State v. Banks

The exclusion of lay witness testimony is not harmless when it is admissible under OEC 701 and provides otherwise unavailable information, provides for expert witness impeachment, or provides “evidence from which a jury could infer the defendant’s mental state or level of intoxication.”

Defendant appealed his conviction for DUII. Defendant assigned error to the trial court’s exclusion of lay witness testimony. On appeal, Defendant argued that testimony from his wife and children about medical episodes he has had in the past and comparing them to behavior at his arrest was not scientific under OEC 702. In response, the state argues that the lay testimony would not have been helpful to the jury under OEC 701 and that the offer of proof was imperfect, containing both admissible and inadmissible evidence. The exclusion of lay witness testimony is not harmless when it is admissible under OEC 701 and provides otherwise unavailable information, provides for expert witness impeachment, or provides “evidence from which a jury could infer the defendant’s mental state or level of intoxication.” The Court found that the trial court improperly determined that proffered testimony was scientific because it was not about a specific diagnosis or the principles underlying a diagnosis and noted that the state did not argue on appeal that the evidence was scientific. The Court declined to engage with the state’s arguments on appeal because they were unpreserved, and the state failed to correctly argue that the trial court was “right for the wrong reason.” Finally, the Court determined that, based on the broad language in OEC 701 and that the testimony would have “provided a different perspective on [D]efendant’s level of intoxication,” the error was not harmless. Reversed and remanded.