*1 12, August May 1997; Argued En Banc affirmed resubmitted and submitted 9,1998 December OREGON, STATE OF Respondent, v. STAFFORD, BENNETT
NEIL Appellant. CA A90616)
(94CR0927; P2d 47 *2 Groom, David E. Deputy Defender, Public argued cause for appellant. With him on the briefs were Sally L. Avera, Defender, Public Stafford, and Neil Bennett se. pro
446-a Attorney argued Kelley, the cause General, Ann Assistant Myers, Hardy respondent. the brief With her on were Virginia Attorney General. Linder, L. Solicitor General, and EDMONDS, J. concurring. J.,
Deits, C. concurring.
Warren, J., dissenting. Muniz, J.,
De dissenting.
Landau, J.,
446-b
EDMONDS, J. three his convictions for from appeals
Defendant first ORS degree, abuse in the sexual attempted counts coercion, ORS 163.275. count of 163.427, attempted and one We affirm. for a evidence, defendant worked
According children. On age to school tutoring business that offered attended a an student eight-year-old morning question, children at the defendant; there were no other session with that time. Defendant moved to where facility at tutoring her bare of his hand on palm child sitting, placed Although it there for about five seconds. thigh kept upper room about complained previously the child had not on her if she was cold. He turned cold, defendant asked being later, room, minutes he in the and about five the heater for about five sec- place, again touched her the same thigh look a room Later the child wanted to over onds. when his hands under divider, by placing defendant her picked up later, defendant her his her chest. Still fingers arms with grab the child’s as he reached over to thigh again touched something. or to her pencil show touchings parents
The child to her reported her feel uncomfortable. indicated to them that had made they enforcement author- the incident to law parents reported Meanwhile, a second ities, investigation. who initiated an that, period child same reported during approximately on a num- time, defendant had made her feel uncomfortable with his hand and by mid-thigh of occasions her caressing ber stop asked defendant down her shirt. The child by looking behavior, the child told defendant his but he declined. After behavior, about his he going that she was to tell her mother conduct, if his he anyone her that she told about warned three The state also offered evidence from would hurt her. had previ- from California defendant lived witnesses where had been molested they Those witnesses testified that ously. conduct circumstances. That defendant under similar and 24 ear- years witnesses years occurred 17 earlier two lier for another witness. *5 police investigation completed,
After the defen- charged dant was with the trial, above crimes. At defendant position misinterpreted took the that his behavior had been any the children and was not related to interest sexual gratification. assignment In defendant’s first error, he argues by denying that the trial court erred his motion to Knapp, exclude the of Dr. Michael a clin- licensed psychologist. Knapp specialized ical testified that he has had training persons charged in the treatment of who have been with or convicted of sexual crimes, has treated sex offenders throughout professional group his career, has conducted and therapy, psychological individual and has made assessments practice, of offenders. While in he has continued take to courses the field abuse, of sexual has written an article on sexual abuse issues and has testified court on such issues. administering At trial, the time of he was an offender treat- program involving approximately ment 40 adult male offenders. Knapp concept trial,
At was asked whether there is a “grooming” specialty. known as explain in his He was next asked to concept what the means. On direct and cross-exami- Knapp nation, that, indicated within the field of sex offender “grooming” pattern treatment, word describes a ofbehav- generally go through prepare ior that offenders a victim for “grooming the eventual abusive behavior. He said that trying behavior” often involves the offender make friends exposing child, with the while at the same time the child to varying degrees touching that are at first nonsexual but progress then to become sexual.1 On cross-examination, 1 Knapp testified: prepares victimization, “When an offender a child for ultimate sexual he get relationship has groom- close to the child and a create with the child. And ing is the term part, that’s used to describe this behavior on the offender’s getting child, making child, becoming perhaps close to a friends with the a con- child, getting touching, play fidant of the the child used to certain kinds of groom is, relationship; they activities. Most offenders that I know confidant, friend, child, many a things become close associate of the do with the child, buy gifts. Many expose varying degrees them of them the child to touching nature, eventually up [are] non-sexual but leads to sexual touching; touching arms, rub, legs, lotion, applying on the back suntan using legitimate touching.
often reasons like that for the “Also, concept very subtly there’s this that the offender often- feeling responsible. might times leads the child into somehow Some offenders that, indicated within the field of sex offender treat- pattern “grooming” ment, the word refers to a of behavior go through essentially, that, he by that some offenders regarding alleged diagnosis” an offender makes a “medical identifying on his conduct. He the individual’s intent based require particular number of acts said that he does not diagnosis report beginning before to form such a inappropriate touching, touching from a child of such as the temperature, upper leg check the of a child on the child’s enough question in would be to raise a his mind that he would to check out.” “want prosecutor reexamination, asked,
On redirect *6 “Doctor, if this previously individual had been convicted many exactly in touching ways children the same that led sodomy manipulation to sexual intercourse and and of the genitals, you would that indicate to that that individual has in engaged grooming?”
Knapp Knapp again in recross-examination, answered the affirmative. On prior history
testified that the combination of a committing together touching sexual abuse with the on the upper leg picking up significant and the child of a would be deciding grooming facts in whether behavior had occurred. inquired opinion Defense counsel if his would the same if be years past, the earlier “sexual situation” was 14 in the and Knapp replied: plenty examples
“[T]here are of offenders that molest two year spans or three times their lifetime and have 20 behavior, incidents of offending [I] between so wouldn’t rule my it part out. wouldn’t rule out conclusion on that this may person have been the child.” point prosecutor trial, At that in the started give lengthy hypothetical example, and defense counsel objected. objection. prose- The trial overruled the court hypothetical required Knapp cutor’s to assume that he had before him child, you child, really power ask the ‘Do mind if I And the who has no do this?’ with, then, relationship begin object. the sexual
in the doesn’t And so when follows, the child feels that he or she must have been some kind of molestation partner in this.” teaching young in the context of females in “an individual picking up them under the arm- past engaging and chest, putting fingers upper in the and his on their pits past area, rubbing legs, thighs, their their upper breast which eventually leads to culmination of criminal sexual intercourse, masturbation, sodomy and offenses—sexual person then is convicted touching genitals —and involving prison good that and sent to for a num- of offenses years, prison engages release from ber of and then after teaching young chil- teaching again engages school and age, finding claims to interested in dren of female be temperature by touching cold or hot the ambient out how twice, to legs upper one of these on the side area student’s change heating see how cold it is and then to see if the difference, person picks caused a that then apparatus has places from behind and up armpits individual area, fingers person’s upper his on the chest or breast leg hand on her engages puts in conduct where he his while down, things, they’re sitting school pointing he is work that’s out when done; individual, in connection being when female, young engages process in a of contin- with another upper leg hand her in the context of ually putting his leaning things regard out with to school pointing over lessons, by the that that conduct is is told second individual again this is all in the persists not wanted and he still —and * * teaching context of *. [*] * * * you
“The last of information I’d like to consider bit person advises the school teacher that she’s second *7 mother and the school going report to the matter to her not; does, if she he’ll hurt responds teacher that she better her, upon Based all ofthat he’ll hunt her down or haunt her. information, you willing give opinion to us an as to would be opinion you feel that your professional whether or not engaged grooming has behavior?” person “Yes, I feel that’s behavior.” grooming Dr. Knapp responded, Hansen, v. Defense counsel relied on State (1987), argument of his 169, support P2d 157 testimony. He said: exclude case as quoted I have in the Hansen language “But the only thing really that’s been grooming far is is the as what point, as of this which appellate in our courts addressed I in the process technique. pointed a or a As out describes memorandum, case, you pleadings at the in this when look kind of establishing it doesn’t even come close to some grooming. course,
“Now, case, that as far as the Hansen said grooming, grooming process simply put cannot forth be purpose establishing acts. bad character bad * * * Well, alleges, again, based on the indictment which type touching the first of conduct and then also the of the upper leg, it doesn’t even come close to this criteria that was * * quoted in *. Hansen
“By calling Dr. Knapp they’re basically saying what going you performed by we’re to tell an innocent act how anyone could in fact an grooming pur- be act of for sexual poses. any support plead- There isn’t for that based on the ings they’re alleging grooming other than the fact that process by touching upper leg.
