State v. Murphy

If a witness unambiguously vouched, it is plain error not to have stricken the testimony, even absent an objection; however, it is a matter of discretion whether to correct this error. See State v. Corkill, 262 Or App 543, 552-53 (2014); State v. Vanornum, 354 Or 614, 629 (2013).

Defendant was convicted of first-degree invasion of personal privacy after recording his 15-year-old stepdaughter, D, undressing. During the bench trial, where the only significant dispute was over D’s credibility, a caseworker testified that her investigation resulted in a determination of “founded for sexual abuse.” Defendant assigns error to the trial court’s failure to strike this testimony, arguing that the error is plain and warrants reversal. If a witness unambiguously vouched, it is plain error not to have stricken the testimony, even absent an objection; however, it is a matter of discretion whether to correct this error. See State v. Corkill, 262 Or App 543, 552-53 (2014); State v. Vanornum, 354 Or 614, 629 (2013). The Court determined that the caseworker’s testimony constituted impermissible vouching because it was a conclusion based solely on her own assessment of D’s credibility. Furthermore, it is reasonable to assume the factfinder in a bench trial would be familiar with the legal meaning of “founded” in this context. However, because the factfinder made a credibility assessment independent of the caseworker’s testimony, there is little likelihood that the error affected the outcome of this case. The Court therefore declined to correct it. Affirmed.