concurring.
I agree with the majority that defendant preserved the argument that the state failed to establish an adequate foundation under State v. Brown, 297 Or 404, 687 P2d 751 (1985), for the admission of Dr. Knapp’s testimony. I also agree that the disputed evidence is relevant under OEC 401. My disagreement with the majority is with its holding thát this is not “scientific evidence” as those terms are used in Brown. For the reasons discussed in Judge Landau’s dissent, in my view, we are compelled by existing case law to hold that this is scientific evidence and that an adequate foundation under Brown must be established for the admission of the evidence at issue here. However, as I will explain, it is my position that the case law establishes that Brown is to be applied in a flexible manner depending on the nature of the particular evidence. Applying the Brown factors here in that manner, I would hold that an adequate foundation was established.
As noted above, I believe that Judge Landau is correct that the Oregon Supreme Court and this court have clearly held that psychological evidence, similar in nature to the evidence presented here, should be evaluated as ‘scientific evidence’ for purposes of admissibility under Brown. State v. Milbradt, 305 Or 621, 756 P2d 620 (1988); State v. Stevens, 147 Or App 592, 599, 938 P2d 780 (1997), rev allowed 326 Or 57 (1997); State v. Lawson, 127 Or App 392, 872 P2d 986, rev den 320 Or 110 (1994); State v. St. Hilaire, 97 Or App 108, 112, 775 P2d 876 (1989). The majority attempts to distinguish the holdings in the above cases on the basis that Knapp’s testimony here is offered for a different purpose and that the force of Knapp’s observations does not *461flow from psychological tests or other scientific principles, but from observations made in light of his training and experience. In my view, however, under the existing case law, this distinction does not lead to the conclusion that the Brown factors do not apply. Instead, this difference dictates how the Brown factors should be applied.
I would begin by emphasizing that, in applying the Brown test, the focus should not be on assessing the correctness of the scientific proposition that is being offered; that is a task for the trier of fact. Rather, the focus of the Brown inquiry should be on the scientific methodology underlying the scientific proposition. Scientific methodology involves “validation technique[s], consisting of the formulation of hypotheses, followed by observation or experimentation to test the hypotheses.” State v. O’Key, 321 Or 285, 292, 899 P2d 663 (1995). This court appeared to agree that scientific methodology was the proper focus when applying the Brown factors in our decisions in Jennings v. Baxter Healthcare Corp., 152 Or App 421, 428, 954 P2d 829, rev allowed 327 Or 317 (1998):
“[The seven Brown factors] are to be used to help the court to determine whether the methodology underlying the scientific evidence is sufficiently reliable. Moreover, the Brown factors focus on whether scientific evidence has a level of reliability sufficient for it to have probative value and are not to be used to determine whether ‘the evidence reflects or rests on a certain or indisputably correct scientific proposition.’ Boger v. Norris & Stevens, Inc., 109 Or App 90, 93, 818 P2d 947 (1991), rev den 312 Or 588 (1992).” (Emphasis in original.)
It is also important to recognize, as the majority does, that the Brown test was developed with more traditional scientific evidence in mind and, as a consequence, the application of the test to psychological evidence is not a precise fit. For example, four of the Brown factors use the terms “technique” or “invention.” The proffered evidence here, of course, does not involve a “technique” or “invention.” Rather, the evidence here consists of generalizations about human behavior made by a person trained in assessing particular kinds of human behavior. In the words of Knapp, the witness *462offering the disputed evidence here, grooming is “a description of a pattern of behavior that offenders generally go through, some more than others.”
The court in Brown, and in subsequent cases, appears to have recognized these incongruities in the application of Brown to psychological evidence by declaring that the Brown test is not a mechanical test for the admission of scientific evidence and in its admonition that the test should be applied in a flexible manner, depending on the characteristics of the particular evidence. O’Key, 321 Or at 300; Brown, 297 Or at 417-18. I would hold that, in applying the Brown test to psychological evidence, we need to take into account the nature of the particular evidence and, in particular, to focus on the methodology used to develop the evidence.
