OPINION EVIDENCE FROM EXPERTS: RECENT DEVELOPMENTS

Judge Stephen K. Bushong

Multnomah County Circuit Court

August 8, 2016

I. Expert Opinion Evidence--The Basics

A. Applicable rules

OEC 104(1)—“Preliminary questions concerning the qualification of a person to be a

witness, the existence of a privilege or the admissibility of evidence shall be determined

by the court[.]”

OEC 401—“”Relevant evidence’ means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.”

OEC 403—“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.”

OEC 702—“If scientific, technical or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training or education may testify thereto in the

form of an opinion or otherwise.”

B. Applying the rules

“To be admissible, expert testimony must be relevant under OEC 401, must assist

the trier of fact under OEC 702, and must not be subject to exclusion under OEC 403

because its probative value is outweighed by the danger of unfair prejudice.” Blake v.

Cell Tech International, Inc., 228 Or App 388 (2009). See also Marcum v. Adventist

Health System/West, 345 Or 237, 243 (2008); Jennings v. Baxter Healthcare Corp., 331

Or 285, 301 (2000) (same).

In applying these rules, “the court must identify and evaluate the probative value

of the proffered scientific evidence, consider how that evidence might impair rather

than help the trier of fact, and decide whether truthfinding is better served by

admission or exclusion.” Blake, 228 Or App at 400, quoting State v. O’Key, 321 Or 285,

299 (1995). “When ruling on the admissibility of scientific evidence, trial courts function

as ‘gatekeepers,’ screening proffered evidence to determine whether it will legitimately

assist the trier of fact.” Blake, 228 Or App at 400, citing O’Key, 321 Or at 303.

A trial court’s “gatekeeping role is important because of the persuasive power of

scientific evidence[.]” Blake, 228 Or App at 400. “Evidence perceived by lay jurors to be

scientific in nature possesses an unusually high degree of persuasive power. The

function of the court is to ensure that the persuasive appeal is legitimate. The value of

proffered expert scientific testimony critically depends on the scientific validity of the

general propositions utilized by the expert.” O’Key, 321 Or at 291.

The Oregon Supreme Court has identified several factors that should be

considered in determining the admissibility of scientific evidence: “(1) The technique’s

general acceptance in the field; (2) The expert’s qualifications and stature; (3) The use

which has been made of the technique; (4) The potential rate of error; (5) The existence

of specialized literature; (6) The novelty of the invention if one is involved; and (7) The

extent to which the technique relies on the subjective interpretation of the expert.”

Marcum, 345 Or at 244, quoting State v. Brown, 297 Or 404, 417 (1984).

The court added eleven other considerations to that list: “(1) The potential error

rate in using the technique; (2) The existence and maintenance of standards governing

its use; (3) Presence of safeguards in the characteristics of the technique; (4) Analogy to

other scientific techniques whose results are admissible; (5) The extent to which the

technique has been accepted by scientists in the field involved; (6) The nature and

breadth of the inference adduced; (7) The clarity and simplicity with which the

technique can be described and its results explained; (8) The extent to which the basic

data are verifiable by the court and jury; (9) The availability of other experts to test and

evaluate the technique; (1) The probative significance of the evidence in the

circumstances of the case; and (11) The care with which the technique was employed in

the case.” Marcum, 345 Or at 244-45 n 7, quoting Brown, 297 Or at 417-18 n 5.

II. Scientific and Nonscientific Expert Opinions

State v. Rambo, 250 Or App 186 (2012)

The issue in Rambo was whether “the trial court erred in admitting as

nonscientific expert opinion evidence or, alternatively, as lay opinion evidence, a police

officer’s testimony that, in his opinion, defendant had driven her vehicle while under the

influence of a narcotic analgesic.” 250 Or App at 187. Prior case law had established

that (1) the procedure and results of the 12-step Drug Recognition Evaluation (DRE)

protocol established by the National Highway Traffic Safety Administration (NHTSA) “are

admissible as scientific evidence…to show that a defendant was under the influence of a

controlled substance” (Id. at 191, citing State v. Sampson, 167 Or App 489, 512 (2000));

(2) “an incompletely administered DRE protocol is not admissible as scientific evidence”

(Id., citing State v. Aman, 194 Or App 463, 473 (2004)); and (3) “evidence of individual

components of the DRE protocol were not necessarily inadmissible as nonscientific

evidence of the impairment.” Id. Rambo presented “the previously unexamined issue

of whether a police officer’s opinion that a defendant was under the influence of a

controlled substance is admissible where it is based on a foundation that includes

certain evidence that is encompassed in a DRE test, but where evidence of the DRE

protocol itself is inadmissible because the protocol was not completed.” Id. at 191-92.

