noting that observations about grooming behavior not drawn from testing or scientific methodology but derived from personal observations made in light of education, training, and experience constituted admissible evidence based on specialized knowledge
How later courts described this case
- noting that observations about grooming behavior not drawn from testing or scientific methodology but derived from personal observations made in light of education, training, and experience constituted admissible evidence based on specialized knowledge
- distinguishing Hansen on the basis that “the evidence in this case about grooming is the gravamen of the charges against defendant”
- upholding the admission of testimony regarding the “the cognizable behavior patterns of sex offenders as steps toward the ultimate completion of sexual abuse”
Written by the judges who cited it.
The opinion
WARREN, J.,
concurring.
I agree with the majority opinion in this case. However, I write separately because I do not think that it fully *467 recognizes the limited occasions when the Brown test applies. See State v. Brown, 297 Or 404 , 687 P2d 751 (1984). In my opinion, the Brown test applies only when the methodology for gathering scientific evidence is novel. In other words, it applies to scientific testing techniques or inventions that lead to expert conclusions. In contrast, it does not apply to “syndromes” or “profiles” that are based on human observation and study. While these syndromes or profiles might be “novel evidence” they are not based on a novel methodology for gathering the evidence. This restriction on the need to use the Brown test is evident from the test itself.
In Brown , the court listed seven factors that are to be considered in determining the relevance or probative value of proffered scientific evidence under OEC 401 and OEC 702:
“(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', and
“(7) The extent to which the technique relies on the subjective interpretation of the expert.” 297 Or at 417 (emphasis added).
Of those factors, three refer to a “technique” and one refers to an “invention.” The obvious question in this case is: what technique or invention? The technique or invention could not be the act of “grooming” by defendant because, in this case, technique or invention necessarily refers to something employed by the expert to formulate conclusions about “grooming.” Certainly, the Brown criteria are not easily applied to a syndrome or a profile analysis where there is no new methodology, technique or invention. Rather, a syndrome or profile determination is only a conclusion based on human observation and study by persons specially trained to draw such conclusions. 1 Although we have felt compelled to *468 massage the Brown test so that certain syndromes appear to fall within it, see State v. St. Hilaire, 97 Or App 108 , 775 P2d 876 (1989) (applying the Brown test to “sex abuse syndrome”), we should not compound that error here. 2 The Brown test should be used only where the relevancy question is based on novel methods of gathering evidence, not simply on novel evidence.
In Brown , the court pointed out that those seven factors were not the only factors that could be considered. It listed 11 additional factors, borrowed from Justice McCormick in Scientific Evidence: Defining a New Approach to *468 Admissibility, 67 Iowa L Rev 879,911-12 (1982). Each of those 11 factors directly or indirectly refers to a “technique.” Brown, 297 Or at 417 -18 n 5.
1 recognize that the Supreme Court has suggested that “syndrome” or “profile” evidence must satisfy the Brown test. See State v. Milbradt, 305 Or 621, 630 , 756 P2d 620 (1988) (suggesting in dictum that syndrome evidence must meet the Brown test). However, that court has not been called on actually to apply the Brown test to syndrome evidence.