The manner in which I would apply the Brown factors differs from that used by Judge Landau in that his major focus is on the validity of the theory being offered by the expert here, which he labels as “grooming,” rather than on the scientific methodology that Knapp used to develop this theory. Judge Landau appears to consider grooming to be the “technique” or “invention” that we are evaluating and concludes that the Brown factors are not satisfied here because there is no evidence of the general acceptance of grooming as a technique, no evidence about the use that is made of grooming, the potential rate of error of grooming or the novelty of the use of the concept of grooming. Grooming, however, is the scientific theory here. In my view, we should evaluate how Knapp arrived at the premise that there is a generalized pattern of behavior called grooming. If the scientific methodology used in arriving at this theory is sound, and the evidence otherwise satisfies the relevancy test, it is for the trier of fact to determine the weight to be given to the evidence. OKey, 321 Or at 322.
This court used the above approach in applying the Brown factors to this type of evidence in St. Hilaire. That case involved the question of the admissibility of testimony by a police officer who specialized in sex abuse cases regarding typical behavior by child victims of sexual abuse. The witness offering the evidence in St. Hilaire, Robson, had worked for 14 years investigating crimes involving child abuse and child *463sexual exploitation. He had received extensive training on the subject of sexual abuse of children and had interviewed personally over 400 alleged sex abuse victims. The court in St. Hilaire noted at the outset that the Brown factors should serve as “guidelines,” not as a checklist. It then explained its application of Brown:
“In testifying about the typical behavior of sexually abused children, Robson merely drew observations from his extensive experience interviewing them. He was clearly qualified to do that. Moreover, because most of the children whom he had interviewed were known to have been abused, there was a low potential for error in his observations. Finally, because the testimony consisted of Robson’s factual observations, there was little room for subjective interpretation on his part.
“It is true that the state might have offered evidence on the existence of specialized literature in the field of the behavior of child abuse victims. Given that Robson’s testimony was based on first-hand experience, however, that foundation was unnecessary. None of the remaining Brown criteria applies to the type of testimony offered here.” St. Hilaire, 97 Or App at 113 (emphasis added).
A similar analysis is appropriate here. Defendant does not dispute that Knapp was an expert. Knapp has a masters’ degree in clinical psychology and has been licensed as a clinical psychologist in Oregon since May 1984. He has had specialized training in the treatment of persons who have been charged with or convicted of sexual crimes and has worked with sexual offenders during that time conducting group therapy, individual therapy and making psychological assessments of offenders. He has continued to take courses in the field of sexual abuse, has written on sex abuse issues and has testified on such issues. He testified that he presently is working in an offender treatment program. He explained:
“I have a treatment program in Ashland that has about 40 adult males involved in it at this time. The program is a two to three year program. It involves getting the person to make full disclosure about their sexual history, working with them to help them understand their high risk situation-thoughts, feelings and behaviors — that are antecedent, or come before, sexually acting out. It helps them understand the side of themselves that perhaps many of *464them don’t want to acknowledge, that leads them into doing this kind of offense in the first place. For example, personality characteristics like being self-centered, not looking at consequences to one’s actions, those kinds of things.”
Knapp’s testimony regarding the pattern of behavior that he describes as grooming was drawn from his observations based on his training and personal experience. He was clearly qualified to so testify. Knapp’s testimony consisted mostly of factual observations about the behavior of sexual offenders. Although Knapp’s generalizations included some subjective interpretation, for the most part, his testimony consisted of objective observations of certain behavior that he had observed in sexual offenders. The technique used to develop Knapp’s proposition, namely, observation and assessment of sexual offenders by a person with training and experience, is certainly a well-accepted method of developing psychological evidence. As with most techniques associated with psychological evidence, this technique does not readily lend itself to providing objective, empirical data on which to base a potential rate of error, as do more traditional scientific tests. There likely is specialized literature on the subject of grooming, but none was introduced here. The Brown factor regarding the “novelty of the invention” is not particularly meaningful here, as we are not evaluating an invention.
