STATE OF OREGON v. PLACIDO SALVADOR SOLANO (2026)

On review in this criminal case, we address two questions. The first is whether the trial court erred in excluding evidence defendant proffered under OEC 608(1) to impeach the complainant, A. OEC 608(1) authorizes one witness to testify about another witness's character for truthfulness or untruthfulness, provided that the testimony is in the form of opinion or reputation testimony. Defendant and A are cousins, and defendant sought to present several family members to testify about their opinions that A has a character for untruthfulness. The family members had known A most of her life and had had frequent contact with her until she accused defendant of the charged crimes. The trial court excluded the witnesses’ testimony on the ground that defendant had failed to lay a foundation for it. In doing so, the trial court applied Court of Appeals case law holding that, for one witness to provide opinion testimony about another witness's character for truthfulness or untruthfulness, the witnesses must have had recent contact. Although defendant's witnesses had had frequent contact with A for most of her life, they had had little to no contact with A during the three-year period between her accusations and defendant's trial. Based on that three-year gap, the trial court held that the witnesses’ contacts with A were too remote and excluded their opinions about A's character for untruthfulness. The Court of Appeals affirmed, adhering to its case law that conditions the admission of OEC 608(1) opinion evidence on recent contacts. State v. Solano, 332 Or App 646, 651, 551 P3d 938 (2024).

This court has not yet addressed the foundation requirements for lay witness opinion evidence proffered under OEC 608(1). Here, based on the text, context, and legislative history of OEC 608(1), we conclude that recent contacts are not a precondition to the admission of such evidence. Their existence can support, but is not necessarily required for, the admission of the evidence. As we will explain, lay opinion evidence proffered under OEC 608(1) is subject to the foundation requirements set out in OEC 701 for lay opinion evidence in general; specifically, it must be “(1) [r]ationally based on the perception of the witness; and (2) [h]elpful to a clear understanding of [the] testimony of the witness or the determination of a fact in issue.” In this case, the trial court erred in applying a recency requirement that is not part of the OEC 701 foundation requirements. The error was not harmless because the trial court could have admitted the evidence if it had applied the OEC 701 foundation requirements and the evidence was relevant to A's credibility, upon which the state's case depended. Therefore, we reverse the part of the Court of Appeals’ decision that relates to defendant's OEC 608(1) evidence, reverse the trial court's judgment, and remand the case to the trial court for further proceedings.

The second question in this case, which we address because of the possibility that it could arise on remand, is whether the trial court erred in denying defendant's pretrial motion to preclude the use of the term “disclosure” to refer to the allegations against him. Defendant argued that describing a statement as a “disclosure” implies that the statement is true and, therefore, constitutes improper vouching. The trial court denied the motion, and the Court of Appeals affirmed. Solano, 332 Or App at 655.

Based on the definition of “disclosure” and examples of how the term is commonly used, we conclude that describing a statement as a “disclosure” does not necessarily convey a belief that the statement is true. Therefore, we conclude that the trial court did not err in denying defendant's motion to categorically preclude use of the term. Accordingly, we affirm the part of the Court of Appeals’ decision that relates to that motion.¹

I. BACKGROUND

Defendant and A are part of a large, extended family that regularly gathered together when defendant and A were children. One night in 2008, A's family invited defendant and his brother, Octavio, to sleep over at their new apartment, which was not yet fully furnished. At the time, defendant was 13, Octavio was 11, A was 7, and her sister, J, was 6. The four children slept on a bedroom floor. The girls did not report anything unusual about the sleepover that night or for the next ten years.

In 2018, A and J accused defendant and Octavio of sexually abusing them at the sleepover. They spoke first to their mother, who contacted the police. They were questioned by a police officer and later interviewed by a forensic interviewer. A alleged that defendant and Octavio had sexually touched her and that defendant had sexually penetrated her. J alleged that Octavio had sexually touched her.

In 2019, the state charged defendant with first-degree rape and first-degree sexual abuse of A, and it charged Octavio with first-degree sexual abuse of J.² The charges against defendant were later severed from those against Octavio, so that the brothers’ cases would be tried separately. Due in part to the COVID-19 pandemic, defendant's trial was not held until 2021. Octavio's trial was to follow.³

Defendant filed a pretrial motion to preclude the use of the term “victim” to refer to A and J and the use of the term “disclosure” to refer to their allegations of abuse. Defendant's position was that use of the terms would constitute vouching, which is the expression of one's personal opinion about the credibility of another's statement and is prohibited under Oregon law. See State v. Sperou, 365 Or 121, 128-30, 442 P3d 581 (2019) (defining vouching and describing rules prohibiting witnesses and lawyers from vouching); see also id. at 139 (holding that trial court erred in denying the defendant's motion to prohibit witnesses’ use of the term “victim” to refer to the complainant and others who had accused the defendant of sexual abuse where the accusations constituted the only evidence of the sexual abuse). The trial court granted the motion as to the term “victim,” but denied it as to the term “disclosure.”

At defendant's trial, the state called A and J as witnesses, and they testified about the night of the sleepover. A testified that defendant had sexually touched her. J testified that she did not hear defendant do anything that night, but that Octavio had sexually touched her (J). In addition to A and J, the state called witnesses who relayed the out-of-court statements that A and J had made about the alleged crimes, specifically, A and J's mother, the police officer who questioned them, and the forensic interviewer. The state also presented a recording of A's forensic interview and the testimony of a police officer who attended the interview.

The prosecutor used the term “disclosure” during his opening statement and closing argument and while questioning the police officers. The officers did not use the term themselves. The forensic interviewer used the term once when generally describing her office's method for conducting interviews.

Defendant's defense was that A and J had fabricated their allegations in order to secure visas available to crime victims. Both defendant and Octavio testified and denied the allegations. In addition, three of defendant's cousins and one of his sisters testified about how the extended family interacted and that it was common for all the cousins to watch movies together or sleep in the same room at family gatherings. The three cousins testified that defendant had always been sexually appropriate during those gatherings. The defense also presented several witnesses who testified that, prior to A and J's allegations, A and J's mother had spoken frequently about people she knew who had received crime-victim visas and how she hoped something would happen to her family so that they would qualify for such visas.

At trial, defendant sought to have seven witnesses testify, pursuant to OEC 608(1), about their opinions of A's character for untruthfulness. The prosecutor objected, and the parties litigated the matter outside the presence of the jury. The prosecutor argued that defendant had failed to lay a foundation for the witnesses’ testimony. He asserted that, under Court of Appeals case law, defendant had to show that the witnesses had recent contact with A and that, because the witnesses had little to no contact with A in the preceding three years, defendant could not satisfy that “recency” requirement.⁴

Defense counsel made an offer of proof. He first called one of defendant's sisters, Carmella, as a witness. Carmella testified that she had known A for over 15 years, had had frequent conversations with her, and had heard her lie on multiple occasions. But, in the three years between when A made her allegations against defendant and the trial, Carmella had had contact with A only once. The trial court excluded Carmella's opinion that A was untruthful, ruling that, although there was a time when Carmella had had frequent contact with A, it could not find that the “rule about recency” was satisfied.

Defense counsel then informed the trial court that another one of defendant's sisters, Rafaela, would testify similarly, and the trial court excluded her testimony for the same reason, stating that her contacts with A were not “recent enough.”