“* * * Looking at everything pertaining the record child], [the second there hint is not even a of some kind of a allegation, just here. Her prosecutor] [the which mentioned a ago, alleges happened moment about what he particular day, on this and it’s alleged again para- also Coercion, graph Attempted hostile, aggressive is a act nothing grooming. that has to do with far [the So as sec- concerned, ond Knapp’s testimony, child] is Dr. based on pleadings prose- [the based on the statements that Court, just cutor] made to the nothing has to do with the grooming process. they joined, And since if Dr. Knapp were testify, very is allowed obviously possible jury it’s for the to be misled and confused over this issue. course, jury,
“And of idea is to prepare whole tell, an unproven theory. which think is As far as I can it really recognized profession hasn’t been in the medical really courts, it not has been addressed in the and so what they’re doing they’re taking in this concept idea or this grooming, bringing Oregon establishing in the touching upper leg, they bring and then in Dr. theory they
who talks about this and then grooming, bring year involving prior in 15 or 14 and a half old cases activity. only purpose only sexual and the con- obvious they’re saying, clusion under those circumstances is that Well, you’ve got go years, 14 and a half back members then, jury, guy thing and see that this did a bad back
452 here, you happened right can that to what’s and relate back * * * not a act.’ no was criminal There’s relevance.
which * * to understand defendant’s motion exclude
We
testimony
Knapp’s
raise two
The first issue is
to
issues.
testimony
“grooming”
Knapp’s
Dr.
about
relevant
whether
401.2
lay
issue
the state was
under OEC
required
The second
is whether
a
for the
of scientific
to
foundation
admission
it
under OEC 7023before
could offer
testi
appeal
mony.
issue,
the
defendant relies on
on the
As to
latter
(1984).4
holding
P2d 751
in State v.
687
Prefiminarily
argues
any objection
the
under
state
preserved
disagree
the
was not
before
trial court. We
Brown
Hansen, a
of defendant’s reliance at trial on State v.
because
plays
detail,
it
a
that we will discuss
some
because
case
analysis.
subsequent
major
role
our
high
defendant,
teacher,
a
Hansen,
In
the
school
was
sodomy
engaging
charged
her
with one of
students
with
birthday.
testified on
before the student’s 16th
The student
examination and cross-examination that she had for
direct
initially
having
relationship
denied
a sexual
several months
ques-
into
the defendant. Because
called
credibility, the
evidence from
tion the student’s
state offered
experience
regarding
investigating
police
detective
his
The
child sexual
cases.
detective testified over
other
abuse
objection that it
normal behavior for child victims of sex-
deny
they feel
that abuse occurred because
ual abuse
2
provides:
OEC
“
tendency
having any
the
‘Relevant evidence’ means evidence
make
any
consequence to
fact that
is of
the determination
the action
existence
probable
probable
less
it would
the evidence.”
more
or
than
be without
provides:
OEC 702
scientific,
specialized knowledge will assist
“If
technical or other
the trier
issue, or to determine a fact in
witness
of fact to understand
the evidence
skill,
expert
knowledge,
experience,
training
or
qualified as an
education
may testify
opinion
an
thereto in the form of
otherwise.”
4 Brown,
the
the court
the standards used to determine
admissi
held that
(1)
theory’s gen
bility
401 and
are
evidence” under OEC
OEC 702
of “scientific
(3)
(2)
stature;
field;
expert’s qualifications
acceptance
the use
in the
eral
(5)
(4)
error;
theory;
potential
the existence of lit
that has been made
(7)
(6)
novelty
theory;
theory;
supporting
extent
erature
plays
subjectivity
a role.
“
Yes,
techniques.
‘[DETECTIVE:]
there are certain
usually
‘grooming process.’ Usually,
It’s
what I term a
goes
there’s an
amount
testing
extensive
that
on both
physically
psychologically.
usually
gift
There is
a lot of
giving,
affection,
rewards,
a lot of
praising,
anything to
make the individual more comfortable even to the extent of
dealing with lots of people surrounding
particular per-
son,
comfortable
just getting
role;
words,
into a
in other
feeling
being
Yes,
comfortable and
close to an individual.
they
”Hansen,
often establish some
dependency.’
emotional
The Hansen court held that evidence grooming in that case was not relevant under OEC 401. It noted that under admissibility expert testimony must be eval- uated in reference to OEC 401. It said:
“The testimony
objects
to which
nothing
defendant
did
explain
to
the student’s initial denial of sexual relations
that,
defendant. Detective
expe
Robson testified
his
rience, sexually
admit
abused children are reluctant
to
because,
abuse
feelings
guilt
addition to
and embar
rassment,
they are
emotionally dependent
often
on the
adult
abuser. That much of his
arguably is
Middleton,
427, 657
[State v.]
admissible under
[294 Or
P2d
(1983),]
although
intra-family
Middleton involved
abuse,
might
because it
fact
assist the trier of
to understand
the student’s initial denial. But the specific techniques used
get
may
some child abusers ‘to
to the victim’
close
which
abuser,
result
dependence
the child’s emotional
on the
are irrelevant
to the
dependence
effect the
has on the child’s
willingness
implicate
to
It
the abuser.
