State v. Bolton

Under OEC 702, expert evidence is “scientific” when: (1) it is expressly presented to the jury as scientifically grounded; (2) "draws its convincing force from some principle of science"; or (3) "implies a grounding in methods and procedures of science" and is characterized as having the "persuasive appeal of science.” State v. Henley, 363 Or 284, 422 P3d 217 (2018).

Defendant appealed multiple convictions, including those of domestic violence. Defendant assigned error to the trial court’s admission of expert testimony, without scientific evidence, on counterintuitive behaviors of victims. The State cross-assigned error to the trial court’s determination that it failed to establish sufficient scientific evidence. On appeal, Defendant argued that a later decision, State v. Henley, 363 Or 284, 422 P3d 217 (2018), required similar testimony to be supported by scientific evidence. The State responded that there was sufficient scientific evidence provided pre-trial, but included literature for the first time on appeal to support this assertion. Under OEC 702, expert evidence is “scientific” when: (1) it is expressly presented to the jury as scientifically grounded; (2) "draws its convincing force from some principle of science"; or (3) "implies a grounding in methods and procedures of science" and is characterized as having the "persuasive appeal of science.” State v. Henley, 363 Or 284, 422 P3d 217 (2018). The Court declined to review new material on appeal and found the witness: (1) was presented as an expert in domestic violence based on her education and experience, (2) referenced professional sources of information, (3) described a concept that “was not common knowledge,” and (4) offered a “breadth of opinions” on matters of human behavior past common understanding. Because the testimony was scientific in nature, the trial court erred in admitting evidence without scientific foundation. Reversed and Remanded.