Finally, defense counsel called defendant's aunt, Angelita, who also testified that she had known A for more than 15 years and had spent time with her at family gatherings; in addition, she had worked with A. Angelita testified that, over the years, she had heard A lie about family and work matters. Angelita had had “a lot” of contact with A, but not in the three years before trial. Based on the three-year gap, the trial court ruled that Angelita's contacts failed to satisfy the recency requirement. Defense counsel informed the court that the remaining four witnesses had similar contacts with A, and that, in light of the trial court's ruling, he would not call them as witnesses in his offer of proof.

In their closing arguments, the parties contended that the case turned on whether the jurors believed A's statements. The prosecutor told the jurors that “[t]his case hinges on whether you believe the statements of [A],” and he encouraged them to consider both A's in-court testimony and her out-of-court statements to others. Defense counsel highlighted inconsistencies in A's statements and the possibility that she had fabricated the allegations to secure a visa.

The jury found defendant not guilty of the rape charge, but guilty of the sexual abuse charge. Defendant appealed.

On appeal, defendant assigned error to the trial court's exclusion of his witnesses’ testimony about A's character for untruthfulness. Defendant asserted that the witnesses’ testimony had

“probative value as to A's testimony at trial despite the gap in contact. The state would have been free to highlight the three-year gap in contact during cross-examination. The jury should have been permitted to determine the weight to give the character witnesses’ testimony.”

Defendant further asserted, in the alternative, that even if the trial court did not err in excluding the witnesses’ testimony as to A's character at the time of trial, “it erred by failing to evaluate whether the testimony could be used to impeach A in her role as a hearsay declarant.” Defendant contended that, because the state had introduced A's initial allegations against him, his witnesses could testify about her character for truthfulness at the time she made the allegations, which was three years before the trial. See OEC 806 (authorizing impeachment of hearsay declarants).

Relying on State v. Maxwell, 172 Or App 142, 18 P3d 438, rev den, 332 Or 559 (2001), the Court of Appeals affirmed the trial court's exclusion of the witnesses’ testimony about A's character at the time of trial. Solano, 332 Or App at 651. In Maxwell, the Court of Appeals ruled that

“[t]he admissibility of evidence of prior character to prove present character depends on whether, in the discretion of the trial court, the contacts on which the opinion is based are frequent enough and recent enough to have probative value to the testimony given in court.”

172 Or App at 154-55 (emphasis in original). Applying Maxwell, the Court of Appeals held that the trial court had not abused its discretion in concluding that the witnesses’ contacts with A were not sufficiently close in time to trial for their opinions regarding A's character to be probative. Solano, 332 Or App at 651.

The Court of Appeals then held that defendant had not preserved his alternative argument that the witnesses’ testimony was admissible to impeach A as a hearsay declarant. Id. at 654. On that point, Judge Págan dissented. Id. at 658. He would have held that defendant had preserved the argument and that the trial court had erred in excluding the witnesses’ testimony regarding A's character for truthfulness at or around the time of her initial allegations against defendant “because it is the recency in relation to the statement being admitted that is important for the fact-finder's consideration[.]” Id. (emphasis in original).

Defendant also assigned error to the trial court's denial of his motion to prohibit the use of the term “disclosure” to refer to A and J's allegations of abuse, relying on Sperou, in which this court held that, in the context of that case, witnesses’ use of the term “victim” to refer to the complainant and others who had accused the defendant of sexual abuse constituted vouching. 365 Or at 132. Defendant argued that “disclosure” has “the connotation of exposing previously hidden but truthful information,” and, therefore, “[t]he jury would understand the use of the word to suggest that there was something factual to divulge and, thus, as a comment on the credibility of the accuser and of what was being revealed.”

The Court of Appeals rejected defendant's argument about the term “disclosure,” reasoning that “[t]he term itself does not express that the disclosed information is necessarily true or false. Rather, it suggests that the information was not previously shared.” Solano, 332 Or App at 655. Accordingly, the court “decline[d] to extend [Sperou’s] holding to the term ‘disclosure’ in the context that it is presented to us here.” Id.⁵

On defendant's petition, we allowed review.

II. ANALYSIS

On review, defendant renews his challenges to the trial court's ruling that he had failed to lay a foundation for his witnesses’ testimony about A's character for untruthfulness and its ruling denying his pretrial motion to preclude the use of the term “disclosure” to refer to the allegations against him. We address those rulings in turn.

A. OEC 608(1) Evidence

1. Parties’ arguments

Defendant argues that, in excluding his witnesses’ testimony about A's character for untruthfulness, the trial court applied “the incorrect foundational test under OEC 608(1)[.]” He contends that the trial court should have applied the foundation requirements for lay opinion evidence under OEC 701, which are that the evidence must be “(1) [r]ationally based on the perception of the witness; and (2) [h]elpful to a clear understanding of [the] testimony of the witness or the determination of a fact in issue.” He further contends that the witnesses’ opinions satisfied those requirements because (1) the witnesses had “long and close familial relationships” with A, and (2) A's credibility was “the central issue in the case.” According to defendant, “[t]he three-year lapse in contact went to the weight of their opinions. It was grist for cross-examination, not grounds to exclude their opinions for lack of foundation.”

The state agrees with defendant that, when determining whether a party has laid a foundation for lay opinion evidence about a witness's character for truthfulness, proffered under OEC 608(1), a trial court should apply the two requirements set out in OEC 701. But the state contends that the trial court properly concluded that defendant's witnesses “lacked a current basis for their opinion testimony concerning A's character for truthfulness at the time of trial.” (Emphasis in original.) That is because, according to the state, recent contacts are required.

2. Standard of review

Before analyzing OEC 608(1), we address the standard of review. In the past, this court has made broad statements about how we review evidentiary rulings, including, for example, that “[w]e review the decision to admit or exclude [character] evidence for an abuse of discretion.” State v. Walton, 311 Or 223, 232, 809 P2d 81 (1991); see also State v. Caffee, 116 Or App 23, 27, 840 P2d 720 (1992) (citing Walton when reviewing the exclusion of opinion evidence proffered under OEC 608(1)). But, in State v. Rogers, 330 Or 282, 310-13, 4 P3d 1261 (2000), this court undertook an effort to prescribe, with greater precision, how appellate courts are to review trial court rulings.

We first noted that we had “previously explained that, with respect to many evidentiary decisions, trial courts possess broad discretion, as long as they exercise discretion within the range of legally permissible decisions.” Id. at 310. We then observed that some evidentiary rulings are based on multiple subsidiary determinations, including factual and legal determinations. Id. at 312. We explained that our standard of review varies for different types of determinations. Id. We review factual findings to determine whether they are supported by any evidence in the record. Id. at 313 n 9. We review legal conclusions for legal error and defer to exercises of discretion that are within the range of legally permissible outcomes:

“[W]e first must review evidentiary rulings without deference to determine whether proper principles of law were applied correctly. Next, and also without deference, we must determine whether application of those principles leads to only one correct outcome. If there is only one legally correct outcome, and the trial court arrived at that outcome, it did not err; conversely, if the trial court arrived at a different outcome, it did err. Only if we determine that the application of the correct legal principles leads to more than one correct outcome do we continue to review whether the trial court abused its discretion in choosing an outcome. If the trial court's decision was within the range of legally correct discretionary choices and produced a permissible, legally correct outcome, the trial court did not abuse its discretion.”

