

court identified the expert’s assessment of: (1) whether the 

particular victim’s statements are developmentally appropriate; (2) the particular victim’s demeanor and changes in 

demeanor; (3) the particular victim’s disclosure as spontaneous and including descriptive details; and (4) the general 

circumstances that point to a child’s suggestibility or the 
542 State v. Beauvais

possibility that the child has been coached. Id. Such assessments, the court explained, are “the kind of expert opinion 

that can assist a jury” and are not impermissible vouching 

on their own. Id.

On review, defendant focuses his argument on the 

trial testimony and report of Kyriakos, as well as the trial 

testimony of Glesne and Zancanella relating to certain attributes in a child’s account that they are taught to look for, 

including spontaneous recall, consistency in core details, 

the use of sensory details, and the use of the child’s body or 

a drawing in describing what happened. However, as noted, 

because defendant’s only pertinent objections in this case 

were made in his motion in limine and related argument at 

the pretrial hearing, and defendant has assigned error to 

only the denial of that pretrial motion, our review is confined 

to the pretrial record. See Pitt, 352 Or at 574-75 (sufficiently 

developed pretrial objection is sufficient to preserve error 

in absence of an objection to trial testimony, but court evaluates issue based on record made before trial court when 

it issued order); see also State v. Perry, 347 Or 110, 116-17, 

218 P3d 95 (2009) (noting focused inquiry on appeal when 

defendant did not object to discrete pieces of evidence during 

trial or assign error to any ruling occurring after jury was 

empanelled, but instead rested argument on trial court’s 

ruling following pretrial hearing). Accordingly, we examine defendant’s argument that the evaluative criteria that 

the KIDS Center uses generally and that Kyriakos used in 

making her diagnosis in this case amounted to impermissible comments on KS’s credibility through the lens of his 

pretrial objections to evidence pertaining to those criteria.

As noted above, Kyriakos reached a diagnosis that 

was based on physical evidence and other evaluative criteria, but she did not directly testify that KS was credible. 

Instead, in her report and at the pretrial hearing, Kyriakos 

testified as to the criteria that bear on an evaluation of a 

child for sexual abuse—consistency of core details; information given in more than one media form; multiple, contextual, and in-depth details; spontaneity; and sensory details. 

In applying those criteria to KS’s circumstances, Kyriakos 

testified that KS had been spontaneous and consistent in 

her disclosures, that she had used words, her body, and a 
Cite as 357 Or 524 (2015) 543

drawing to describe the abuse, and that she had been able to 

communicate sensory details. The issue is whether that opinion evidence impermissibly commented on KS’s credibility.

A direct comment on the credibility of a witness or a 

statement that is “tantamount” to stating that another witness is truthful is not admissible, even if it is offered as part 

of a discussion of an admissible medical diagnosis. See, e.g., 

State v. Keller, 315 Or 273, 285, 844 P2d 195 (1993) (expert 

testimony that there was no indication that witness had 

been “coached” was impermissible comment on credibility); 

Milbradt, 305 Or at 629-30 (an expert’s opinion that a witness is not deceptive, could not lie without getting tripped 

up, and would not betray a friend is tantamount to expressing the opinion that the witness is telling the truth, and is 

not permissible). Because none of the KIDS Center evidence 

offered at the pretrial hearing involved a direct opinion that 

KS was truthful, the precise issue before us is whether any 

of that evidence nevertheless was “tantamount” to vouching 

for her credibility.

This court has not explained what is meant by a 

statement that is “tantamount” to stating that another witness is truthful, as the court identified in Keller. However, 

the statements that this court deemed improper in Milbradt 

and Keller provide helpful illustrations. Even though the 

experts in those cases did not expressly opine as to the 

truthfulness of the complaining witnesses, the challenged 

statements—that the witnesses had not been “coached” and 

were not “deceptive”—are commonly understood ways of signaling a declarant’s belief that a witness is telling the truth. 

To be sure, stating that a person has not been coached or is 

not deceptive is tantamount to, the equivalent of, and the 

same as stating that the person is truthful.

Middleton furnishes a contrasting example. In that 

case, the complaining witness, a 14-year old girl, initially 

reported that her father had raped her. Two months later, 

she claimed that she had lied about the rape so that she 

could move out of her parents’ house. At trial, however, she 

testified that the rape did occur as originally reported. The 

trial court admitted testimony from two social workers 

who had interviewed the child and who testified as to “the 
544 State v. Beauvais

behavior of the type of children who have reported a claim of 

rape by a family member and whether the [complaining witness’s] behavior was consistent with what [was] described as 

typical behavior.” Middleton, 294 Or at 433. That testimony 

included statements that the expert “found [the victim’s] 

behavior very much in keeping with children who have complained of sex molestation at home,” id. at 432 n 5, and that 

the victim’s behavior of retracting a report was “a very common kind of thing to happen * ** [and] very typical for a 

teenage sex abuse victim,” id. at 433-34 n 6.

The significance of the recantation as an indice of 

the complaining witness’s credibility was hotly contested in 

Middleton. The challenged testimony in that case was relevant to show that what appeared to be unusual behavior for 

a victim of sexual abuse was not, in fact, all that unusual. 