The Court of Appeals concluded that “the trial court properly admitted the

challenged testimony as nonscientific expert opinion evidence[.]” 250 Or App at 192.

As a result, the court did “not consider whether it qualified for admission as lay opinion

evidence.” Id. The court explained that “[s]pecialized expert opinion evidence based on

a witness’s training and experience draws its force from that training and experience,

but not necessarily from the mantle of science.” Id. at 195. The testifying officer “did

not—apart from his reference to independently admissible scientific tests—rely on the

vocabulary of science, nor did he suggest that his conclusions had been reached through

the application of a scientific method to collected data.” Id. The trial court did not err

in admitting the challenged evidence because the court “scrupulously sanitized the

record of any evidence of a scientifically based protocol, thereby mitigating the risk that

[the officer’s] testimony would be given unfair weight beyond the credentials that he

claimed.” Id.

III. Required Expert Testimony—Standard of Care

Trees v. Ordonez, 250 Or App 229 (2012)

The defendant neurosurgeon in Trees performed surgery to fuse three vertebrae

in plaintiff’s neck. Plaintiff sued for medical malpractice when “she later suffered

adverse medical consequences that required additional surgeries and left her with

permanent disabilities.” 250 Or App at 231. Plaintiff alleged that defendant “breached

the standard of care by failing to properly place and secure the plate used to stabilize

plaintiff’s cervical spine, resulting in plaintiff’s injuries.” Id. Plaintiff’s evidence at trial

“included expert testimony from a biomechanical engineer about the function of the

plate, opining that [defendant’s] installation of the plate was inconsistent with the

manufacturer’s explicit instructions.” Id. The trial court granted defendant’s motion for

directed verdict, concluding that plaintiff “had failed to provide expert testimony that

defendant violated the applicable standard of care.” Id. The Court of Appeals affirmed.

The court explained that the engineer’s testimony “did not provide the jury with legally

sufficient evidence of the care, skill, and diligence that was required of a reasonably

careful practitioner when performing plaintiff’s surgery under these circumstances.” Id.

at 237-38. Such testimony was required, the court explained, because without it, “the

jury could not determine what the standard of care required in terms of using the plates

under the complex medical circumstances presented here[.]” Id. at 240.

IV. Exclusion of Expert Opinion Evidence

A. Witness credibility/failure to assist the jury

State v. Southard, 347 Or 127 (2009)

The question in Southard was “whether a medical diagnosis of child sexual abuse

is admissible scientific evidence.” 347 Or at 129. The Supreme Court, applying the

analysis adopted in State v. O’Key, 321 Or 285 (1995) and State v. Brown, 297 Or 404

(1984), first concluded that “the diagnosis possesses sufficient indicia of scientific

validity to be admissible.” Id. at 139. The court went on to hold that the evidence was

not admissible under OEC 403 absent corroborating physical evidence because the

criteria used to credit the victim’s testimony “are essentially the same criteria that we

expect juries to use every day in courts across this state to decide whether witnesses

are credible.” Id. at 140. As in Brown, (holding that polygraph evidence is inadmissible),

the risk of prejudice was great because a diagnosis “based primarily on an assessment of

the boy’s credibility posed the risk that the jury will not make its own credibility

determination, which it is fully capable of doing, but will instead defer to the expert’s

implicit conclusion that the victim’s reports of abuse are credible.” Id. at 141. Under

those circumstances, “the degree to which the diagnosis advances the jury’s ability to

evaluate the evidence is minimal and…the risk that the jury will defer to the expert’s

assessment outweighs whatever probative value the diagnosis may have.” Id. at 141-42.