is the emotional
it,
dependence,
specific
produce
not the
acts that
that helps
explain
support
the child’s behavior .Middleton does not
Hansen,
admission
testimony.”
of this
Whether whether on the facts of each case depends particular make a tendency particular evidence has a proffered Hansen contention more or less likely. holding fact or not relevant is not on point evidence was “grooming” Hansen, In of the detec facts this case. the relevance to the on whether evidence about testimony depended tive’s initial denial of sexual could the student’s explain held, the ultimate with the defendant. As the court relations on the could have been rele dependence emotional abuser led acts that underlying vant to that issue but contrast, in this case were not. dependence *10 against the gravamen charges is the of grooming about not Defendant’s that his conduct was position defendant. directly behavior his intent puts intended as conduct, like that occurred issue. Evidence that which of sex case, patterns falls within the behavior cognizable of sexual completion offenders as toward the ultimate steps motivation it more that defendant’s probable abuse makes for his eventual sexual gratification. for his conduct was own under was relevant We conclude OEC 401. required whether the state was regarding
The issue turns foundation for Knapp’s an additional lay evi by is “scientific testimony given on whether Brown, Brown. In of State v. meaning dence” within of the results of a admissibility polygraph issue concerned the The court said: examination. opinion use it in this refers to
“The term ‘scientific’ as we convincing princi- from some that draws its force evidence science, Typically, but not mathematics and the like. ple by expert an necessarily, presented scientific evidence and, or results if neces- explain can data test witness who give are said to sary, explain principles the scientific which accuracy.” 297 Or at reliability its or the evidence 407-08.5 meaning on the court elaborated O’Key, case, charged In that the defendant was evidence.”
“scientific intoxicants, and the issue influence of under the driving as the test known sobriety of a field admissibility was the (HGN) test. The test is per- Nystagmus Horizontal Gaze nystagmus of onset of by measuring angle formed a looks eyes subject oscillation involuntary, rapid The steadily object. tracking moving side-to-side while from test is based is that alcohol on which the proposition scientific The eyes. mechanism of the involuntary tracking affects the is “sci- of an HGN test result court concluded evidence evidence,” because entific convincing prin its force from purports
“[the test] draw science, namely, proposition the asserted scientific ciple of consumption of relationship that there is a causal between type nystagmus and the measured the HGN alcohol test[,]” 296,6 O’Key,321 Or at who observation of the officer personal addition to
administers
the test.
O’Key
is that evidence based
implication
force
convincing
that does not draw its
personal observations
within
from a
of science is not “scientific evidence”
principle
“it
meaning
O’Keyrecognized,
of Brown. As
court
‘scientific’
boundary
difficult to set a more definitive
between
knowledge,’
evidence and ‘technical or other
specialized
types
requiring expert proof.”
which are
other
exists,
it is
Nonetheless,
456 inquiry whether Knapp’s testimony derives its force from scientific or whether principles it is merely testimony based on specialized knowledge of an expert in the treatment of sex offenders.
In State Milbradt, v. 621, (1988), P2d 620 an issue was whether a caseworker who was not an expert on mentally retarded adults could testify the way child vic- tims normally react to sexual abuse without meeting the Brown foundation requirements for scientific evidence. The defendant in Milbradt was charged sexual offenses two involving mentally retarded adults. A caseworker was permitted to testify about child way sex abuse victims typically react to sexual abuse. The court said: “This case deals with young two adults who have had sub- stantially backgrounds different experiences and and who are physically and mentally quite dissimilar any child * * *
victims previously encountered this witness. We great have set out in detail in 409-18, 297 Or at necessary foundation that must be laid for the introduction of scientific evidence. Without repeating what we said there, we direct the anyone attention of who is offering a form of scientific evidence procedures to the for admissions * * * set forth in Brown.
“* * *
suggest
We
in future cases involving ‘syn-
drome’ testimony full
established,
foundations be
if indeed
it can be shown that the so
‘typical’
called
reactions can be
* * *”
demonstrated
to be either
typical or reliable.
Milbradt,
In Hilaire, State v. St. 97 Or App 111, 775 P2d (1989), the defendant assigned as error the trial court’s admission of a police detective’s “that victims of sexual abuse rarely report the crime often immediately, min- imize the and activity often are about imprecise the dates of the occurrences.” We agreed with the defendant’s argument palpation by resorting x-ray. and observation or diag- to an His about his meaning nosis is not hand, “scientific evidence” within the of Brown. On the other “syndrome” evidence of a could be “scientific evidence” under some circumstances. * * * parlance, “syndrome” aggregate signs symptoms “[t]he medical constituting together picture Dictionary, of the disease.” Stedman’s Medical (23d 1976). relationship aggregate signs ed symptoms between the may gives reliability syndrome exists, be what to the conclusion that a and that relationship may only by comparative analysis be demonstrable of test data.
457
testimony
only
syndrome”
if an
admissible
that “sex abuse
In
appropriate
Milbradt.
under Brown and
is laid
foundation
testimony
rebut an
was offered to
Hilaire, the officer’s
St.
testimony
Thus,
was not credible.
that the victim’s
inference
explain
testimony
the state
offered to
the detective’s
regard
reporting the abuse
abuse victims with
mind of sex
psychological
abuse
condition of sex
words, the
or, in other
proper
had laid a
foun-
the state
concluded that
victims. We
testimony
that his
and
the detective’s
dation for
theory.
to rebut the defendant’s
was relevant
App 392, 872
P2d
rev
Lawson,
v.
