Joshua Daniel Hutchings was convicted after Officer Zachary Smelser testified that he felt Hutchings "was not truthful" during an investigation of an alleged gun threat at an apartment complex parking dispute. Hutchings had argued with victim KC over a blocked car and allegedly brandished a Glock, though he denied pulling the weapon and claimed his guns were locked in a safe. The prosecutor elicited Smelser's credibility assessment on redirect examination without objection from Hutchings' counsel.
Writing for the court, Justice Bushong concluded that the possibility of a strategic choice not to object affects whether to reverse a conviction on plain error review, but doesn't determine whether the error is reviewable as plain error at all. "If there was an error in admitting testimony that is categorically prohibited as vouching, the error was plain regardless of whether defendant chose, for strategic reasons, not to object to that testimony," Bushong wrote. The court assumed without deciding that Smelser's testimony violated the categorical prohibition against vouching.
The court emphasized that trial courts may have an obligation to intervene sua sponte against vouching evidence, noting that "witness vouching in Oregon is considered prejudicial, so much so in fact that it sometimes requires intervention by the trial court even when parties fail to object to it." The court distinguished vouching evidence from other evidentiary errors because the vouching prohibition protects the jury's role in assessing witness credibility and "is not based on OEC 103."
The case reached the Oregon Supreme Court after Hutchings was sentenced to 36 months' probation by Multnomah County Circuit Court Judge Heidi H. Moawad. The Court of Appeals had affirmed, concluding that the vouching testimony was not plain error because the record supported a plausible inference that Hutchings chose not to object for strategic reasons—specifically to cast doubt on the police investigation by suggesting Smelser "had disbelieved defendant from the start."
Hutchings argued that allowing vouching testimony was obvious error apparent from the record, and his conviction should be reversed because "the competing interests of the parties and the gravity of the error favor a reversal." The state countered that the testimony could have been offered for purposes other than expressing a credibility opinion, though it didn't make that argument at the Court of Appeals level.
The court clarified a split in its own precedent regarding when strategic choices factor into plain error analysis. In cases like State v. Gornick involving sentencing errors, strategic choice was considered at step one of determining whether error was "plain." But in State v. Wiltse involving jury instructions, the court held strategic choice only mattered at step two—whether to exercise discretion to reverse. Justice Bushong explained that vouching evidence is more like the Wiltse scenario because trial courts have an independent duty to prevent it.
The Oregon Supreme Court declined to undertake the discretionary analysis itself, instead reviewing the Court of Appeals' decision for abuse of discretion. "The nature of discretion is that it is best exercised by the entity principally charged with its exercise," Bushong wrote, noting that appellate courts should reverse based on plain error only in "rare and exceptional cases." The Court of Appeals had properly exercised "utmost caution" in declining to find this case sufficiently exceptional to warrant reversal despite the error.