B.A. v. Webb, 253 Or App 1 ( 2012)

The Court of Appeals held that Southard applies in a civil case alleging the tort of

sexual battery of a child. The court could “discern no principled reason why the court's

OEC 403 balancing analysis in that criminal case should obtain different results in this

civil case.” 253 Or App at 15. The court held that admission without objection of expert

testimony of a diagnosis of child sex abuse absent physical evidence of abuse was a

comment on the credibility of a witness constituting plain, and not harmless, error. “It is

legally impermissible under Oregon law for a witness to comment on the credibility of

another witness, and, in enforcing that principle, trial courts are obligated, sua sponte,

to exclude and, if necessary, strike testimony that comments on a witness's credibility.”

Id. at 12. Reversed and remanded for a new trial.

B. Scientific basis for causation

Marcum v. Adventist Health System/West, 345 Or 237 (2008)

In Marcum, the Supreme Court addressed the standards for admission of expert

medical testimony in a medical malpractice case. Plaintiff experienced symptoms of

pain, swelling and discoloration immediately after a chemical called “gadolinium” was

injected into her hand. Plaintiff proffered testimony of a medical expert that “the

gadolinium, instead of going into the vein, went into an area of the hand outside the

vein, a circumstance called ‘extravasation.’” 345 Or at 240. The trial court excluded the

testimony because the expert “had failed to identify a scientifically valid cause of the

injury—one that linked plaintiff’s exposure to gadolinium to the vasospastic disorder

that she experienced.” Id. at 242. A divided Court of Appeals affirmed, but the

Supreme Court reversed. The court noted that its prior cases on the trial court’s

“gatekeeper” role “provide limited guidance” because those cases “involved the

admissibility of specific techniques or tests, the validity of which turned on scientific

principles.” Id. at 245 (emphasis in original). In contrast, “the issue [in Marcum] is the

scientific basis for the causation testimony, rather than the scientific basis for a

particular technique or method.” Id. at 246. In many instances, the court noted, a

medical expert cannot identify “with certainty” a single cause, but instead “a number of

potential causes will be ‘ruled in,’ each of which has some percentage of likelihood of

having caused plaintiff’s condition[.]” Id. at 248 (emphasis in original). When “ruling in”

a potential cause, “a trial court should insist that the causation theory be ‘biologically

plausible,’ that is, that the exposure could have caused plaintiff’s injury.” Id. at 249

(emphasis in original). “[A] particular possible cause should not necessarily be excluded

on the grounds that the expert cannot describe the precise mechanism of causation or

point to statistical studies of cause and effect.” Id. The court concluded that the jury

should have been permitted to hear the expert opinion in this case because plaintiff

“made an adequate showing of a scientifically valid basis for ‘ruling in’ gadolinium as a

potential cause of her symptoms as well as for ‘ruling out’ a number of the other

possible causes of her injury.” Id. at 252-53.

C. Scientific validity

Kennedy v. Eden Advanced Pest Technologies, 222 Or App 431 (2008)

The plaintiff in Kennedy hired defendants to apply non-toxic pesticides to his

property after he saw carpenter ants in his yard. Plaintiff experienced nausea and

sleeplessness after the pesticides were applied. Plaintiff later discovered that

defendants applied toxic chemicals after they ran out of the non-toxic product. Plaintiff

sued, alleging fraud, negligence, trespass and other claims. At trial, plaintiff proffered

the testimony of Dr. William Rea, who diagnosed plaintiff with “chemical sensitivity”

and related conditions, and concluded that exposure to defendant’s pesticides

exacerbated those conditions. The trial court excluded Dr. Rea’s testimony, concluding

that it did not qualify for admissibility under State v. O’Key, 321 Or 285 (1995). The

court noted that the American Medical Association (AMA) and other professional

organizations do not recognize “chemical sensitivity” as a valid medical diagnosis, and

virtually every court that previously addressed the issue refused to allow Dr. Rea and his

associates testify as experts on “chemical sensitivity.” 222 Or App at 450-51. The Court

of Appeals reversed. The court first noted that, when all the evidence was considered,

“the most that can be said is that there is a controversy in the medical community about

whether chemical sensitivity…is a valid diagnosis.” Id. at 447. The court concluded

that, “the competing views between the two schools of scientific thought did not

authorize the trial court in its gatekeeping function to exclude plaintiff’s

evidence…because each school of thought reaches a conclusion that is ‘biologically

plausible[.]’” Id. at 450 (citing Marcum v. Adventist Health System/West, 345 Or 237,

248-49 (2008).