State
(1994),
charged
defendant,
assault
the
“[T]he involves case defendant evidence comparing an individual’s behavior with whohave been ofothers in similar circumstances behavior purports past. comparison in the This evidence studied principles. convincing It its force from scientific draw explain requires expert the data and an witness who can necessary, principles and, results, if the scientific test accuracy.” reliability give Id. its are said to evidence at 395. holdings Milbradt, St. conclude that
We admissibility of the Hilaire and Lawson do not control They the admis- in this case. were concerned with psychological picture sibility of sexual of the evidence of physically individuals who abuse children. abuse victims or prove charges the state’s here was offered to jury understanding significance of and to assist the victims, that other- actions defendant’s actions toward might of a innocent behavior. “Evidence be considered wise rarely, proven ever, evi- if direct defendant’s intent operation mind, and it is seldom an dence. Intent is susceptible proof.” Rose, direct State v. 274, 282, Or (1991). required 810 P2d case, In this the state was prove touching occurred with a criminal intent. Knapp’s general testimony about the methods that sex prepare offenders use to their victims for eventual abuse has nothing providing psychological picture to do with of defen- credibility. provides dant as an abuser or his Rather, it evi- jury dence from which the could infer that defendant acted purpose, impor- for a sexual an element of the crime. Most tantly, the force of observations is not drawn from *13 psychological testing any methodology; other scientific personal rather, his is derived from observations light training experience, made of his education, not any expert unlike other witness who testifies from technical specialized knowledge.8 light, or other In that we conclude Knapp’s testimony that was not “scientific evidence” within meaning “specialized the knowledge.” of Brown but evidence based on assignment
Defendant’s second of error is related to assignment his first of error. The trial court ruled that the testimony of three of the witnesses from California was prior admissible as evidence of bad acts to show defendant’s alleged against intent at the time of the crimes the victims in 404(3) provides: this case. OEC crimes, “Evidence of other wrongs or acts is not admis- prove sible to the a person character of in order to show that person the acted in conformity may, however, therewith. It be admissible for purposes, motive, other such proof as of opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” appeal, argues
On defendant that he “wouldhave dif ficulty arguing theory with the relevance state, but for light the fact that the California acts are so remote.” In of Dr. Knapp’s testimony plenty examples that “there are of of offenders that molest two or three times their lifetime and year spans offending have 20 between incidents behavior,” the hiatus between the California acts and the incident
8 To the extent that our decision in St. Hilaire can be read to stand for more regarding admissibility than a rule of concerning law the of evidence a victim’s or a psychological condition, any interpretation. defendant’s we disavow such Defendant the irrelevant. does not render evidence this case argues prejudicial from the that effect of also any outweighs probative The trial value. victims California necessary inquiries through State under all of the court went (1986), P2d to determine Johns, v. prejudi- relevant whether its evidence was whether the substantially outweighed probative The its value. cial effect very, “very, strong.” It noted trial that found the evidence court young girls in a stu- victims all of the California were relationship char- with defendant and that the dent-teacher actions at that time were similar to acteristics of defendant’s his in this also concluded that the conduct case. court light position state needed the evidence of defendant’s that touchings were innocent. Addi- victims this case jury tionally, in a manner to make it the court instructed jurors unlikely con- would the evidence. We misuse ruling probative clude the trial court’s value outweighed potential prejudice for unfair evidence proper and not an abuse discretion. was Assignments error and four do not warrant a three say it to that the taken detailed discussion. Suffice light in the most to the state demonstrates that favorable steps abusing the victims. defendant took substantial toward them occurred the victims described Whether events *14 jury question decide, and there is evi fact for charges. support dence element of the in the record to each leg, Finally the first victim’s he each time defendant touched attempted because he had the committed sexual abuse opportunity pause on his conduct. ORS and reflect lawfully imposed Thus, were 161.067.9 consecutive sentences 9 provides, part: pertinent ORS 161.067 “(1) episode two or more stat- When the same conduct or criminal violates requires
utory provision proof the oth- provisions and of an element that each not, many separately punishable there are as are ers there as offenses do separate statutory violations. “(3) only episode violates one statu- When same conduct or criminal victim, repeated tory only provision nevertheless involves and involves one but victim, statutory provision against there are same the same as violations of the violations, punishable except many separately that each offenses there are sepa- violation, subsection, separately punishable be must to be under pause by a in the defendant’s other such violations sufficient rated from 460 objectives
because he had the time to renounce his criminal acting arguments before further. Defendant’s other assignments of error do not warrant discussion or we do not adequate have an record to review them.
Affirmed. join opinion. Haselton,
Warren JJ., in this concurring. DEITS, J.,C. agree majority preserved with the that defendant argument adequate that the state failed to establish an
foundation under
v. Brown,
404,
State
297 Or
As noted
I believe that
Landau is cor-
Oregon Supreme
rect that
Court and this court have
clearly
psychological
held
evidence,
similar in nature presented
here,
should be evaluated as ‘scien-
purposes
admissibility
tific evidence’ for
under Brown.
(1988);
Milbradt,
621,
State v.
305 Or
756 P2d State v.
App
(1997),
Stevens,
592, 599,
147 Or
inal intent.
461 principles, psychological tests or other scientific from flow but expe- training light made in of his from observations existing my law, this case view, however, under the rience. fac- that the Brown to the conclusion does not lead distinction apply. dictates how the Instead, difference do not tors applied. be factors should Brown applying by emphasizing begin that,
I would
assessing the correct
test,
focus should not be
Brown
being
proposition
offered; that is
that is
scientific
ness of the
the Brown
Rather, the focus of
the trier of fact.
a task for
underlying
methodology
inquiry
be on the scientific
should
methodology
proposition.
involves
Scientific
the scientific
consisting
technique[s],
of the formulation
“validation
hypotheses,
experimentation
by
or
followed
observation
O’Key,
hypotheses.”
P2d
285, 292, 899
v.
321 Or
the
(1995).
State
test
agree
appeared
scientific meth
This court
663
odology
applying
proper
the Brown fac
when
was the
focus
Corp.,
Jennings
Healthcare
v. Baxter
tors in our decisions
App
“[The
factors]
seven Brown
methodology underlying the sci-
whether the
determine
Moreover,
sufficiently reliable.
entific evidence is
a
evidence has
factors focus on whether scientific
Brown
probative
it to have
value
reliability sufficient for
level of
whether ‘the evidence
and are not to be used to determine
scien-
indisputably
on a certain or
correct
reflects or rests
Stevens, Inc.,
Or
&
Boger
tific
v. Norris
proposition.’
(1992).”
(1991),
90, 93,
rev den
It is also developed more tradi- test does, that the Brown consequence, and, in mind as a evidence tional scientific pre- psychological application a is not test to evidence example, the terms factors use four of the Brown cise fit. For proffered here, “technique” evidence or “invention.” “technique” Rather, “invention.” course, does not involve generalizations human about here consists evidence assessing particular person trained made behavior kinds of human behavior. Knapp, the witness In the words here, offering disputed is “a *16 grooming descrip- tion of a of pattern behavior that offenders generally go than through, some more others.” in in cases, court subsequent appears recognized to have these in incongruities appli- the cation of Brown to psychological by declaring evidence the Brown not a test test is mechanical for the of admission scientific and in evidence its admonition the test should applied manner, be in a flexible on depending the character- istics of the particular O’Key, 300; Brown, evidence. Or at that, 297 Or at in 417-18. would hold applying the Brown test to evidence, need to psychological we take account into the particular and, nature of the in particular, evidence on methodology focus the used the develop evidence.