Id. at 312. Consequently, review of a trial court's ruling regarding the admission of evidence may require application of multiple standards of review, depending on the types of determinations that the trial court had to make. Id.

We noted that such an approach is clearer than reviewing all evidentiary decisions for abuse of discretion and treating legal errors as abuses of discretion. Id. at 312 n 8. We explained:

“To say that a trial court necessarily abuses its discretion if it applies the wrong principle of law or incorrectly applies the correct rule of law leads to the same result. However, the formulation that we have set out is more straightforward and correctly distinguishes that we do not defer to trial courts’ legal determinations. To say that an appellate court should review the legal aspects of an evidentiary ruling for abuse of discretion and that a trial court abuses its discretion if it makes a legal error unnecessarily complicates a simple principle, i.e., that appellate courts review questions of law anew without deference to the decisions of trial courts.”

Id.

Thus, under Oregon law, when reviewing a trial court's evidentiary ruling, we must first identify and classify the determinations underlying the ruling. If a determination is a factual finding, our task is to determine whether it is supported by any evidence in the record. Id. at 313 n 9. If it is a determination about what legal principles apply or how those principles should be applied, we review it for errors of law. Id. at 312. If the legal principles were correctly identified and correctly applied, we then determine whether application of the principles leads to only one correct outcome. Id. If it does, then we determine whether the trial court reached that outcome. Id. But if it does not, we determine whether the trial court's outcome was within the range of permissible outcomes. Id.⁶

In keeping with that approach, when determining whether we review a legal ruling for errors of law or abuse of discretion, we have looked to whether the proper principles of law were applied. For example, in Rogers, we held that the trial court had erred in ruling that an expert was not qualified to testify about a particular matter because he lacked a medical degree. Id. at 316-17. We ruled that “we do not assume a disqualification from the lack of a particular educational or professional degree.” Id. at 316. Instead, proper application of OEC 702, which governs expert testimony, “requires assessment of the particular qualifications of each witness.” Id.

If the proper principles of law were applied, we have looked to whether their application leads to only one correct outcome. We have held, for example, that whether evidence is relevant, whether a hearsay statement qualifies as an excited utterance, and whether a party presented sufficient evidence from which a jury could find a fact, are questions for which there is only one correct answer and, therefore, we review rulings on those questions for errors of law. See State v. Titus, 328 Or 475, 481, 982 P2d 1133 (1999) (concluding that a determination of relevance under OEC 401 “can yield only one correct answer; evidence is either relevant or it is not”); State v. Cunningham, 337 Or 528, 538, 99 P3d 271 (2004) (concluding that “a statement is either an excited utterance under OEC 803(2) or it is not”); State v. Blue, 374 Or 439, 457, 580 P3d 826 (2025) (concluding that “whether a party has raised a ‘genuine question * * * as to the authenticity of the original’ under OEC 1003(1) is a question that we review for legal error, because there is only one correct answer: either the opponent pointed to evidence sufficient to permit a reasonable juror to find that the original is not what the proponent claims it to be, or there is no evidentiary basis for the jury to find that the original is inauthentic”).

Here, defendant argues that the trial court did not apply the correct foundational test for OEC 608(1) evidence. In other words, he argues that the trial court did not apply the correct legal principles when determining whether he had laid a foundation for his OEC 608(1) evidence because it applied a recency requirement. Defendant's argument, and the trial court's ruling, require that we determine the foundation requirements for OEC 608(1) evidence, which is a question of law that we review for errors of law.

3. Foundation requirements for OEC 608(1) evidence

OEC 608(1) authorizes the admission of evidence of a witness's character for truthfulness or untruthfulness. It provides:

“(1) The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but:

“(a) The evidence may refer only to character for truthfulness or untruthfulness; and

“(b) Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.”7

OEC 608(1) is an exception to the general rule that evidence of a person's character may not be used to prove that the person acted in conformity therewith. OEC 404(2) (stating general prohibition and exceptions); OEC 404(2)(c) (establishing exception for character evidence covered by other rules, including OEC 608); OEC 608 Commentary (1981) (noting that OEC 404 “prohibits the admission of character evidence to prove that a person acted in conformity therewith, subject to several exceptions,” including “the admission of character evidence touching a witness's credibility,” and that OEC 608 “develops that exception”). Under OEC 608(1), evidence of a witness's character is limited to opinion or reputation evidence.

Whether a party has laid a foundation for evidence relates to the admissibility of the evidence and, therefore, is a matter for the trial court. See OEC 104(1) (providing that “preliminary questions concerning * * * the admissibility of evidence shall be determined by the court”). The foundation requirement exists to help ensure that evidence presented to factfinders is the type that they could rely on. Accordingly, when determining whether a party has laid a foundation for evidence, the trial court's role is not to determine whether it would rely on the evidence, but rather whether a factfinder could rely on it. That is because, whether a party has laid a foundation for evidence affects whether the evidence can even be presented to the factfinder. Once the evidence is presented, the parties are still able to present other evidence and make arguments about whether the factfinder should rely on the evidence. Thus, when determining whether a party has laid a foundation for evidence, a trial court plays a gatekeeping role; its task is to keep out evidence that a factfinder could not rely on to make the finding that the evidence is being proffered to prove.⁸

OEC 608(1) does not specify what a party must show to lay a foundation for evidence about a witness's character for truthfulness or untruthfulness. But the text, context, and legislative history of the rule provide guidance. See Crimson Trace Corp v. Davis Wright Tremaine LLP, 355 Or 476, 485, 326 P3d 1181 (2014) (when construing the Oregon Evidence Code, which was adopted by the legislature, “our task is to determine what the legislature intended, using our traditional analytical framework, which focuses on the statute's text, context, and any helpful legislative history”).

We begin with the text. By its terms, OEC 608(1) concerns evidence of a witness's “character for truthfulness or untruthfulness.” (Emphasis added.) “ ‘Character’ generally indicates ‘a person's disposition or propensity towards certain behavior, such as honesty,’ * * * or ‘a person's tendency to act in a certain way in all varying situations of life.’ ” State v. Marshall, 312 Or 367, 371-72, 823 P2d 961 (1991) (quoting State v. Carr, 302 Or 20, 25, 725 P2d 1287 (1986)). The fact that “character” refers to a person's disposition or propensity or the person's tendency to act in a certain way indicates that an opinion about a person's character must be based on information sufficient to support an inference about the person's “disposition”—that is, “the inclination, tendency, or power of anything to act in a certain manner under given circumstances,” Webster's Third New Int'l Dictionary 655 (unabridged ed 2002)—or “propensity”—that is, “a natural inclination : innate or inherent tendency,” Webster’s at 1817. Because “character” is intended to capture a trait that continues over time, information about a single instance of conduct may be insufficient to support an inference about a person's character. But it is difficult to generalize about what types of information are sufficient to support an inference about a person's character. As the legislative commentary to the Oregon Evidence Code states, “If character is defined as the kind of person one is, then account must be taken of the various ways to develop a picture of character.” OEC 405 Commentary (1981) (so noting in connection with OEC 405, which governs methods of proving character). The nature, frequency, and recency of one person's contacts with another person are all relevant to whether the first person has a sufficient basis to support a reasonable inference about the second person's character. The question in this case is whether recent contacts are required to support such an inference.