The fact that no other court had allowed expert testimony on “chemical

sensitivity” did not matter, the court explained, because under Oregon law, “the proper

inquiry is not whether…chemical sensitivity is a "valid" diagnosis or is recognized by

other jurisdictions; rather, we must, on the record in this case, ‘decide whether

truthfinding is better served by admission or exclusion.’” Id. at 451 (quoting O'Key, 321

Or at 299). The court stated that, regardless of what other courts have done, it has “an

obligation to independently construe the relevant provisions of the Oregon Evidence

Code.” Id. The court noted “the Oregon legislature's strong policy to aid the trier of fact

to understand the evidence presented at trial in the context of the parties' theory of the

case” and concluded that “the legislature intended controversial evidence like Rea's

testimony to be presented to the jury.” Id. at 451-52. “In Oregon, we trust juries to be

able to find the truth in the classic ‘battle of the experts.’" Id. at 452.

Blake v. Cell Tech International, Inc., 228 Or App 388 (2009)

The plaintiff in Blake brought a wrongful death action against companies that

manufacture and distribute a dietary supplement called Blue Green Algae. Plaintiff

alleged that decedent consumed the dietary supplement, which “contained toxins called

‘microsystins,’ and those microcystins caused decedent’s liver and renal (kidney)

failure,” resulting in her death at the age of 34. 228 Or App at 390. Plaintiff called an

expert witness, Dr. Dietrich, to testify “regarding the immunohistochemical (IHC) tests

he performed to detect microcystin toxins in decedent’s liver and kidneys.” The trial

court excluded Dietrich’s testimony, concluding that it lacked scientific validity. The

Court of Appeals affirmed, citing several factors: (1) “plaintiff failed to demonstrate that

IHC testing is generally accepted for the purpose of testing for microcystins in human

liver tissue” (Id. at 401); (2) “there is no known error rate in the tests performed by

Dietrich” and each set of tests “produced at least one false result” (Id. at 401-02); (3)

“there are no peer-reviewed publications regarding IHC testing of human liver tissues

for microcystins by which the accuracy of Dietrich’s tests can be assessed, nor are there

any established standards identifying specific antibodies and dilution ratios for those

tests” (Id. at 402); and (4) “the probative significance of the evidence in the

circumstances of the case—that decedent died from microcystin poisoning—is central

to plaintiff’s claim, and Dietrich’s testimony, if admissible, could be highly persuasive to

a jury.” Id. Under those circumstances, the court concluded, “the trial court, in the

exercise of its gatekeeping function, did not err as a matter of law in excluding Dietrich’s

testimony.” Id.

D. Qualifications of Expert

Durette v. Virgil, 272 Or App 545 (2015)

Thoens v. Safeco Ins. Co. of Oregon, 272 Or App 512 (2015).

In Durette and Thoens, the Court of Appeals addressed the admissibility of an

expert witness’s testimony in a personal injury case. The expert opined—based on his

analysis of photographs and repair estimates of vehicles involved in the collision—that

the collision could not have produced the forces necessary to cause the plaintiffs’

claimed injuries. In Thoens, the court held that the type of biomechanical or biomedical

analysis undertaken by the witness is scientifically valid for purposes of OEC 702. The

court rejected plaintiff’s argument that the witness was not qualified to give expert

testimony on an issue of “medical causation.” The court concluded that the witness was

qualified “to calculate and testify to the impact speed in the collision, the forces

transmitted to plaintiff in her car in the collision, the forces plaintiff’s body experienced

in her daily activities before the collision, and the forces generally tolerated by human

joints and tissues without injury as reflected in the literature in his field.” 272 Or App in

544. In Durette, the court applied Thoens and further held that the testimony was

relevant under OEC 401, and that the court did not err in declining to exclude the

testimony under OEC 403 because “plaintiff did not establish that the probative value of

[the] testimony was substantially outweighed by undue prejudice.” 272 Or App at 564.