That is, the testimony explained that the victim’s recantation was not uncommon. The fact that the jury might 

further infer from that testimony that the particular complainant in that case had been truthful about the abuse did 

not render the testimony inadmissible. Id. at 435. As the 

court observed:

“It is true that if the jurors believed the experts’ testimony, 

they would be more likely to believe the victim’s account. 

Neither of the experts directly expressed an opinion on 

the truth of the victim’s testimony. Much expert testimony 

will tend to show that another witness either is or is not 

telling the truth. This, by itself, will not render evidence 

inadmissible.”

Id. (citation omitted). In Middleton, the suggestion in the 

expert’s statement that the complaining witness was telling 

the truth was more remote than the inferences in Milbradt

and Keller; when the expert in Middleton informed the jury 

that victim recantation is not unusual, the primary effect 

of the statement was to show that recantation does not necessarily mean that a complainant is untruthful, which is 

not tantamount to, the equivalent of, or the same as stating 

that the particular complainant in that case was telling the 

truth. See also Perry, 347 Or at 118-19, 126 (holding evidence 

that some children who have been abused may delay disclosing abuse admissible, when presented to disprove claim that 

delay in reporting demonstrates that no abuse occurred).
Cite as 357 Or 524 (2015) 545

Admittedly, it is not always easy to draw the line 

between an inadmissible statement that is tantamount to 

a direct comment on the credibility of a witness and an 

admissible statement that is relevant for a different reason but that tends to show that a witness is telling the 

truth. However, that difference is not all that distinguishes 

Middleton from Milbradt and Keller. As important was the 

fact that this court deemed the recantation in Middleton to 

be sufficiently beyond the ordinary experience of a lay finder 

of fact such that expert testimony would “explain[] * ** 

superficially bizarre behavior by identifying its emotional 

antecedents.” Middleton, 294 Or at 436; see also id. at 437 

(testimony was admissible because it would help jury “make 

a more informed decision in evaluating the credibility of a 

testifying child”). No similar assistance was provided either 

in Milbradt or Keller, where this court implicitly decided 

that the credibility determination was not sufficiently complex to conclude that expert testimony would assist, rather 

than impermissibly influence, the jury in making its own 

assessment.

In short, our prior decisions stand for the proposition that, to be admissible, expert testimony must assist—

not undermine—the jury’s own assessment of witness credibility. Expert testimony that provides jurors with useful 

information in making their own credibility assessment 

ordinarily is admissible, as long as it is not either a direct 

comment on the credibility of a witness or tantamount to a 

direct comment on the credibility of a witness.14 Consistently 

14 We reiterate that, even where a credibility determination involves complex 

factual components, there are other legal limits on the admissibility of expert testimony bearing on that determination. In State v. Hansen, 304 Or 169, 176, 743 

P2d 157 (1987), also a child sex-abuse case, this court held that expert testimony 

offered to explain a child’s denial of the alleged abuse could not include testimony 

regarding the “grooming” techniques used by child abusers. The court explained 

that testimony pertaining to the typical responses of sexually abused children,

“arguably is admissible *** because it might assist the trier of fact to understand the student’s initial denial. But the specific techniques used by some 

child abusers ‘to get close to the victim,’ which may result in the child’s emotional dependence on the abuser, are irrelevant to the effect the dependence 

has on the child’s willingness to implicate the abuser. It is the emotional 

dependence, not the specific acts that produce it, that helps to explain the 

child’s behavior.”

Id. at 175-76. In State v. Stevens, 328 Or 116, 970 P2d 215 (1998), the court elaborated on its reasoning in Hansen:
546 State v. Beauvais

with that principle, this court stated in Lupoli that an expert 

witness ordinarily can describe the subsidiary principles—

that is, the evaluative criteria—underlying an admissible diagnosis of child sexual abuse. Lupoli, 348 Or at 361. 

Those criteria include the general characteristics that the 

expert looks for in examining a child for sexual abuse and 

necessarily include characteristics that permit the expert to 

assess the validity of the allegation. See id. at 362.

Because this court in Lupoli concluded that, in the 

absence of a diagnosis supported by physical evidence, the 

challenged evidence in that case constituted impermissible vouching, the court’s discussion of the admissibility of 

evidence pertaining to the evaluative criteria underlying 

an admissible diagnosis of sexual abuse was not, strictly 

speaking, necessary to its decision. However, as the Court 

of Appeals noted, Lupoli “strongly suggests” that, when a 

diagnosis of sexual abuse is admissible because it is adequately supported by physical evidence, “expert opinion is 

not ‘ultimately and only’ based on credibility, [Lupoli, 348 

Or at 362], and those types of assessments that are offered 

in support of a diagnosis and that do not constitute [impermissible] ‘vouching’ are ‘ordinarily’ admissible—that is, 

they are admissible” if the underlying diagnosis of sexual 

abuse is itself admissible. Beauvais, 261 Or App at 847. We 

now endorse that “strong” suggestion, and so hold. When 

a medical diagnosis of child sexual abuse is adequately 

supported by physical evidence of abuse and is otherwise 

admissible, short of a direct comment or a statement that is 

tantamount to stating that the child is telling the truth, the 

expert’s testimony concerning the diagnosis ordinarily can 

include a description of the evaluative criteria underlying 

the diagnosis and the characteristics of the child that led to 

the diagnosis. See Lupoli, 348 Or at 362.