The text of OEC 608(1) does not require recent contacts. It does not limit character evidence about a witness's truthfulness or untruthfulness to evidence based on events within a certain number of years, even though the legislature knows how to limit evidence in that way. See OEC 609 (authorizing impeachment of a witness through evidence of certain criminal convictions, provided that the conviction or release from confinement occurred within the preceding 15 years).

The commentary to OEC 608(1) makes clear that the scope of the rule is narrow. The commentary states that “inquiry is limited to character for veracity rather than character generally. The result is to sharpen relevancy and reduce surprise, waste of time and confusion.” OEC 608 Commentary (1981). Thus, the commentary reflects the legislature's belief that evidence of a witness's character for truthfulness or untruthfulness is relevant and that it can be introduced in the form of opinion or reputation testimony—which will likely be brief—without interfering with the fairness or efficiency of a trial.

The commentary also states that OEC 608 is based on Federal Rule of Evidence 608 (FRE 608). Id. Prior to the enactment of FRE 608, evidence of a witness's character for truthfulness or untruthfulness had to be presented in the form of reputation evidence. FRE 608 expanded the permissible forms of evidence about a witness's character for truthfulness or untruthfulness to include opinion evidence. Regarding the foundation requirements for opinion evidence proffered under FRE 608, a leading treatise explained that FRE 608 does not require proof of frequent or recent contacts as a precondition to the admission of the evidence:

“Witnesses may now be asked directly to state their opinion of the principal witness’ character for truthfulness and they may answer for example, ‘I think X is a liar.’ The rule imposes no prerequisite conditioned upon long acquaintance or recent information about the witness; cross-examination can be expected to expose defects of lack of familiarity and to reveal reliance on isolated or irrelevant instances of misconduct or the existence of feelings of personal hostility towards the principal witness.”

3 Weinstein's Evidence ¶ 608[04], at 608-20 (1978) (emphasis added), quoted in United States v. Lollar, 606 F2d 587, 589 (5th Cir 1979). To be clear, the treatise was not saying that the frequency or recency of contacts is irrelevant. It was simply saying that neither frequent nor recent contacts are required for admission. In doing so, it was recognizing that opinions about a person's character can be based on different types of contacts. A person may have had frequent contact with a witness years ago, but those contacts may still be sufficient to support a reasonable inference about the witness's character. That is because a person's character tends to endure over time; it is a longer-term attribute. As another court has observed, “honesty is more like climate than like weather: it is a stable attribute even though subject to daily variations.” State v. Tedder, 403 F3d 836, 839 (7th Cir 2005). Thus, if a person has an opinion about a witness's character for truthfulness or untruthfulness based on close and frequent contacts years before the witness testifies at trial, that opinion may be admissible to prove the witness's character at the time of trial. See id. (affirming trial court's admission, under FRE 608(a), of the defendant's brothers’ testimony that they had a low opinion of the defendant's honesty, even though the brothers had not had contact with the defendant for more than a decade, reasoning that “[t]he long break in family relations was a subject for cross-examination and argument by counsel”); see also OEC 609 (authorizing impeachment of a witness based on certain convictions after the passage of up to 15 years from the conviction or release from confinement, whichever is later).

The fact that the Oregon legislature based OEC 608 on FRE 608 indicates that the legislature did not intend to condition the admission of opinion evidence on frequent or recent contacts, but instead intended to allow trial courts to determine, on a case-by-case basis, whether a person's contacts with a witness provide a rational basis for the person's opinion about the witness's credibility.

That understanding is further supported by OEC 701, which governs lay opinion testimony in general. See PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993) (stating that the context of a statute includes related statutes); see also State v. Lawson/James, 352 Or 724, 751, 291 P3d 673 (2012) (stating that the rules of evidence “articulate minimum standards of reliability intended to apply broadly to many types of evidence” and applying several rules to the admission of eyewitness identifications, including OEC 602, OEC 701, and OEC 403).

As relevant here, OEC 608(1) authorizes the admission of opinion evidence about a witness's character for truthfulness or untruthfulness, and opinion evidence is governed by two other rules: OEC 701, which applies to lay opinion evidence, and OEC 702, which applies to expert opinion testimony. Because this case concerns lay opinion evidence, we look to OEC 701, which sets out foundation requirements for such evidence. See Lawson/James, 352 Or at 753-56 (explaining that an eyewitness identification “can be a kind of lay opinion testimony” and is subject to the foundation requirements set out in OEC 701).

OEC 701 provides:

“If the witness is not testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to those opinions or inferences which are:

“(1) Rationally based on the perception of the witness; and

“(2) Helpful to a clear understanding of [the] testimony of the witness or the determination of a fact in issue.”

OEC 701 “provides a liberal standard for the admissibility of lay opinion.” State v. Davis, 351 Or 35, 54, 261 P3d 1197 (2011) (internal quotation marks omitted).

The first requirement for a lay opinion is that it be “[r]ationally based on the perceptions of the witness.” OEC 701(1). That requirement has two components. Davis, 351 Or at 54. First, the opinion must be based on the witness's own perceptions. That component is related to the requirement, set out in OEC 602, that lay witnesses have personal knowledge of the matters to which they testify.⁹ Thus, to provide an opinion, a lay witness must have personal knowledge of—that is, must have perceived—the facts on which the opinion is based. Second, the opinion must be “rationally based” on those perceived facts. “The rational connection requirement means only that the opinion or inference advanced by the witness is one which a normal person could form on the basis of the observed facts.” Davis, 351 Or at 55; see also Laird C. Kirkpatrick, Oregon Evidence § 701.03[1], Art VII, 617 (7th ed 2025) (the requirement “means that the opinion must be one that a person could reasonably deduce from the perceived facts”). The opinion or inference “need not be the necessary or even the most probable one.” Davis, 351 Or at 59.

The second requirement for lay opinion evidence is that the opinion be “helpful” to either a “clear understanding of [the] testimony of the witness” or “the determination of a fact in issue.” OEC 701(2). This court has not explained the meaning of “helpful” in OEC 701, but we have held that lay opinion evidence was helpful when it was relevant to a fact at issue in a case. See Davis, 351 Or at 57 (holding that lay witness opinion testimony regarding the victim's appearance was helpful because it increased the probability of a fact at issue); see also id. at 55 (stating that “ ‘[t]he concept of “helpfulness” in OEC 701 subsumes a relevancy analysis’ ” (quoting State v. Wright, 323 Or 8, 17, 913 P2d 321 (1996)). We have also indicated that lay opinion evidence may not be “helpful” for OEC 701 purposes if the jury is “equally capable of making the same inference.” Lawson/James, 352 Or at 756.¹⁰

This court has applied OEC 701 in several cases, including State v. Lerch, 296 Or 377, 385, 677 P2d 678 (1984); Davis, 351 Or at 54; and Lawson/James, 352 Or at 754. Our applications of the rule shed additional light on the rule's requirements for lay opinion testimony.

In Lerch, this court affirmed the admission of a police officer's testimony that a stain on the defendant's kitchen floor was blood. 296 Or at 384-85. The officer was testifying as a lay witness, and we held that the officer's opinion was “ ‘rationally based’ upon the mere fact that he was a human being of the age of reason who could see.” Id. at 384. He was merely giving a “shorthand description” of what he saw. Id. We further held that the officer's opinion was helpful because it would aid the jury in determining whether, as the state alleged, the defendant had killed the victim in his kitchen. Id.

