State v. Henley

When evaluating the scientific validity of testimony under OEC 702, some subject matter may require a more flexible evaluation, utilizing criteria like 1) whether the testimony is generally accepted in the field, 2) whether there is supporting literature for the testimony, and 3) whether the testimony is inordinately novel or subjective. State v. Perry, 347 Or 110, 122, 218 P3d 95 (2009).

Defendant appealed a conviction of first-degree sexual abuse and attempted first-degree sodomy. In the initial appeal, the Supreme Court remanded the case for determination of whether the expert testimony had the requisite scientific foundation under OEC 702. On remand, the trial court performed a Brown/ O’Key hearing and held the evidence was admissible. On the second appeal, Defendant again assigned error to the trial court, claiming that the evidence was admitted for forensic purposes, not for behavioral science purposes, and therefore lacked the necessary and coordinating scientific foundation. When evaluating the scientific validity of testimony under OEC 702, some subject matter may require a more flexible evaluation, utilizing criteria like 1) whether the testimony is generally accepted in the field, 2) whether there is supporting literature for the testimony, and 3) whether the testimony is inordinately novel or subjective. State v. Perry, 347 Or 110, 122, 218 P3d 95 (2009). Although improperly used in the State’s closing statement, the Court held the use of the testimony in question was not the basis for original admittance. The trial court did not err in admitting the evidence for the purpose of introducing the general concept of grooming, which was supported by the State’s offering of scientific papers which proved the general acceptance of the concept, the existence of literature, and that grooming was not a novel concept. Affirmed.