O'Key factors in Oregon

2022Not all of those factors will be relevant in every case, and no single factor is dispositive; rather, “[d]etermining whether evidence is scientifically valid for purposes of OEC 702 is a flexible process aimed at ascertaining the scientific validity of the principles underlying the evidence,” and the Supreme Court “has demonstrated that flexibility when faced with scientific evidence as to which of the Brown/O’Key factors do not naturally fit.” Id. at 818.

2011The primary thrust of his objection was that the measurement readings from the device on which Balzer had relied to determine the distances was scientific evidence, and, therefore, defendant was "challenging the scientific principles [underlying] a complicated mechanism to determine a measurement." Defendant argued to the court that the state had failed to satisfy the *106 factors delineated in State v. Brown, 297 Or. 404 , 687 P.2d 751 (1984), and State v. O'Key, 321 Or. 285 , 899 P.2d 663 (1995), for the admission of scientific evidence: "I am saying [that the state] did not lay [foundation

2022The Supreme Court in O’Key also discussed four additional factors that may be useful, and which overlap somewhat with the Brown factors: (1) “whether the theory or technique in question can be (and has been tested)”; (2) “whether the theory or technique has been subject to peer review and publication”; (3) “the known or potential rate of error and the existence of operational standards controlling the technique’s operation”; and (4) “the degree of acceptance in the relevant scientific community.” O’Key, 321 Or at 303-04 (internal quotation marks omitted). 5 In making that ruling, the trial cou

2016Id. at 561 (quoting O’Key, 321 Or at 291-92 , and explaining that evidence is scientific for purposes of the Brown!O’Key framework when it “draws its convincing force from some principle of science, mathematics and the like”).

2022We noted that, in Perry, 347 Or at 121 , the court relied only on the few factors that it considered germane to address scientific evidence on the phenomenon of delayed reporting of child sexual abuse and that, in Marcum v. Adventist Health System/West, 345 Or 237, 245-46 , 193 P3d 1 (2008), the court declined to use the Brown/O’Key factors at all, because they were not useful in evaluating the scientific basis for medical causation testimony, which differed in nature from a particular technique or method.

2015See, e.g., State v. Perry, 347 Or 110 , 123 n 14, 218 P3d 95 (2009) (“[W]here a trial court has ruled that certain evidence is admissible as ‘scientific evidence,’ a party ordinarily may not predicate a claim of reversible error on the court’s failure to address one or more criteria that the party did not argue.”); State v. Baucum, 268 Or App 649 , 664 n 17, 343 P3d 235 (2015) (declining to consider arguments pertaining to specific Brown/O’Key factors that were not raised before the trial court).

2025See State v. Hall, 336 Or App 812, 817 , 562 P3d 284 (2024), rev den, 373 Or 712 (2025) (explaining requirement that proponent of scientific evidence must lay a sufficient foundation based on nonexclusive Brown/O’Key factors, including “whether the theory or technique in question can be and has been tested; whether it has been subjected to peer review or publication; the known or potential rate of error; the existence of standards governing the use of the technique; its degree of acceptance in the relevant scientific community; and the expert’s qualifications”).

2025See State v. Hall, 336 Or App 812, 817 , 562 P3d 284 (2024), rev den, 373 Or 712 (2025) (explaining requirement that proponent of scientific evidence must lay a sufficient foundation based on nonexclusive Brown/O’Key factors, including “whether the theory or technique in question can be and has been tested; whether it has been subjected to peer review or publication; the known or potential rate of error; the existence of standards governing the use of the technique; its degree of acceptance in the relevant scientific community; and the expert’s qualifications”).

2021See Southard, 347 Or at 134 ; Brown, 297 Or at 417 & n 5.

2012Id. at 134.

2025If defendant was focusing on her narrative about whether the state could prove she was driving, it is reasonable for counsel to want to downplay or avoid evidence about impairment evidence that may be used improperly, the solution offered by the majority is more harmful than helpful. 7 Eatinger made note of the various ways an officer could have qualified their testimony about FSTs to qualify under OEC 702 and provide an opinion to the jury, such as the existence of specialized literature or other Brown/O’Key factors. 298 Or App at 645. *51 to avoid highlighting the state’s strengths.