The manner
in which I
apply
would
the Brown fac-
tors differs from that used
Landau in
by Judge
major
that his
focus is on
validity
theory
by
of the
being offered
expert here,
he
which
labels as
rather
than on
“grooming,”
the scientific methodology
Knapp
used to
this
develop
theory. Judge
appears
Landau
to consider
be the
grooming to
or “invention” that
are
con-
“technique”
we
evaluating
cludes that
the Brown factors are not satisfied here because
there is no
of
evidence
of
general acceptance
grooming
no evidence about the
that is
technique,
use
made of groom-
ing, the
rate of error
potential
novelty
of
the use of the
concept
Grooming, however,
grooming.
here. In
theory
my view,
scientific
we should evaluate how
premise
generalized pat-
arrived at the
that there is a
tern of behavior called
If the scientific
grooming.
methodol-
ogy
sound,
used in
at
arriving
theory
and the evidence
test,
otherwise satisfies the
it is for the
of fact
relevancy
trier
determine
weight
to be
to the
given
OKey,
evidence.
This court used the above approach applying Brown factors to this St. case type evidence Hilaire. That admissibility by involved the question specialized officer abuse cases police regarding who sex victims child typical behavior of sexual abuse. The witness Hilaire, Robson, had for offering St. worked years involving crimes child abuse and child investigating sexual He had received extensive exploitation. training on subject sexual abuse of children and had interviewed over 400 sex personally alleged abuse victims. The court in noted at the St. Hilaire outset that the Brown factors should “guidelines,” serve as not as a checklist. It then its explained of Brown: application testifying
“In about the typical sexually behavior of abused children, merely Robson drew observations from his exten- experience interviewing clearly sive He qualified them. Moreover, to do that. because most of the children whom he had abused, interviewed were known to have been there potential was a Finally, low error his observations. because the consisted of Robson’s factual obser- vations, there subjective was little room for interpretation part. his
“It is true that might the state have offered evidence on specialized the existence of literature in the field of the behavior of child abuse victims. Given that Robson’s testi- mony was based experience, however, on first-hand that foundation was unnecessary. None of the remaining Brown applies criteria type testimony offered here.” Hilaire, added). App St. at 113 (emphasis A similar analysis is appropriate here. Defendant does not dispute was an Knapp expert. has a masters’ degree clinical and psychology has been licensed as a clinical since psychologist Oregon May 1984. He has had specialized in the treatment training who persons have been charged with or convicted of sexual crimes and has worked with sexual offenders during time conducting group therapy, individual and therapy making psychological assessments of offenders. He has continued to take courses in abuse, the field of sexual has written on sex abuse issues and has testified on such issues. He testified that he presently is in an working offender treatment program. He explained: “I have a program treatment in Ashland that has about 40 adult males involved in it at this program time. The is a year two to three program. getting person It involves make full disclosure history, working about their sexual with them to help high them understand their risk situa- tion-thoughts, feelings and behaviors —that are antece- dent, before, sexually or come acting helps out. It them many understand the side of perhaps themselves that acknowledge, doing them don’twant to that leads them into place. example,person- this kind of offensein the first For ality being looking self-centered, characteristics like not at consequences things.” actions, to one’s those kinds of
Knapp’s testimony regarding pattern ofbehavior he describes as drawn from his observa- training personal experience. tions based on his He was clearly qualified testify. Knapp’s to so consisted mostly of factual observations about behavior of sexual Although Knapp’s generalizations offenders. subjective included some
interpretation, part, for the most his objective consisted of observations ofcertain behavior that he technique had in sexual offenders. The used observed namely, develop proposition, observation and by person training assessment of sexual offenders with experience, certainly well-accepted developing method of psychological techniques evidence. As with most associated readily psychological technique evidence, with does not objective, empirical providing lend itself to data on which to potential error, base a tests. There rate of as do more traditional scientific
likely subject specialized literature on the grooming, but none was introduced here. The Brown factor regarding “novelty particularly of the invention” is not meaningful evaluating here, as we are not an invention. considering factors,
After and in the above view of adequate I evidence, the nature of this would hold that an under foundation has been established Brown for admis- agree Further, above, noted sion of evidence. majority that the evidence is relevant under OEC 401. The though remaining question *18 evidence, is the even rel- whether evant, unfairly prejudicial. 403, should be excluded under OEC because it is application
The in of OEC 403 was by explained the court Brown: requires and, cases, in some “This rule trial courts degree appellate courts to evaluate the to whichthe trier of by may overly impressed prejudiced perhaps fact be or misplaced reliability validity evidence, aura of or thereby leadingthe trier offact to abdicateits role ofcritical supra Weinstein’s, 297 Or at assessment. See 3 702-19.” 439. in Brown went on to conclude that because poly-
The court and infallibility” has “an aura of scientific evidence graph the namely, the of the trial directly process, to essence goes defendant, and the it must be truthfulness of the witnesses unfairly prejudicial. excluded as of fact be
In here whether the trier will evaluating evidence, the believe that by disputed again overimpressed the nature of this evidence. we need to take into account the consider the difference between we particular, should traditional sci- evidence versus more impact psychological entific The of more traditional scientific evi- impact evidence. dence, often referred to as “hard scientific” evi- or what is dence, by is discussed one commentator.1 juries
“The concern about and ‘hard’ scientific particular traditionally Frye juries the test is that by evidence are not in a dence covered
position fairly intelligently weigh to evi- key understanding the the evidence is locked when cannot be up cross-examined. nature process in some inscrutable device or which by Additionally, the evidence its ‘scientific’ may unquestioning juror acceptance. tend to elicit jury being virtually in the either position Where the is compelled accept validity the of the evidence because it effectively irrationally be want- cannot cross-examined ing appears the because it to be simply to believe evidence ‘scientific’, unassailably Frye the test seeks to assure that general acceptance by the sci- evidence reliable. community jury’s ina- compensate entific serves to bility fairly assuring at least weigh likely by placing reliance on jury misguided is not to be McCord, Syndromes, the evidence.” David Profiles Admissibility Approach Other Mental Exotica: A New Psychological Evidence in Criminal Nontraditional (1987). Cases, L 66 Or Rev psycho- some deference to juries likely give "While do have the evidence, consistently evidence does not logical such discussing acceptability were in the These comments made context However, regarding impact point of “hard Frye of the discussion test. jury equally applicable here. evidence” on the scientific *19 466 jurors Psychologi- effect on as hard scientific evidence.
same cal evidence generally juror is not information com- pelled accept to because it is inscrutable and difficult to cross- Psychological examine. evidence is most often derived from may draw, of human behavior. Jurors often at observations experience extent, from their life in assess- least some own reliability meaningful ing the of such evidence and cross- the trier fact in examination is often available to assist assessing reliability the of the evidence. O’Key, prejudice” explained in
As the court
“unfair
mean that the evidence is harmful to
under OEC 403 does not
party’s
case:
403,
prejudice’
“In
context of
‘unfair
does not mean
the
OEC
harmful
case —a central rea
opponent’s
‘evidence is
[251,]
offering
Hampton,
[State v.]
son for
evidence.’
