A Few Words on State v. Branch
Earlier this year, the Oregon Court of Appeals decided a case—State v. Branch, 243 Or App 309 (2011)—that on its face may appear to lower the threshold for admitting scientific evidence. Below are some thoughts on why you might see this case being cited frequently—and why in fact its application should be very narrow.
In State v. O’Key, 321 Or 285 (1995), the Oregon Supreme Court set forth its standard for the admissibility of scientific evidence. In doing so, however, the court noted that courts would not necessarily have to undertake that analysis in every case. Specifically, the court described the applicability of its analysis as follows:
For now, we hold that, in the absence of a clear case, a case for judicial notice, or a case of prima facie legislative recognition, trial courts have an obligation to ensure that proffered expert scientific testimony that a court finds possesses significantly increased potential to influence the trier of fact as “scientific” assertions is scientifically valid. Id. at 293 (emphasis added; footnote omitted).
Before Branch, the “prima facie legislative recognition” carve-out had been recognized, see State v. Helgeson, 220 Or App 285 (2008) (blood alcohol testing), but no Oregon appellate court had ever approved any form of scientific evidence under the “clear case” or “judicial notice” exceptions. Those were the exceptions at issue in Branch.
The evidence in Branch
Branch involved the use of “lidar devices,” which are laser instruments used to measure distances (the key factual issue was whether the defendant had delivered cocaine within 1,000 feet of a school). Before the trial court, defense counsel had properly objected to the evidence as scientific evidence that did not meet the O’Key standard. The trial court had concluded that the State had laid an adequate foundation, and the defense appealed.
Instead of analyzing the State’s foundation under the O’Key standard, the court started by considering whether the lidar evidence fit within one of the O’Key carve-outs—specifically, the “clear case” or “judicial notice” exceptions. Recognizing that it was breaking new ground, the court started with what was arguably an internal inconsistency: “[W]e must assess whether the principles and methodologies are universally accepted, recognizing that science, by its nature, does not lead to certainty or complete agreement.” (Emphasis added; footnote omitted.)
Ultimately, the court “conclude[d] that the scientific principles and the means of applying those principles to the problem involved are so clearly apt for the end of measuring distances that those principles and their use for that purpose are indisputably valid.” Because the basis for the court’s conclusion bears heavily on the breadth of Branch’s application, it’s worth quoting at some length:
[T]he basic scientific principle underlying the conclusions generated by the algorithm used by a lidar device—the distance measurements—is the speed of light, one of the “fundamental constants of physics and chemistry” in our universe. The universal acceptance of using lidar devices to measure distances is shown by its widespread, everyday use in multiple contexts, including its pervasive use as a replacement for tape measures in construction projects and as a measuring device for surveying purposes. Further, as [the officer] testified at trial, law enforcement departments nationwide, including the Portland Police Department for the past 13 years, routinely use lidar devices for forensic purposes, e.g., to measure distances and the speed of automobiles. Put succinctly, the employment of a lidar device to measure distance is far from a novel means of obtaining those measurements. Further, and importantly, although defendant argues that the state failed to present evidence at trial to establish that the scientific principles behind the development and use of lidar devices to measure distance are universally accepted in the scientific community, he does not substantively challenge on appeal those principles or the scientific validity of using lidar devices to measure distances.
Notably, the court stated that it would have found the evidence admissible under either the “clear case” or “judicial notice” analyses, and treated the two as closely intertwined—for example, it noted that it could “rely on judicial notice” to “establish” that “the principles underlying the proffered evidence and the application of those principles to the problem involved are indisputably valid.”
Application to future cases
The Branch opinion is, admittedly, frustrating in some respects. Although O’Key clearly places the burden on the proponent to establish the validity of scientific evidence, the last sentence in the block quote above arguably shifts that burden, at least in certain circumstances. In addition, Branch supports (again, at least in some situations) giving the proponent an opportunity to cure an insufficient trial-level foundation through judicial notice on appeal. Still, we shouldn’t get too discouraged—and more importantly, we need to be ready to distinguish Branch when prosecutors cite it against us.
The key is to emphasize just how unique Branch’s facts were. By all indications, the lidar evidence appears to be pretty decent science. If the recitations in the opinion are accurate, the technology is used pretty universally, including in fields other than law enforcement. And it does seem to be of a much higher quality than most forensic evidence—notably, in a footnote the court compared the lidar evidence to “body temperature readings from a state-of-the-art digital thermometer.”
It’s possible that the trial and appellate courts, and perhaps the prosecutor, got caught off guard—it may have seemed obvious to them that this evidence was valid, but it wasn’t clear how the foundation should be laid. And other than the fact that the proponent has the burden, there doesn’t seem to have been anything in the record to create any question regarding the quality of the evidence. (That’s not in any way a criticism of trial counsel, who appears to have done a great job creating the best record possible under the circumstances.)
Even with all that, it’s worth noting that Judge Haselton wrote a concurring opinion expressing some real hesitation regarding the court’s direction. Remember, too, that this was the first time in the sixteen years since O’Key that any evidence has been approved under the “clear case” or “judicial notice” exceptions.
So how do we avoid Branch? The best answer, of course, is to do everything in our power to keep the validity of the evidence from looking like a “clear case”—which, we should emphasize, means something comparable to “body temperature readings from a state-of-the-art digital thermometer.” Not much of the State’s evidence will come out favorably in that comparison.
Come prepared to do something—anything—to raise some uncertainty. You may want to do something like what I did in a recent case where I expected the State would rely on one of these exceptions. I went to the OHSU library and printed up copies of several articles from the relevant field. None of these articles called the basic science into question, but they did express different conclusions on some details. That may well have been enough. At least for purposes of avoiding the “clear case” carve-out, you shouldn’t need to affirmatively disprove the validity of the State’s evidence—it should be enough to show that there is some variation within the field.
Of course, you can always rely on cross-examination to chip away at universality and certainty. Finally, although there are some pitfalls involved in calling your own expert at an admissibility hearing, in the right case it could be a great way to open the door just far enough to avoid the exception and require a full O’Key foundation. That’s where you want to end up.
As always, your thoughts and questions are most welcome.
 The “judicial notice” portion of the court’s opinion is a little opaque. It’s not always clear whether “judicial notice” is treated as a separate carve-out or as a procedural vehicle by which the proponent can effectively lay an O’Key foundation for the first time on appeal.