In Lerch, this court also affirmed the admission of a witness's testimony that he had smelled the odor of decomposing human flesh coming from a dumpster. Id. at 385-87. As a basis for his opinion regarding the smell, the witness had testified that he had served in an infantry unit 30 years earlier, during which time he had seen and smelled decomposing human bodies. Id. at 385-86. This court held that the witness's testimony was “rationally based upon his perception in that he had previously experienced and recognized the smell of decomposing human flesh.” Id. at 387. We acknowledged that the defendant had argued that there were several reasons to doubt the witness's opinion, but we concluded that those reasons went to “the weight and not the admissibility of the opinion.” Id. In other words, the reasons could be considered by the factfinder when determining whether to credit the opinion.¹¹ We further held that the testimony was helpful to the determination of a fact at issue, specifically, whether the defendant had put the victim's body in the dumpster. Id.

In Davis, the defendant was charged with crimes based on his young daughter's death from a brain hemorrhage and sought to present the testimony of a witness, Payne, whose own daughter had had a brain injury. Payne was prepared to testify that, days before the victim was in the defendant's care, the victim looked like Payne's daughter had looked when she “had pressure on the brain or else she was dehydrated.” Davis, 351 Or at 49. The trial court excluded the evidence, and this court held that the trial court had erred. Id. at 59. As to the first OEC 701 requirement, we held that Payne's opinion was “rationally based on her perceptions, in that she had a lifetime of previous experience with her own child suffering those conditions.” Id. at 57. As to the second OEC 701 requirement, we held that Payne's testimony was helpful because it was relevant to a fact at issue in the case. Id. at 59. We explained:

“The state's experts testified that the fatal injuries had to have been inflicted on the night of [the victim's] death [June 29]. Payne's testimony that, on June 25, the victim resembled her child when her child displayed the effects of a brain injury or was dehydrated was relevant. It increased the probability, even if only slightly, that the defense experts were correct and the state's experts incorrect.”

Id.

In Lawson/James, this court undertook the task of establishing a process for determining the admissibility of eyewitness identifications. We explained that, because a statement of identification can be “a kind of lay opinion testimony that is based on a number of inferences and assumptions made by the witness regarding his or her perceptions,” courts determining whether such statements are admissible must apply the requirements set out in OEC 701 for lay opinion evidence. 352 Or at 753-56. Regarding the helpfulness requirement, we anticipated that, given the likely relevance of eyewitness identifications to a fact at issue in a case, the requirement would be “easily satisfied in nearly all cases[.]” Id. at 756. But we identified a hypothetical situation where it might not be:

“Consider, for example, the witness who observes a masked perpetrator with prominently scarred or tattooed hands. Although those features could be distinctive enough to provide a rational basis for an inference of identification, a jury may be equally capable of making the same inference by comparing the witness's description of those markings to objective evidence of the actual markings on the defendant. In such cases, the witness's opinion that defendant is the perpetrator provides the jury with little, if any, additional useful information. OEC 701 permits lay opinion testimony to be admitted only when the opinion communicates more to the jury than the sum of the witness's describable perceptions.”

Id. at 756 (emphases added).

What our cases applying OEC 701 show is that opinions can be rationally based on distant experiences; that challenges to opinion evidence can be made on cross-examination; that, to be helpful, opinion evidence must be relevant to a fact at issue and must do more than state an inference that the jury is equally capable of making; and that some types of opinions, if founded, will almost always meet the helpfulness requirement. See Lerch, 296 Or at 387 (affirming admission of a witness's opinions about a smell based on experiences 30 years earlier); id. (noting that the defendant's points about why a witness's opinion was not credible went to the weight of the evidence, not its admissibility); id. at 384 (concluding that a witness's opinion about a stain was helpful because it related to a fact at issue in the case); id. at 387 (concluding same as to a different witness's opinion about a smell); see also Davis, 351 Or at 59 (concluding that an opinion was helpful because it increased, even if slightly, the probability of a fact at issue); Lawson/ James, 352 Or at 756 (indicating that opinion evidence is not helpful when a jury is equally capable of making the same inference); id. (anticipating that founded eyewitness identifications will be helpful in nearly all cases).

This court has not yet addressed whether lay opinion evidence proffered under OEC 608 is subject to the foundation requirements under OEC 701, which governs lay opinion evidence in general. But, based on our review of the relevant rules of evidence, we conclude that it is. As discussed above, OEC 608 does not set out foundation requirements for opinion evidence, but OEC 701 does. The rules work together. OEC 608(1) authorizes the use of opinion evidence for a particular purpose, and OEC 701 sets out foundation requirements for lay opinion evidence. In addition, the legislative history of OEC 608, which shows that it is based on FRE 608, indicates that the legislature did not intend to impose specific prerequisites—like frequent or recent contacts—on the admission of opinion evidence. Instead, it indicates that the legislature intended to require that the opinion have a rational basis, which is consistent with the foundation requirements under OEC 701. And the legislative history also indicates that the legislature believed that the strength of the basis for the opinion could be tested on cross-examination, as is the case for opinion evidence under OEC 701.¹²

In this case, the trial court applied what it understood to be a requirement of recent contacts. It ruled that, although defendant's witnesses had had frequent contact with A for most of A's life, they could not testify to their opinions about A's character for untruthfulness because they had had little to no contact with her during the three years before trial. The Court of Appeals affirmed the trial court's ruling, relying on Maxwell. Solano, 332 Or at 651 (citing Maxwell, 172 Or App at 154-55). In Maxwell, the Court of Appeals relied on an earlier case, Caffee, 116 Or App at 27, in which it first addressed the foundation requirements for OEC 608(1) evidence.

In Caffee, the defendant sought to call his daughter as a witness to testify about her opinion regarding the complainant's character for untruthfulness. Id. at 26. The daughter had known the complainant since childhood, but “she had very little recent personal contact with [the complainant] or other people associated with her. Instead, she based her opinion on letters that she had received from [the complainant].” Id. at 27. The state objected to the evidence, asserting that the defendant had failed to lay a foundation for it, and the trial court sustained the objection. Id. at 26-27.

The defendant appealed. To determine the foundation requirements for OEC 608(1) evidence, the Court of Appeals looked only to a treatise, Kirkpatrick's Oregon Evidence, quoting it for the proposition that

“ ‘[a] character witness, whether testifying in the form of reputation or opinion, will not be allowed to testify until a foundation has been laid showing that the witness has sufficient acquaintance with the reputation of the person in the relevant community or sufficient personal contact with the individual to have formed a personal opinion. The contact must have been sufficiently recent so that there will be a current basis for the testimony.’ ”

Id. at 27 (quoting Laird C. Kirkpatrick, Oregon Evidence § 608, 345 (2d ed 1989) (emphasis added)). It then noted that the trial court had determined that the defendant's daughter “did not have recent contacts with [the complainant] sufficient to make her able to offer an opinion regarding her truthfulness” and summarily concluded that the defendant had not demonstrated “that the trial court abused its discretion in excluding [the daughter's] testimony.” Id.

The Court of Appeals did not look to the text, context, or legislative history of OEC 608, as we have here. It did not take into account that OEC 608 was based on FRE 608, which, as Weinstein had explained, did not condition admission of opinion evidence upon “long acquaintance or recent information.” 3 Weinstein's Evidence ¶ 608(04) at 608-20, quoted in Lollar, 606 F2d at 589.