317 Or
(1993)].
15,
Rather,
[855
259 n
P2d 621
it means an undue
basis,
improper
a decision on an
com
tendency
suggest
monly
always, an emotional one.
v.
although not
State
(1991).
98, 105-06 12,
Pinnell,
n
P2d 110
‘Unfair
806
preferences
in which the
prejudice’ describes a situation
by
essentially
fact
affected
reasons
unre
the trier of
are
persuasive power
lated to the
of the evidence to establish
consequence.”
the fact of
I
hold that the evidence here is not
would
prejudicial.
pattern
The existence of a
of behavior —labeled
grooming provides
possible explanation
one
for defen-
—
touching
alleged
victims.
never tes-
dant’s acts of
engage
grooming. Rather,
he
tified that defendant did
general pattern
indi-
as a
ofbehavior and
described
particular
pattern existed in a
case
cated that whether the
must
based on the “context of
situation.”
be determined
jury
O’Key,
capable
recognized
As
court
evaluating
evidence.
is evident from the test itself. that are to be Brown, In the court listed seven factors probative determining or value of the relevance considered proffered 401 and OEC 702: evidence under OEC scientific “(1) in the field: general acceptance The technique’s “(2) expert’s qualifications The and stature: “(3) technique', of the The use which has been made “(4) error; rate of potential The
“(5) literature; specialized The existence of “(6) invention', novelty The of the
“(7)
subjec-
technique
The extent to which the
relies on
interpretation
expert.”
(emphasis
massage syndromes appear the Brown test so certain App it, fall within Hilaire, see State v. St. 775 P2d (1989) (applying syn- the Brown test to “sex abuse drome”), compound we should not that error here.2 The only relevancy question Brown test should be used where the gathering simply is based on novel methods of evidence, not on novel evidence. dissenting. MUNIZ, J.,
DE agree opinion Knapp’s testimony I with the lead agree here was However, not scientific evidence. I also Judge position Landau’s that the should not have requires although agree been admitted and reversal, I do not analysis leading with his to that conclusion. my unnecessary dispute view, it is to reach the Irrespective
to whether the evidence was scientific evidence. ofwhether the offered is deemed evidence based on “specialized knowledge” evidence, or “scientific” the first question to resolve is whether the evidence is relevant. opinion, Unlike the lead it conclude that is not. *21 Supreme
The
Hansen,
Court noted in State v.
(1987):
304 Or
169, 175,
must
be evaluated
the same manner as other
particular
evidence, with
reference under OEC 401 to the
testimony’s
danger
relevance and
OEC
under
403 to the
testimony might unfairly prejudice
opposing
that the
party.
409,
Id. at
415-18.”
O’Key,
(1995),
And in
285, 298,
State v.
321 Or
899 P2d admissibility
where the issue was the
of the “scientific” evi-
nystagmus test,
dence of the
the court reiterated that the
step
determining admissibility
first
is relevance:
(1982).
879,911-12
Admissibility,
directly
67 Iowa L Rev
Each of those 11 factors
or
indirectly
“technique.”
to a
refers
On explain nothing initial denial the student’s “did relations with defendant”: of sexual [on which the evidence only possible ground
“The other that defendant admissible] would be as evidence would be student, but the relevance had sexual relations with nil. Detective practically purpose for this might ‘profile’ be described as Robson testified to what child: unrelated to the child abuser who is a nonviolent child, ‘testing5 giving gifts, psychological physical child feel comfort affection, making the showing praising, use presence, etc. That child abusers able in the abuser’s person who bearing has no on whether techniques these at 175-76. things is a child abuser.” Id. does these reasoning opinion persuaded the lead I am not preparing apply that, a child testified does not here. gets child, close to the victimization,” the for “sexual offender relationship, buys gifts, a confidante and becomes creates a engages only touching.” “varying degrees relevance 1Robson testified: “ “grooming usually Yes, techniques. I term a It’s what there are certain *22 testing goes on both Usually,
process.” there’s an extensive amount giving, usually gift affec- psychologically. a lot of physically There is a lot of and rewards, tion, anything more comfortable praising, make the individual surrounding particular people dealing with lots of even to the extent of words, role; feeling comfortable just getting in other person, into a comfortable Yes, they emotional establish some being often to an individual. and close ” dependency.’ at 174. 304 Or testimony touching of that was was as evidence that defendant’s engage However, sexual. in Hansen, as that abusers touching part grooming bearing oftheir has no on whether defendant is an abuser.
The state contends, however, that Hansen “does not expert may techniques by mean that an never describe used resistance[.]”2 offenders to break down if so, Even that is negate observation does not that, under Hansen, evidence “grooming process” that sexual abusers use a is not automat- ically alleging relevant in a case sexual evidence, abuse. Such permits more, without that, inference because a defen- engaged engage dant defendant is a sexual in acts that sexual child in, abusers Hansen,
abuser.
Defendant here that the state did not show grooming process, how his behavior was connected to the agree. Knapp’s testimony general I “grooming” as to characteristics of permitted jury
behavior to make an unwar- engaged any ranted that, inference if defendant of that behavior, he awas sexual abuser. It was error to allow Knapp’s testimony, prejudicial. and the error was Accord- ingly, agree Judge Landau’s conclusion that the trial court’s decision should be reversed. joins
Wollheim, J.,
in this dissent.
dissenting.
LANDAU, J.,
I would hold that the
ofDr.
is inad-
my
opinion wrongly
view,
missible.
the lead
concludes that
admissibility requirements
ofState v. (1984),
apply. They
apply,
Supreme readily Court and this court demon- contrary Moreover, to the conclusion of Chief Judge concurring opinion, admissibility require- Deits’s those developed by ments have not been satisfied on the record state this case. I remand, and, therefore would reverse and apply, stating The trial court held that Hansen did not that the police county opinion there was “a officer in the as to his off-hand as to what items considered,” Knapp’s testimony could be whereas in this case “properly However, expert.” credentialed the court in Hansen did not address but, rather, testimony. officer’s credentials the relevance of the *23 I contrary, respectfully court to the of this the decision from dissent. to whether Brown applies question
I with the begin rel- of Knapp The state’s testimony. questioning a clinical from him that he is licensed brief. It elicited atively training the specialized that he received psychologist, or convicted with charged who have been people treatment of crimes, he at least one article on published that has of sexual offenders, the Associ- he is a member of treating sexual that Abusers, he has testi- Treatment of Sexual that ation for the sexual subject in court on a number occasions on fied journals on abuse, professional keep up he reads that offenders, of sexual and that the treatment developments 40 male for program approximately he runs a treatment foundation, then testified Knapp that offenders. With follows:
“Q. your experience training on on the issue of Based offenders, is a concept
sexual abuse and sexual there you’re grooming? that aware of that’s known as “A. Yes.
