State v. Roden

Oregon Court of Appeals · 2019 · Evidence

296 Ore. App. 604 (2019)

Updated August 22, 2026

Evidencescientific evidenceharmless errorsearch warrant particularitycell phone searchesbite mark evidenceexpert testimonyscientific reliability

Facts

The state charged defendant with homicide, assault, sexual, and criminal mistreatment offenses after a young child, EW, died and her brothers, PK and PW, were found to have extensive injuries. At trial, the state presented expert testimony from a forensic odontologist and pediatricians that several marks on the children were adult human bite marks. Defendant's theory as to the homicide charges was that EW died from infection-related sepsis rather than from abuse-related trauma, and he argued that some skin lesions thought to be bites or burns were actually signs of infection. Police had also obtained a warrant to search defendant's cell phone for communications with Wing and items related to the children, leading to discovery of incriminating texts and photographs.

Issue

Whether the trial court erred in admitting bite-mark expert testimony under the Brown/O'Key standards for scientific evidence, and if so, whether that error was harmless. Also, whether the warrant authorizing the search of defendant's cellular phone lacked the particularity required by Article I, section 9, of the Oregon Constitution.

Rule

The proponent of scientific evidence must establish admissibility by a preponderance of the evidence under Brown/O'Key, including considerations such as testing, peer review and publication, acceptance in the relevant scientific community, known or potential error rate, operational standards, and the degree of subjectivity involved. An evidentiary error is harmless only if there is little likelihood that it affected the verdict, with the focus on the possible influence of the error on the actual verdict rendered. In assessing harmlessness, courts consider the importance of the evidence to the parties' theories, whether it concerned a central or tangential issue, and whether it was cumulative or duplicative in context.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a child-injury prosecution in Salem, the state offers a forensic pattern analyst to testify that crescent marks on a toddler's arm are adult bite marks. The analyst says the field has been 'widely used for years' and that he personally has never been wrong, but he cannot identify any peer-reviewed validation studies, objective standards, or supported error rate.

If the defense objects that the testimony is scientific evidence lacking an adequate foundation, how should the court rule?

Explanation. The majority held that the proponent of scientific evidence bears the burden of establishing admissibility by a preponderance of the evidence. Relevant considerations include testing, peer review and publication, acceptance in the relevant scientific community, known or potential error rate, operational standards, and the degree of subjectivity. Where the expert cannot support validation, standards, or error rate, the foundation is inadequate.