In cases decided after Caffee, the Court of Appeals has treated Caffee as establishing a “recency requirement” for OEC 608(1) evidence. In Maxwell, the Court of Appeals ruled that, under Caffee, the admissibility of opinion evidence proffered under OEC 608(1) depends on whether the evidence is based on contacts that are “frequent enough and recent enough to have probative value to the testimony given in court.” 172 Or App at 154-55 (emphasis in original). See also State v. Paniagua, 268 Or App 284, 290, 341 P3d 906 (2014) (quoting Laird C. Kirkpatrick, Oregon Evidence § 608.03, 511 (6th ed 2013), and citing Caffee and Maxwell).

We agree with the Court of Appeals that, in order to lay a foundation for opinion evidence proffered under OEC 608(1), the proponent of the evidence must show that it has probative value. It must be evidence that the jury could credit; that is, it must be evidence that the jury could rely on to find the fact that it is proffered to prove. But, for the reasons explained above, an opinion about a person's character can have probative value even if it is not based on recent contacts. A lay witness's opinion has probative value if it is rationally based on the witness's perceptions. See OEC 701 (requiring such a basis, as well as that the opinion be helpful). Thus, to lay a foundation for a lay witness's opinion about another witness's character for truthfulness or untruthfulness, a party must show that the opinion is rationally based on the witnesses’ contacts with each other and that it is helpful.

A witness's opinion about another witness's character is similar to an inference, and an inference can be rationally based on a person's observations even if it is not the only inference that could be drawn from those observations. Therefore, when determining whether a party has laid a foundation for lay witness opinion evidence proffered under OEC 608(1), a trial court is not to determine whether it would draw the same inference as the witness has, nor whether the factfinder should draw the same inference. It is only to determine whether the inference is rationally based on the witness's observations. If it is, and if it is not subject to exclusion based on any other rule of evidence, then it is admissible, and the parties can litigate whether the factfinder should credit it.¹³

As mentioned, the trial court in this case excluded defendant's proffered OEC 608(1) evidence on the ground that defendant had failed to satisfy the “rule about recency.” In doing so, the trial court treated recent contacts as a requirement for admission. Because we have concluded that, although recent contacts are relevant, they are not required, the trial court erred; it failed to apply the correct legal principles when determining whether defendant had laid a foundation for the evidence. See Rogers, 330 Or at 312 (explaining that the failure to apply correct legal principles constitutes legal error).

The error was not harmless. See State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (to determine whether a trial court error was harmless, an appellate court asks “whether there was little likelihood that the error affected the jury's verdict”). Here, had the trial court applied the correct legal test, it could have admitted the evidence, which related to the central issue in the case. As the prosecutor told the jury in his closing argument, the case turned on whether the jurors believed A's allegations. The charged crimes were alleged to have occurred during a family sleepover when both defendant and A were children, and neither A nor her sister, J, reported anything unusual on the night of the sleepover or for the next 10 years. At trial, defendant denied the abuse. J and defendant's brother also testified, and they did not report any wrongdoing by defendant during the sleepover. The witnesses were close family members who had known A most of her life and had had frequent contact with her over the course of many years. We cannot say that the trial court's exclusion of their testimony was harmless. Therefore, we reverse the part of the Court of Appeals’ decision that relates to defendant's OEC 608(1) evidence, reverse the trial court judgment, and remand this case to the trial court for further proceedings. See State v. Hightower, 368 Or 378, 385, 491 P3d 769 (2021) (describing appellate court dispositions); State v. Tena, 362 Or 514, 525-26, 412 P3d 175 (2018) (reversing and remanding based on evidentiary error, noting that the trial court could consider different arguments regarding the admissibility of the evidence on remand); State v. Mazziotti, 361 Or 370, 376, 393 P3d 235 (2017) (same).

Although we are remanding this case to the trial court, we also address defendant's challenge to the trial court's denial of his pretrial motion to preclude use of the term “disclosure” to refer to A and J's allegations, because that issue may arise again on remand.

B. Use of the Term “Disclosure”

1. Parties’ arguments

On review, defendant again argues that the term “disclosure” has the “connotation of exposing previously hidden but truthful information” and that a jury “would understand the use of the word to suggest that there was something factual to divulge and, thus, as a comment on the credibility of the accuser and of what was being revealed.” Defendant further argues that the trial court's erroneous denial of the motion was not harmless. He points out that both the prosecutor and the forensic interviewer used the term.

In response, the state argues that “the ordinary meaning of the word ‘disclosure’ does not suggest that the statements made are necessarily true.” In addition, the state argues that, even if the trial court erred in denying defendant's motion, the error was harmless, given that the term “disclosure” was used only a few times during the trial and primarily by the prosecutor.

2. Standard of review

When reviewing a ruling on a pretrial motion, an appellate court is “limited to the record as it had developed at the time of the ruling; we do not evaluate a court's pretrial decision with the benefit of hindsight by, for example, taking into account what happened at trial.” Sperou, 365 Or at 137. Consequently, the question before us is whether the trial court erred in denying defendant's pretrial motion based on the record that existed at the time the trial court ruled, which depends on whether, as defendant contended, use of the term “disclosure” would constitute vouching. Whether a statement constitutes vouching is a question of law, which we review for errors of law. Id. at 139.

3. Vouching analysis

Under Oregon law, a witness may not comment on the credibility of another witness's pretrial or trial statements. State v. Black, 364 Or 579, 581, 437 P3d 1121 (2019). That prohibition, known as the “vouching rule,” is a “judicially created rule of evidence” that serves to ensure that the jury remains the sole arbiter of the credibility of a witness's statements. Sperou, 365 Or at 128 (citing State v. Chandler, 360 Or 323, 330-31, 380 P3d 932 (2016)). As such, it is complemented and supported by OEC 608, which permits a party to attack or support a witness's credibility, but only through reputation or opinion evidence about the witness's character for truthfulness or untruthfulness. See State v. Brown, 297 Or 404, 443, 687 P2d 751 (1984) (so stating); id. at 442 (the vouching rule prohibits a witness from “pass[ing] upon the credibility of another witness in respect to specific conduct”).

The vouching rule applies to direct comments about the credibility of a witness's statement, as well as comments that are “tantamount” to such direct comments, including those that are “commonly understood ways of signaling a declarant's belief that a witness is telling the truth.” State v. Beauvais, 357 Or 524, 543, 354 P3d 680 (2015); see, e.g., State v. Keller, 315 Or 273, 285, 844 P2d 195 (1993) (expert's testimony that there was no indication that the witness had been “coached” or “led” when she made allegations against the defendant constituted vouching); State v. Milbradt, 305 Or 621, 629-30, 756 P2d 620 (1988) (expert's testimony that a witness is not deceptive, could not lie without getting tripped up, and would not betray a friend was tantamount to saying that the expert believed the witness's statements). Whether testimony violates the vouching rule depends on “whether it conveys one witness's opinion of the truthfulness” of another witness's statements. Black, 364 Or at 588.

Not all vouching takes the form of a statement about whether another witness's statement is true. Sperou, 365 Or at 128. “Some vouching is subtler, and certain statements might be vouching in some contexts but not others.” Id.