V. Expert Testimony in Juvenile Cases

A. Sufficiency of Evidence

Dept. of Human Services v. M.E., 255 Or App 296 (2013)

The juvenile court exercised jurisdiction over twin 13-year-old girls, concluding

that the children were at risk of harm sufficient to warrant juvenile court jurisdiction

under ORS 419B.100(1)(c) because (1) mother’s current husband (the girls stepfather)

had sexually abused one of the girls on one occasion four years earlier; and (2) mother

did not believe that the incident occurred. The Court of Appeals, exercising its

discretion under ORS 19.415(3)(b) to review the facts de novo, concluded that the twin

girls were not at risk of harm sufficient to warrant juvenile court jurisdiction. The court

relied heavily on expert testimony from Dr. Frank Colistro, at that time a

forensic/investigative psychologist and certified clinical sexual offender therapist.

Colistro performed a psychological evaluation and psychosexual risk assessment of the

stepfather, and concluded that the stepfather had a “social anxiety disorder” and did

not pose “any significant threat for committing a person-to-person crime in general or a

sex crime in particular.” 255 Or App at 302 (quoting Colistro report). The court further

relied on expert testimony from Dr. Zorich, a psychologist who conducted a

psychological evaluation of mother, and “opined that mother was capable of being

protective even if she did not believe that the abuse had occurred.” Id. at 312. Under

the totality of the circumstances, the court was “not persuaded that the evidence is

sufficient to establish, by a preponderance of the evidence, that stepfather’s four-year-

old abuse of MI and mother’s denial of that abuse present a current risk of harm to MI

and MA.” Id.

Dept. of Human Services v. S.D.I., 259 Or App 116 (2013)

The juvenile court exercised jurisdiction over the child based on mother’s

absence from the child’s live for several years and the risk that the child would be

psychologically damaged if she were immediately transferred to mother’s custody

without a transition process. On appeal, mother contended that court erred in receiving

“expert” testimony from the DHS caseworker regarding the risk of psychological

damage, arguing that the caseworker was not qualified to offer that opinion. The Court

of Appeals “assume[d], without deciding, that the juvenile court did not err in admitting

the caseworker’s testimony[.]” 259 Or App at 121. The court nevertheless reversed,

concluding that “there is insufficient evidence of the type, degree, and duration of any

psychological damage that A might suffer if mother immediately took custody of her

without a transition managed by DHS to demonstrate that such a transfer would

endanger A as required by ORS 419.100(1)(c).” Id. at 123.

Dept. of Human Services v. M.H., 256 Or App 306 (2013)

The juvenile court exercised jurisdiction over the child based on findings that

child is at risk of serious harm due to her father’s sexual abuse of two children when he

was a teenager; both parents’ failure to engage in services; father’s unwillingness or

inability to protect child from abuse or neglect by mother; and the parents’ living

conditions, unemployment, and lifestyle created a risk of harm to the child. The Court

of Appeals affirmed the exercise of juvenile court jurisdiction but remanded to enter a

new jurisdictional judgment omitting findings based on parents’ living conditions,

unemployment, or lifestyle. Three psychologists offered somewhat different opinions

regarding the risks posed by father’s prior sex offenses and his failure to complete sex-

offender treatment. The Court of Appeals declined to conduct a de novo review of the

record because the juvenile court’s “findings concerning the risk of father reoffending

are consistent and are supported by evidence[.]” 256 Or App at 328 n 8. In reviewing

the evidentiary record “to determine whether any evidence, and the inferences that

reasonably can be drawn from the evidence, supports the juvenile court’s findings[,]”

(Id. at 327), the court explained that it is “bound by the juvenile court’s implicit finding

that psychological evidence was persuasive.” Id. at 328. The court concluded that one

psychologist’s testimony “itself is sufficient to support the court’s finding that father’s

earlier offenses placed V at risk of serious harm.” Id.

B. Reliance on the Court’s Own “Expertise”

Dept. of Human Services v. J.R.L., 256 Or App 437 (2013)

The juvenile court exercised jurisdiction over the child based on mother’s

admissions relating to exposing the child to risks of sexual abuse by father, a lack of

suitable housing, and a failure to meet the child’s educational needs. The court then

denied mother’s motion to dismiss jurisdiction and wardship over the child, and

approved a change in the child’s plan from reunification to adoption. On appeal,

mother argued that the court had erred by improperly relying on mother’s mental

health problem, which was not a basis for jurisdiction. The Court of Appeals agreed,

concluding that it was apparent from the juvenile court’s explanation of its decision and

its findings that “mother’s mental health and failure to consistently engage in mental

health treatment” was a significant factor in the court’s decisions. 256 Or App at 448.