After considering the above factors, and in view of the nature of this evidence, I would hold that an adequate foundation has been established under Brown for the admission of the evidence. Further, as noted above, I agree with the majority that the evidence is relevant under OEC 401. The remaining question is whether the evidence, even though relevant, should be excluded under OEC 403, because it is unfairly prejudicial. The application of OEC 403 was explained by the court in Brown:
“This rule requires trial courts and, in some cases, appellate courts to evaluate the degree to which the trier of fact may be overly impressed or prejudiced by a perhaps misplaced aura of reliability or validity of the evidence, thereby leading the trier of fact to abdicate its role of critical assessment. See 3 Weinstein’s, supra 702-19.” 297 Or at 439.
*465The court in Brown went on to conclude that because polygraph evidence has “an aura of scientific infallibility” and goes directly to the essence of the trial process, namely, the truthfulness of the witnesses and the defendant, it must be excluded as unfairly prejudicial.
In evaluating here whether the trier of fact will be overimpressed by the disputed evidence, again I believe that we need to take into account the nature of this evidence. In particular, we should consider the difference between the impact of psychological evidence versus more traditional scientific evidence. The impact of more traditional scientific evidence, or what is often referred to as “hard scientific” evidence, is discussed by one commentator.1
“The particular concern about juries and ‘hard’ scientific evidence traditionally covered by the Frye test is that juries are not in a position to fairly and intelligently weigh evidence when the key to understanding the evidence is locked up in some inscrutable device or process which cannot be cross-examined. Additionally, the evidence by its ‘scientific’ nature may tend to elicit unquestioning juror acceptance. Where the jury is in the position of either being virtually compelled to accept the validity of the evidence because it cannot effectively be cross-examined or irrationally wanting to believe the evidence simply because it appears to be unassailably ‘scientific’, the Frye test seeks to assure that the evidence is reliable. The general acceptance by the scientific community serves to compensate for the jury’s inability to fairly weigh the evidence by at least assuring that the jury is not likely to be misguided by placing reliance on the evidence.” David McCord, Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 Or L Rev 19, 85 (1987).
"While juries likely do give some deference to psychological evidence, such evidence does not consistently have the *466same effect on jurors as hard scientific evidence. Psychological evidence generally is not information that a juror is compelled to accept because it is inscrutable and difficult to cross-examine. Psychological evidence is most often derived from observations of human behavior. Jurors often may draw, at least to some extent, from their own life experience in assessing the reliability of such evidence and meaningful cross-examination is often available to assist the trier of fact in assessing the reliability of the evidence.
As the court explained in O’Key, “unfair prejudice” under OEC 403 does not mean that the evidence is harmful to a party’s case:
“In the context of OEC 403, ‘unfair prejudice’ does not mean ‘evidence is harmful to the opponent’s case — a central reason for offering evidence.’ [State v.] Hampton, 317 Or [251,] 259 n 15, [855 P2d 621 (1993)]. Rather, it means an undue tendency to suggest a decision on an improper basis, commonly although not always, an emotional one. State v. Pinnell, 311 Or 98, 105-06 n 12, 806 P2d 110 (1991). ‘Unfair prejudice’ describes a situation in which the preferences of the trier of fact are affected by reasons essentially unrelated to the persuasive power of the evidence to establish the fact of consequence.” 321 Or at 321.
I would hold that the evidence here is not unfairly prejudicial. The existence of a pattern of behavior — labeled as grooming — provides one possible explanation for defendant’s acts of touching the alleged victims. Knapp never testified that defendant did engage in grooming. Rather, he described grooming as a general pattern of behavior and indicated that whether the pattern existed in a particular case must be determined based on the “context of the situation.” As recognized by the court in O’Key, the jury is capable of evaluating such evidence. 321 Or at 305. For all of the above reasons, I would hold that the trial court properly admitted Knapp’s testimony.
Armstrong, J., joins in this opinion.These comments were made in the context of discussing the acceptability of the Frye test. However, the point of the discussion regarding the impact of “hard scientific evidence” on the jury is equally applicable here.