“Q. you please explain jury could to this what that And
concept is and what it entails? ultimate an a sexual prepares “A. When offender child victimization, get has the child and cre- he close to relationship grooming a with the child. And is the on the ate that’s term used describe this behavior child, part, getting making close to a offender’s child, becoming perhaps a confidant friends with child, kinds getting of the the child used to certain touching, play Most offenders that know activities. groom is, they a confi- relationship; that become dant, friend, child, many close do associate child, Many things buy gifts. with the them of them degrees touching expose varying the child to that nature, eventually up to non-sexual in but leads sex- arms, rub, touching; touching legs, ual back lotion, legitimate using suntan often reasons applying touching. like that for the
“Also, that grooming concept there’s this into very subtly leads the child offender oftentimes might offenders feeling responsible. somehow Some you. child, ask child, Do mind if I do And the this? really power relationship begin who with, molestation have has no in the object. then, doesn’t And so when the sexual follows, the childfeels he or she must partner been somekind of this.” cross-examination, On if defendant asked what “grooming” technique described as constituted or a theory. Knapp explained pattern just “[i]t’s description for a go generally through,
ofbehavior that offenders some explained more so than others.” He further “always interpreted needs to situation,” be of a context including history, age offender’s sex, the child’s *24 any touching, location of touching. and the circumstances of that expanded point On redirect, the state on that and question previously whether, asked if the individual in had followingpreliminary, been convicted of sexual assault osten- sibly touching, nonsexual, then such information would indi- engaging cate that the individual later in the same sort of ostensibly touching engaged groom- in nonsexual fact has in ing. Knapp replied, “yes.” questioned cross-examination,
On further defendant Knapp point, asking any about that whether it made differ- prior very Knapp ence whether the conviction was old. replied that he would consider that fact. He then elaborated: “I think that in this conclusions matter are not I either or. they’re percent they’re
mean, not either 100 or I zero. think always, prediction tentative, because of this kind ofbehav- interpretation interpre- ior of kind ofbehavioris an on tation based the context of the situation which it occurred, Ias have elaborated.” pursued posing Knapp further, The state then the matter fairly hypothetical asking a detailed situation and him whether he would consider that to constitute Knapp affirmative, behavior. When answered the the state concluded its examination. opinion foregoing testimony
The lead holds that the implicate admissibility requirements does not the Brown, because what said was not “scientific evidence.”
473 opinion, According not evidence” does to the lead “scientific personal observations that that is “based include evidence convincing principle a science.” its force from does not draw accept App law cannot that statement of the at 455.1 tautology First, evi- reasons. it is bald two —scientific convincing force from science—and dence is what draws its essentially meaningless. only imagine difficulty
I can holding practicing applying bench and bar will have apart opinion Second, that, from lead future cases. opinion’s support can find case law for the lead no applicable tell, it far I can rests statement of the entirely law. So reading on a revisionist relevant decisions Supreme Court and this court. Supreme Oregon that, held Court may admitted, the trial court “scientific” evidence be before must evidence,
“identify
probative
value of the
evaluate
might impair
help
consider how it
rather
than
fact-
finder,
truthfinding
is better served
and decide whether
Brown,
“ testimony partly at on sci- rests least expert ‘Most underpinning scientific well many ence. In areas the 702 and [Rules] out in criteria set established essentially The are three: requirements 703 work well. testimony his expert, an qualify The witness must as ([Rule] 702), he an ade- and must have helpful must be 703). ([Rule] Under these says he quate basis for what criteria, of conventional scientific an enormous amount Christopher B. Mueller routinely admitted.’ 7.8, 990 Kirkpatrick, C. Evidence § & Laird Modern (1995). by lay jurors perceived
“Evidence to scientific in be possesses high degree nature an unusually persuasive of power. per- function of the court is to ensure that the appeal is legitimate. proffered expert suasive The value of testimony scientific critically depends on the scientific validity of general propositions utilized the expert. * * * Propositions a possess significantly court finds potential increased to the trier influence scientific fact assertions, therefore, supported by should be appropriate ** * validation. scientific [*] * * [*] need attempt precisely distinguish “We not ‘scientific’ types
from of expert testimony Oregon other Evi- under the now, that, dence Code. For we hold in the of clear absence case, judicial notice, a case for or prima leg- case facie recognition, islative trial courts an obligation have proffered ensure that expert testimony scientific that a court finds possesses significantly potential increased influence the trier of fact as ‘scientific’assertions is scientif- (Footnotes omitted; ically valid.” in original; brackets added.) emphasis Thus, to the lead contrary cases, opinion’s reading expert testimony whether on relies some “scientific” proposi- tion, technique, is, or formula is not the It as the court point. likely whether the will explained, jury perceive testimony thereby regard to have a basis science and it with persuasive enhanced force. Id. at 292-93.
Consistent with that general
the cases of
principle,
both the Supreme Court and this court have
required
concerning psychological “syndromes”
“profiles”
satisfy
must
requirements
Brown. For
example,
Milbradt,
621, 631,
(1988),
State v.
475 (1994), that we held 986, rev 320 Or 395, 872 P2d den testimony concerning expert to which defendant’s the extent expert had the observed with traits was consistent behavior many that scientific evidence child abusers was other requirements implicated ofBrown. the indistinguishable my Knapp’s is view, testimony Milbradt, Hilaire, It is and Lawson. the St. from testimony compares behavior of an individual with the an other individuals with assumed the observed behavior of likely persuasive jury special to ascribe shared trait. The expert’s the the of behaviors. force to characterization therefore, must be satisfied. opinion attempts distinguish each the to of
The lead upon by recasting dependent foregoing the them as cases opinion offering “syndrome” evidence, which the lead of aggregate signs symptoms that of consti- defines App (quoting “picture at 455 n 7 tute a disease.” 157 Or (23d 1976). Dictionary, 1379 ed In other Stedmaris Medical merely majority attempts distinguish words, the the cases by appending label, however, them. The has no a label to independent significance. As we Lawson: said ‘syndrome’ ‘profile,’ type
“Whether it is labeled a * * * comparing in this case involves an proffered in similar individual’s behavior with behavior others past.” circumstances who have been studied App at 395. precisely case, in in this
That is which what testified to compared he behavior with the behavior defendant’s past.1 he had in the others observed description accepting opinion’s the lead Even subject cases, in this still would be case opinion, According Milbradt, St. to the the lead Brown. “[tjhey distinguishable Hilaire, Lawson are because admissibility of the evidence of concerned with the were * * * physically picture psychological individuals who that, apply acknowledges arguing that Brown does not Even state testimony, swimming against law. current of the case The state it is case, Hilaire, simply suggest be overruled. goes should so far as to one St. App again, pre- That, abuse children.” 157 Or at 457. once cisely Knapp’s testimony. the nature of The state itself acknowledges Knapp’s testimony merely was offered *27 provide “[gjeneral background how information about sexual go physically abusing is, abusers” about in children.2 It other very “psychological picture” words, the the lead that — opinion’s subject own characterization the to of case law—is admissibility requirements the ofBrown.