That defect was not cured by periodic reports to the court indicating that mother still

needed to address her depression and anxiety issues. The Court of Appeals reversed

and remanded for the court to reconsider its rulings “without reliance on those extrinsic

facts.” Id. at 452.

Dept. of Human Services v. A.R.S., 256 Or App 653 (2013)

In this juvenile dependency case, mother and child appealed a permanency

judgment that denied their motions to dismiss jurisdiction over the child and continued

the plan of returning the child to father’s care. The juvenile court determined that

mother had not made sufficient progress to enable the child to safely return to her care.

The Court of Appeals reversed and remanded. The court concluded that the juvenile

court “erred in relying on a circumstance—specifically, mother’s alleged personality

disorder—that was not pleaded or proved as a basis for dependency jurisdiction[.]” 256

Or App at 655. The court explained that, if, as the juvenile court concluded, “mother

indeed suffers from an underlying personality disorder that is the ‘barrier’ preventing

her from reunification with child, mother is entitled to notice—and an opportunity to

address—that condition.” Id. at 664.

C. The Latest Word from the Supreme Court

State v. J.C.N.-V, 359 Or 559 (2016)

The state petitioned to waive juvenile court jurisdiction under ORS 419C.349 and

ORS 419C.352 so youth could be tried as an adult on aggravated murder and other

felony charges. Under the statutes, a youth under the age of 15 who is alleged to have

committed murder may be waived into adult court only if, at the time of the conduct,

the youth “was of sufficient sophistication and maturity to appreciate the nature and

quality of the conduct involved.” Here, the juvenile court found that this standard was

satisfied “based on evidence suggesting that youth was of ‘average’ sophistication and

maturity for his age and was ‘just as effective’ as peers of his age in understanding that

his conduct was wrong[.]” 359 Or at 562. The Supreme Court reversed, concluding that

“the ‘sophistication and maturity’ requirement is more demanding.” Id. The court

concluded, after examining the text, context and legislative history of the statutes, that

the statutory requirement “is not equivalent to a requirement that a youth have

criminal capacity.” Id. at 597. To authorize waiver, “a juvenile court must find that the

youth possesses sufficient adult-like intellectual, social and emotional capabilities to

have an adult-like understanding of the significance of his or her conduct, including its

wrongfulness and its consequences for the youth, the victim, and others.” Id.

In making that determination, “a juvenile court will be called on to consider its

own knowledge and assessment of the capabilities of typical adults and the capabilities

of the particular youth who is subject to wavier and any evidence on that subject that

the parties may offer, such as the evidence that the juvenile court in this case

considered. With regard to the capabilities of typical adults, a court could, for instance,

consider its own understanding and evidence that the parties might offer indicating that

adults have an ability to ‘measure and foresee consequences’ and are significantly

better than adolescents at accurately perceiving and weighing risks and benefits.” Id. at

598 (citations omitted).

The court cited those types of considerations and evidence as illustrative of the

type of things that “a juvenile court may find helpful in deciding what constitutes an

adult-like capacity to ‘appreciate,’ or comprehend, with heightened understanding and

judgment, an act’s consequences and wrongfulness.” Id. After making that

determination, the court “must then determine whether the particular youth’s

capabilities are sufficiently similar to those of a typical adult that the court can conclude

that the youth has the requisite appreciation of the nature and quality of the conduct

involved. That determination will again require the court to consider its own assessment

of the particular youth’s capabilities, including evidence . . . of the actions in which the

youth engaged and the youth’s history.” Id. at 598-99. The juvenile court may reach a

conclusion about the youth’s capabilities “from inferences that the court draws from

that evidence and from any expert testimony that the parties may offer. Such evidence

will necessarily be multi-faceted; there is no one capability that a youth must have to

demonstrate that the youth meets the requisite standard. Instead, a court may well

have to compile and balance competing evidence relating to a youth’s capabilities.” Id.

at 599. The legislature’s intention, the court concluded, was “to have a trial court

determine, from the evidence presented, whether the youth in question has sufficient

adult-like mental, social and emotional capabilities to appreciate the relevant conduct,

its consequences and criminality.” Id.