A single-word description can constitute vouching. In Sperou, this court ruled that witnesses’ “use of the term ‘victim’ to refer to the complaining witness or other witnesses, in circumstances where the accusers’ own testimony is the only evidence that the alleged criminal conduct occurred, conveys the speaker's belief that the accusers are credible.” Id. at 132. We observed that other courts had reached the same conclusion in analogous circumstances, stating, among other explanations, that “ ‘the term “victim” is conclusive in nature and connotes a predetermination that the person referred to had in fact been wronged.’ ” Id. (quoting State v. Nomura, 79 Haw 413, 416, 903 P2d 718, 721 (Haw Ct App 1995)). Consequently, we concluded that “where (as here) it is virtually impossible for a witness's use of the term to serve a legitimate, nonvouching purpose, any use of the term is categorically inadmissible.” Id. at 139. Applying that rule, we held that the trial court had erred in denying the defendant's motion to preclude witnesses from using the term to refer to the complainant or the other witnesses who had accused defendant of sexual abuse. Id. at 140.

Like witnesses, lawyers are prohibited from offering their personal opinions about a witness's credibility. Id. at 129 (citing, inter alia, State v. Parker, 235 Or 366, 377, 384 P2d 986 (1963) (“It is improper for counsel to interject his personal appraisal of the witness's credibility in a way which would suggest to the jury that the appraisal is based upon counsel's own knowledge of facts not introduced into evidence.”), and former DR 7-106(C)(4) (2003) (“In appearing in the lawyer's professional capacity before a tribunal, a lawyer shall not * * * [a]ssert the lawyer's personal opinion * * * as to the credibility of a witness.”)). The prohibition is similar to the “vouching rule,” but unlike that rule,

“it is not a rule of evidence. The rationale for the principle is that counsel's credibility opinions are not evidence and are sometimes based on facts not in evidence—thus, they tend to distract the jury from its duty to base its verdict on the evidence at trial.”

Sperou, 365 Or at 129 (emphasis in original). And “although a prosecutor's comments regarding witness credibility may present problems similar to those underlying the evidentiary rule against ‘vouching’ testimony, it is also true that prosecutors, as advocates for the state's cause, have wide latitude to make arguments from the evidence.” Id. at 130 (emphasis in original).

As mentioned, in Sperou, this court held that the trial court had erred by denying the defendant's motion to prohibit the use of the term “victim” by witnesses. Id. at 139. But we reached a different conclusion as to the use of the term by the prosecutor. Id. at 138. We explained that “a prosecutor is expected to be a zealous advocate for the public, and, accordingly, prosecutors have a large degree of freedom to comment on the evidence submitted and urge the jury to draw any and all legitimate inferences from that evidence.” Id. at 135 (internal quotation marks and citation omitted). Therefore, although a prosecutor may not express a personal opinion about a witness's credibility, a prosecutor may argue that “the jury should regard a witness as credible (or not) based on, for instance, the witness's demeanor and testimony.” Id. (emphasis in original). Consequently, we concluded that,

“[i]n light of a prosecutor's dual responsibilities to refrain from inflammatory remarks and personal commentary, on the one hand, but to be an advocate for the state's cause, on the other, it is difficult to state a categorical rule regarding a prosecutor's use of the term ‘victim’ to describe a complaining witness where victimhood is disputed.”

Id. “Ultimately, the propriety of a prosecutor's use of the term ‘victim’ will depend on the context in which the word is used.” Id. at 137. Applying that understanding, we held that, because the defendant's motion to preclude the use of the term “victim” was categorical, the trial court was not required to grant it as to the prosecutor. Id. at 137-38.¹⁴

Relying on Sperou, defendant argues that the trial court erred in denying his motion to preclude the use of the term “disclosure” to refer to A and J's allegations of sexual abuse. The premise of defendant's argument is that, in a case like this, where the complainant's allegations are the only evidence of the charged sexual abuse, use of the term “disclosure” conveys that the person using the term believes that the “disclosure” is true. He argues that

“[l]abeling a statement as a ‘disclosure’ conveys that the statement or testimony is not just an assertion of the speaker's opinion, or of what the speaker claims to be true. Rather, labeling it a ‘disclosure’ conveys that the statement or testimony reveals fact, that what the speaker says is true. Because the term ‘disclosure’ implies that the statements are true, use of the term ‘disclosure,’ like ‘victim,’ acts as an impermissible comment on the accuser's credibility, undermines the presumption of innocence, and deprives a defendant of a fair trial.”

The state's opposing position is that

“the ordinary meaning of the word ‘disclosure’ does not suggest that the statements made are necessarily true, and the use of the word at trial is not a comment on the veracity or credibility of another witness's statements. Accordingly, the use of the word does not constitute vouching.”

As relevant here, the noun “disclosure” is defined as “something that is disclosed : revelation, divulgation.” Webster's at 645. In turn, the verb “disclose” is defined as “2 a : to expose to view * * * : to lay open or uncover (something hidden from view) * * * b : to make known : open up to general knowledge * * * esp : to reveal in words (something that is secret or not generally known) : divulge.” Id. In connection with verbal statements—which A's allegations were—the most fitting of those definitions is “to reveal in words.” The synonym to that meaning is “divulge,” which is defined to mean “to tell or make known (a secret or confidence or what had been previously unknown).” Webster's at 664. Thus, a “disclosure” can be something that is told or made known, especially something that had been previously unknown. A person may describe another witness's statement as a “disclosure” to convey that the statement is a new assertion or an assertion about a subject that was secret or not generally known. Therefore, use of the term “disclosure” does not necessarily convey that the person using the term believes that the “disclosure” is true. A person may use the term “disclosure” to convey the newness or subject of a statement, not its truth.

The term “disclosure” differs from the term “victim.” A person is a “victim” only if the person has been wronged. Consequently, when a witness describes a complainant as a “victim” and the complainant's own statements are the only evidence that the complainant has been wronged, the witness's use of the term “victim” conveys that the witness believes the complainant's statements. Sperou, 365 Or at 132 (quoting Nomura, 79 Haw at 416, 903 P2d at 721 (the term “victim” “connotes a predetermination that the person referred to had in fact been wronged”)). But a statement can be a “disclosure” even if it is not true. Therefore, the fact that a person uses the term “disclosure” to describe a complainant's statement does not necessarily mean that the person believes that the statement is true.

Indeed, in this case, defense counsel himself used the term “disclosure” to describe the complainant's allegations against defendant. He asserted that A and J “made disclosures” so that they could receive visas available to crime victims. Obviously, given that the defense was that those “disclosures” were false, defense counsel was not using the term to convey that they were true.

Defense counsel's use of the term “disclosure” was not unusual. This court has used the term in connection with statements that are false or inaccurate. For example, we have referred to “false disclosures of sexual abuse.” Gorham v. Thompson, 332 Or 560, 563, 34 P3d 161 (2001) (stating that the defendant wanted to call an expert to testify that certain interviewing tactics “can lead children to make false disclosures of sexual abuse” (emphasis added)). We have also described a statement as an “inaccurate disclosure.” In re Fulop, 297 Or 354, 358, 685 P2d 414 (1984) (explaining that it appeared from the record “that no partnership ever existed and that the inaccurate disclosure * * * was made in view of a prospective partnership that never came to pass” (emphasis added)). In addition, in many contexts, the law requires persons to make disclosures, and those disclosures are not always truthful. See, e.g., In re Cobb, 345 Or 106, 108, 190 P3d 1217 (2008) (referring to a “false financial disclosure statement”).