“Although Hansen indicates that testimony that describes the process of victimization may be inadmissible in some circumstances, either because it is 

irrelevant or unduly prejudicial, that case does not hold that such testimony 

is, in all circumstances, inadmissible. Hansen involved the testimony of an 

expert who purported to explain the seemingly abnormal responses of a certain class of victims to a particular type of criminal behavior. In general, 

such experts can and must do so without providing details of the victimization process: Those details are irrelevant to the expert’s subject matter and, 

as such, rarely will pass the balancing test of OEC 403.”

Stevens, 328 Or at 127.
Cite as 357 Or 524 (2015) 547

As applicable here, an expert’s description of a witness’s “spontaneous and descriptive details in her statements” is permissible. Id. Similarly, generally speaking, 

testimony that a witness’s statements were consistent with 

earlier statements that the witness made does not impermissibly vouch for the witness’s credibility. State v. Viranond, 

346 Or 451, 461, 212 P3d 1252 (2009). In combination, 

Lupoli and Viranond support the admission in this case of 

Kyriakos’s testimony about the following evaluative criteria: consistency of core details; information given in more 

than one media form; multiple, contextual, and in-depth 

details; and spontaneity. Only one of the evaluative criteria 

that defendant challenges has not been at least implicitly 

approved in this court’s previous decisions, namely, evidence 

of an expert’s reliance on a witness’s ability to describe sensory details. We also conclude, however, that Kyriakos’s discussion of that criterion did not cross the line in this case. 

Unlike the impermissible vouching in Milbradt and Keller, 

Kyriakos’s testimony about the sensory details contained in 

KS’s statements was not a direct comment on KS’s credibility, nor was it tantamount to stating that KS was telling the truth. Instead, it showed that KS previously had 

experienced a stinging sensation and therefore knew how 

to describe it. That information was helpful to the jury in 

making its own assessment of KS’s credibility.

In sum, Kyriakos’s testimony about the evaluative 

criteria that she used in reaching her admissible diagnosis 

of sexual abuse did not constitute impermissible vouching, 

but, rather, assisted the jury in making their own assessment of KS’s complaint. Accordingly, the trial court did not 

err in rejecting defendant’s pretrial challenge to the portions of Kyriakos’s testimony and the KIDS Center report 

in which she discussed those evaluative criteria and their 

application to KS’s evaluation.

With regard to the sole objection that defendant 

made to specific evidence at the pretrial hearing, we conclude that asking KS whether anyone told her what to say 

during her interview at the KIDS Center, followed by her 

negative answer to that question, was not an impermissible comment on KS’s credibility. Although an expert’s statement that “[t]here was no evidence of leading or coaching” 
548 State v. Beauvais

is impermissible vouching, because it “amounts to testimony 

that the child was credible,” Keller, 315 Or at 285, that is 

not what happened here. When the interviewer asked KS 

whether anyone had told her what to say during her interview at the KIDS Center, the interviewer was attempting to 

determine whether KS had been coached. The interviewer 

did not state—nor did she imply—whether she believed 

that KS had been coached or whether she believed that KS 

was telling the truth. Ordinarily, general descriptions of 

“the circumstances that can point to a child’s suggestibility 

or the possibility that the child has been coached” are the 

types of expert opinions that would assist the jury and are 

not impermissible vouching. Lupoli, 348 Or at 362. Unlike 

the expert’s statement in Keller, the exchange between the 

interviewer and KS was not a comment on KS’s credibility; rather, it presented a basis for the jury to determine for 

itself whether KS had been coached. Accordingly, the trial 

court did not err in admitting that evidence.

III. CONCLUSION

To reiterate, there is sufficient physical evidence 

of abuse so that a medical diagnosis of sexual abuse ordinarily is admissible under OEC 403 if (1) physical evidence 

meaningfully corroborates the alleged type of abuse; (2) the 

expert significantly relies on that physical evidence in making the diagnosis of sexual abuse; and (3) the causal relationship between the physical evidence and the diagnosis 

is sufficiently complex such that a lay trier of fact cannot 

assess the connection as well as an expert. When those factors are present, the diagnosis tells the jury something that 

it could not determine as well on its own; thus, the probative 

value of the diagnosis ordinarily will not be substantially 

outweighed by the danger of unfair prejudice. In this case, 

because those factors were present, the trial court did not 

err in admitting the diagnosis.

Insofar as defendant’s second assignment of error is 

concerned, the trial court did not err in denying defendant’s 

motion in limine to generally exclude the KIDS Center evidence that explained the evaluative criteria for the diagnosis of sexual abuse on the ground that the evidence impermissibly commented on the credibility of the complaining 
Cite as 357 Or 524 (2015) 549

witness. Nor did the court err in rejecting defendant’s sole 

specific pretrial challenge on that ground to a part of that 

evidence.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.