I turn, then, to the extent to which the foundational requirements of Brown were in fact met. In the Supreme explained evaluating that, Court the foundation admissibility evidence, for the of scientific trial courts must following the consider factors:
“(1) field; technique’s general acceptance The in the “(2) stature; expert’s qualifications The and “(3) The use which has been made of technique; the “(4) potential error; The rate of “(5) literature; specialized The existence of “(6) invention; novelty of the “(7) technique The extent to which the relies on the sub- jective interpretation of the at expert.” 297 Or 417. may observed, footnote,
The court also be a other that factors analogy including relevant, to scientific tech- other niques safeguards presence admissible, whose results are of technique, in the characteristics of the the nature and clarity simplicity adduced, breadth of the inference technique described, with which the can and the avail- be ability experts technique. of other to test and evaluate the Id. designed guide at 417-18 n 5. The factors are serve as a trial, similarly admissibility testimony At the state defended the provided process ground picture grooming generally on the a it context for defendant’s in this actions case: [z.e., “[Glenerally speaking, people up all abusers] sex don’t of a sudden run somebody many fondling They engage process them. slow and start in a times them, liked, maybe touching that involves that is involves not touching eventually inappropriate but that’s leads to more serious touch- * * * exactly leading par-
ing, up which is indeed what this man was ticular case.” They evaluating not, check- however, a the evidence. Id. are to be for list; all factors must be satisfied not (“The App Hilaire, Or at 112 Id.; see St. also admissible. checklist.”). guidelines, not a factors are testimony, Turning Knapp’s I conclude that actual satisfy requirements of Brown. fails to foundation general testimony anyone no from about the First, was there acceptance “grooming” descriptive term as a within pat- description “just Knapp for a testified that it is field. through, go generally some tern that offenders of behavior Knapp testify who uses more the than others.” did not about so originated, description, it it on what basis was whence accepted any generally developed field of whether it is inquiry. Second, use that is there was no about the only technique. again, generally testi- made Once pat- mony description uses the term as a is that Third, tern there in this case what behavior. admissibility. potential error *28 about the rate of does not favor Knapp certain testified that his conclusions about whether always, may “grooming” “tentative, are behavior constitute prediction interpretation this kind of because of behavior interpretation of kind of is an on the con- behavior based Fourth, text it is of the situation in which occurred.” there no any specialized subject groom- evidence of literature on the of ing only testimony professional The litera- behavior. about Knapp single unspecified ture article on is that wrote an topic Knapp of sex and that related treatment offenders general unspecified journals subject of sex reads on the testimony Fifth, offender treatment. there is no about the novelty application the use or the behavior classification of of Knapp Knapp’s testimony Sixth, that that described. was subjective grooming was and based classification of behavior light entirely interpretation expert on of an in almost only unique In short, case. circumstances of each admissibility Brown factor that favors the the evidence is Knapp expert sex treat- was an in field of offender admissibility. against weigh All other factors ment. Brown assuming Judge opinion that, even Deits’s insists Knapp’s applies, Hilaire, tes- our decision in St. Brown under disagree. timony issue Hilaire was is At St. admissible. admissibility testimony expert’s personal an about typical observations that certain behavior is abuse of child sex testimony He based victims. on his interviews alleged percent abuse, victims of 85 to 90 of whom were testimony to have known been abused. We held that the was significantly, “[m]ost [because admissible under expert] personally alleged had interviewed over 400 sex empirically abuse victims” who were known to have been App testifying Hilaire, St. abused. at 112-13. In about typical expert children, noted, the behavior of abused we “merely experience drew observations from his extensive interviewing them.” Id. at 113. contrast, is no there such record in this case.
Knapp grooming “just description pat- testified that is for a generally go through, tern of behavior offenders some Knapp more so than others.” The state elicited from no foun- testimony. significantly, was, dation for that There most no Knapp’s personal evidence that it was based on observation large empirically of a number individuals who are known engaged grooming may to have It behavior. well be that his grounded precisely personal such extensive experience. problem that, observation and unlike the in Hilaire, situation St. there is no such evidence in this case. result, As a reduces to a conclusion that unquantified percentage unquantified some of an number of unspecified “groomed” sex offenders of nature their victims. expert Moreover, in this case—and contrast to the testi- mony merely testify per- in St. did not from Hilaire — sonal He observation. testified he whether would conclude hypothetical engaged that a individual had put hypothetical behavior the basis of various facts before simply admitting him. There no foundation for that testi- mony under Brown.
Judge concurring opinion Deits’s takes me to task for failing methodology to focus on which arrived grooming. According at her, his conclusions about because Knapp’s testimony consisted of his observations of sexual only methodology- offenders, the real issue whether the accepted technique. App observation —is an scientific methodology accepted,” at 464. Because that is “well the con- opinion curring concludes that is admis- analysis, predicated sible. That however, Id. on several assumptions. false
First,
Judge Deits assumes that
exclusive focus
is the
scientific
analysis
validity
of the Brown
a particular
methodology and does not include the inferences drawn from
clear, however,
As
makes
that is
methodology.
O’Key
not
refers,
the case. Brown itself
as an additional appropriate
consideration,
to the “nature
and breadth of inferences
application
adduced” from the
of a particular methodology or
Brown,
Second, she assumes that con- Knapp’s testimony sisted solely of of his about reports observations offenders. As demonstrated, I have his went beyond that, well an including affirmative to a response hypothetical question about whether facts nearly identical to those in involved case involved grooming behavior to innocent opposed touching.
Third, Deits Judge assumes that the methodology involved this case —observation of only 40 offenders —is well She accepted. cites no authority It assumption. is, fact, precisely the sort of assumption we are not to make our performing function gatekeeping screening admissibility of scientific evidence. Brown requires the state to demonstrate that methodology applied this case is well accepted. The state did not do that this case.
I wish to emphasize that my conclusions are based on the state’s evidence in this case. I no express opinion whether, in some other case and on a complete more founda- record, tional grooming evidence might be admissible under Brown.
Wollheim, J., and J. Riggs, pro join in this tempore, dissent.