Given that the term “disclosure” can be used to describe a statement that is a new assertion or an assertion about a subject that was not generally known, without vouching for the veracity of the assertion, and that the term can be used to refer to a false or inaccurate statement, we conclude that a person's use of the term to refer to a statement does not necessarily convey that the person believes the statement is true. Therefore, its use does not necessarily violate the rules that bar witnesses and lawyers from commenting on the credibility of witness statements, and the trial court did not err in rejecting defendant's argument to the contrary. The trial court was not required to grant the defendant's broad, pretrial motion to bar the term's use.¹⁵

III. CONCLUSION

In sum, as to the first question presented, we hold that the trial court erred by imposing a recency requirement when ruling that defendant had failed to lay a foundation for his witnesses’ testimony about A's character for untruthfulness, which he proffered under OEC 608(1). We further hold that the trial court's error was not harmless, and, therefore, we must remand this case to the trial court for further proceedings. As to the second question presented, we hold that the trial court did not err in denying defendant's pretrial motion for a categorical bar on the use of the term “disclosure” because, contrary to defendant's argument, use of the term does not necessarily constitute vouching.

The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings..

FOOTNOTES

1.   In his petition, defendant challenged the two trial court rulings described above, as well as the trial court's admission of A's hearsay statements under OEC 803(18a)(b), which establishes an exception for certain statements by child declarants. Defendant had objected to the admission of the hearsay statements, arguing that the OEC 803(18a)(b) exception applies only when the declarant is a child at the time of trial, which A was not. Defendant renewed that argument in both the Court of Appeals and this court. But, after defendant filed his brief in this court, we decided State v. Akins, 373 Or 476, 568 P3d 174 (2025), in which we held that the exception applies even if the declarant is no longer a child at the time of trial. Given Akins, we reject defendant's challenge to the admission of A's hearsay statements without further discussio

2.   Although A had reported that Octavio had sexually touched her, the state did not charge him with any crimes against her. It charged him only with sexual abuse of J.

3.   Although the brothers’ cases were tried separately, during defendant's trial, the parties and their witnesses referred to the allegations against Octavio because they arose out of the same sleepover and were reported and investigated together.

4.   The state based its argument about the recency requirement on State v. Caffee, 116 Or App 23, 840 P2d 720 (1992), rev den, 315 Or 312 (1993), and its progeny: State v. Maxwell, 172 Or App 142, 18 P3d 438, rev den, 332 Or 559 (2001), and State v. Paniagua, 268 Or App 284, 341 P3d 906 (2014).

5.   The Court of Appeals left open “the possibility that the term ‘disclosure’ may, in some instances, constitute improper vouching.” 332 Or App at 655 n 6.

6.   In this way, the formulation set out in Rogers differs from the approach taken by federal courts, which review evidentiary rulings for abuse of discretion and treat legal errors as abuses of discretion. As we have noted, “federal appellate courts review all evidentiary rulings for abuse of discretion.” State v. Blue, 374 Or 439, 456-57, 580 P3d 826 (2025) (citing General Elec Co v. Joiner, 522 US 136, 141-42, 118 S Ct 512, 139 L Ed 2d 508 (1997) (emphasis in Blue)). But, even under that approach, “an erroneous construction of the law would meet that standard, and no federal court has ever held that a district court's error as to a matter of law is not an abuse of discretion.” Blue, 374 Or at 457 (internal quotation marks omitted). Regardless, “this court is not bound by the standard used to review an evidentiary rule's federal counterpart.” Id.

7.   OEC 608 has two subsections. Only OEC 608(1) is at issue in this case. OEC 608(2) provides:“Specific instances of the conduct of a witness, for the purpose of attacking or supporting the credibility of the witness, other than conviction of crime as provided in [OEC 609], may not be proved by extrinsic evidence. Further, such specific instances of conduct may not, even if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness.”Thus, OEC 608(2) prohibits a party from attacking or supporting the credibility of a witness either by introducing extrinsic evidence of specific instances of the witness's conduct or by cross-examining the witness about such instances.

8.   Even if a party has laid a foundation for evidence, it may still be excluded under other rules of evidence, including OEC 403, which provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed 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.”

9.   OEC 602 provides:“Subject to the provisions of [OEC 703, governing bases of expert opinion testimony], a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness.”

10.   The Court of Appeals has construed the “helpfulness” requirement similarly. See State v. Culver, 345 Or App 146, 151, 582 P3d 206 (2025) (holding that a witness's opinion that the defendant had not acted intentionally was not “helpful” for the purposes of OEC 701 because the witness “had no unique insight into defendant's mental state or whether defendant's conduct was ‘intentional,’ ” as that term is defined by statute, and because “the jury could readily assess defendant's conduct based on eyewitness testimony about the factual circumstances and viewing the video of the incident”).

11.   The reasons included that the witness had not looked in the dumpster or notified anyone after detecting the smell, that his opinion was inconsistent with the probable state of the victim's body according to expert witnesses, that the dumpster was for the witness's fish market and “any smell would have been masked by the smell of rotting fish,” and “the improbability of identifying a smell one hadn't sensed in 30 years.” Lerch, 296 Or at 386.

12.   We note that, when determining whether a party laid a sufficient foundation for the admission of lay opinion evidence under FRE 608, federal courts have applied the FRE 701 requirements. See, e.g., United States v. Blair, 174 F4th 1309, 1319 (11th Cir 2026) (noting that testimony under FRE 608 must “be based on a witness's own perception” in accordance with FRE 701); United States v. McMurray, 20 F3d 831, 834 (8th Cir 1994) (citing FRE 701 and concluding that a witness “had sufficient dealings to provide a rational basis for her opinion as to [the defendant's] truthfulness”); United States v. Cortez, 935 F2d 135, 139 (8th Cir 1991) (noting that opinion testimony under FRE 608 is subject to the requirements of FRE 701); United States v. Dotson, 799 F2d 189, 192 (5th Cir 1986) (noting that FRE 701 limits FRE 608 evidence by requiring that it be based on “firsthand knowledge” and “helpful in resolving issues”).

13.   As noted, even if evidence qualifies for admission under OEC 608(1), it may be subject to exclusion under other rules of evidence, including OEC 403. 375 Or at 594 n 8.

14.   We emphasized that our conclusion was “based on the general and sweeping nature of defendant's pretrial request” and that we did not mean to say “that a motion to restrict a prosecutor's use of the term ‘victim’ can never properly be the subject of pretrial relief.” Sperou, 365 Or at 138. But, we continued,“defendant's pretrial motion failed to appreciate, much less alert the trial court to, the considerations distinguishing a prosecutor's legitimate use of the term ‘victim’ from uses that are improper. As such, the trial court was not required to prohibit the use of a word that, we have explained, may be used appropriately depending on context.”Id.

15.   We emphasize that the issue here is only whether, on the record before it, the trial court was required to grant defendant's pretrial motion to categorically preclude the use of the term “disclosure” to refer to A and J's allegations. It is possible that, if used in a particular way, the term could constitute vouching. But, because defendant's challenge to the term was general, we are not called upon to decide, and do not decide, whether any particular way of using the term constitutes vouching.

DUNCAN, J.