potential rate error in Oregon

2015To evaluate the relevance and helpfulness of scientific evidence, courts consider a number of factors: “‘(1) The technique’s general acceptance in the field; ‘“(2) The expert’s qualification and stature; “‘(3) The use which has been made of the technique; ‘“(4) The potential rate of error; “‘(5) The existence of specialized literature; “‘(6) The novelty of the invention; and “‘(7) The extent to which the technique relies on the subjective interpretation of the expert.’” State v. Sampson, 167 Or App 489, 500 , 6 P3d 543 , rev den, 331 Or 361 (2000) (footnotes omitted) (quoting O’Key, 321 Or at

2015To evaluate the relevance and helpfulness of scientific evidence, courts consider a number of factors: “‘(1) The technique’s general acceptance in the field; ‘“(2) The expert’s qualification and stature; “‘(3) The use which has been made of the technique; ‘“(4) The potential rate of error; “‘(5) The existence of specialized literature; “‘(6) The novelty of the invention; and “‘(7) The extent to which the technique relies on the subjective interpretation of the expert.’” State v. Sampson, 167 Or App 489, 500 , 6 P3d 543 , rev den, 331 Or 361 (2000) (footnotes omitted) (quoting O’Key, 321 Or at

2015State v. Brown, 297 Or 404, 417 , 687 P2d 751 (1984), sets out seven factors “to be considered as guidelines” in evaluating the probative value and reliability of proffered scientific evidence under OEC 401, OEC 403, and OEC 702: “(1) The technique’s general acceptance in the field; (2) The expert’s qualifications and stature; (3) The use which has been made of the technique; (4) The potential rate of error; (5) The existence of specialized literature; (6) The novelty of the invention; and (7) The extent to which the technique relies on the subjective interpretation of the expert.” State v. O’

2015State v. Lyons, 324 Or 256 , 271 n 20, 924 P2d 802 (1996) (citing Brown, 297 Or at 417 n 5).

2017To determine that issue, and depending on the nature of the evidence in question, a court may be required to consider a number of factors, including: “‘(1) The technique’s general acceptance in the field; “‘(2) The expert’s qualifications and stature; “‘(3) The use which has been made of the technique; “‘(4) The potential rate of error; ‘“(5) The existence of specialized literature; “‘(6) The novelty of the invention; and ‘“(7) The extent to which the technique relies on the subjective interpretation of the expert.’” State v. Perry, 347 Or 110, 121 , 218 P3d 95 (2009) (quoting Brown, 297 Or at

2017To determine that issue, and depending on the nature of the evidence in question, a court may be required to consider a number of factors, including: “‘(1) The technique’s general acceptance in the field; “‘(2) The expert’s qualifications and stature; “‘(3) The use which has been made of the technique; “‘(4) The potential rate of error; ‘“(5) The existence of specialized literature; “‘(6) The novelty of the invention; and ‘“(7) The extent to which the technique relies on the subjective interpretation of the expert.’” State v. Perry, 347 Or 110, 121 , 218 P3d 95 (2009) (quoting Brown, 297 Or at

2024Cite as 372 Or 658 (2024) 685 is relevant, it can move to the second step in determining the admissibility of scientific evidence; the second step is to decide if the evidence’s “probative value is substantially out- weighed 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.” Id.

2024Cite as 372 Or 658 (2024) 685 is relevant, it can move to the second step in determining the admissibility of scientific evidence; the second step is to decide if the evidence’s “probative value is substantially out- weighed 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.” Id.

2024Id. at 138 .

2022Before trial, the state sought to exclude or limit Hyman’s testimony and requested a OEC 104 hearing to determine if his testimony met the threshold standard of admissibility for scientific evidence under the factors in State v. Brown, 297 Or 404 , 687 P2d 751 (1984), and State v. O’Key, 321 Or 285 , 899 P2d 663 (1995).4 At the OEC 104 hearing, 4 Brown set out seven nonexclusive factors to use as guidelines to determine if scientific evidence has met the threshold of admissibility: “(1) The technique’s general acceptance in the field”; “(2) The expert’s qualifications and stature”; “(3) The us

2021Then, in O’Key, the court adopted four additional factors from Daubert v. Merrell Dow Pharmaceuticals, 509 US 579 , 112 S Ct 2786 , 126 L Ed 2d 469 (1993)—the leading federal case on the validity of sci- entific evidence—some of which overlap with the Brown fac- tors: (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 818 State v. Henley degree of accep

2017In determining whether proposed expert witness testimony is scientific evidence, and therefore subject to Brown and O’Key , the key issue is “whether the expert’s assertions possess significantly increased potential to influence the trier of fact as scientific assertions.” State v. Marrington, 335 Or 555, 562 , 73 P3d 911 (2003) (internal quotation marks omitted).

2017In determining whether proposed expert witness testimony is scientific evidence, and therefore subject to Brown and O’Key , the key issue is “whether the expert’s assertions possess significantly increased potential to influence the trier of fact as scientific assertions.” State v. Marrington, 335 Or 555, 562 , 73 P3d 911 (2003) (internal quotation marks omitted).

2009In addition to those factors, the Supreme Court has identified 11 other considerations: *401 “(1) The potential error rate in using the technique; “(2) The existence and maintenance of standards governing its use; “(3) Presence of safeguards in the characteristics of the technique; “(4) Analogy to other scientific techniques whose results are admissible; “(5) The extent to which the technique has been accepted by scientists in the field involved; “(6) The nature and breadth of the inference adduced; “(7) The clarity and simplicity with which the technique can be described and its results expla

2008Those factors, however, are not an “exclusive checklist,” Jennings, 331 Or at 302 , and the “ ‘existence or nonexistence’ ” of any particular factor may enter into the final decision on admissibility, “ ‘but need not necessarily do so.’ ” Id. at 303 (quoting Brown, 297 Or at 417-18 ).

2008Those factors, however, are not an “exclusive checklist,” Jennings, 331 Or at 302 , and the “ ‘existence or nonexistence’ ” of any particular factor may enter into the final decision on admissibility, “ ‘but need not necessarily do so.’ ” Id. at 303 (quoting Brown, 297 Or at 417-18 ).

2007Hilaire, 97 Or.App. 108, 112 , 775 P.2d 876 (1989).

2007Hilaire, 97 Or.App. 108, 112 , 775 P.2d 876 (1989).

1996In Brown , this court identified a number of factors that a trial court must consider in ruling under OEC 401 and OEC 702: “(1) The technique’s general acceptance in the field; “(2) The expert’s qualifications and stature; “(3) The use which has been made of the technique; “(4) The potential rate of error; “(5) The existence of specialized literature; “(6) The novelty of the invention; and *273 “(7) The extent to which the technique relies on the subjective interpretation of the expert.” Id. at 417 . 20 The Brown factors were not intended to be exclusive, nor were they intended to be taken as

1995The Witte court also commented on problems with the physical application of the HGN test in the field, noting that, although the angle of lateral deviation is critical to the test, the test results of the NHTSA were obtained through the use of mechanical devices that held the head stable and measured the angle. 251 Kan at 327-28, 836 P2d at 1119-20 .