U.S. v. Eggen, 51 M.J. 159

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. expert opinion on whether a victim of a sexual assault was “faking” emotions and being truthful did not amount to plain error when placed in context and where military judge gave specifically tailored instruction emphasizing that the members alone must determine whether a crime occurred in a specific way and whether the alleged victim or witness is credible
2. actions of defense counsel in cross-examining expert on whether a victim of a sexual assault was “faking” emotions and being truthful opened the door for prosecutor to rehabilitate his expert’s testimony, even to extent of having expert opine that the victim was not faking – defense counsel proffered no motion to strike any part of the defense cross-examination and did not request any curative instructions

Core Criminal Law Subjects: Evidence: Waiver

1. failure to object to testimony of expert on the basis that expert had exceeded the area of his expertise waived that issue for appeal

Core Criminal Law Subjects: Witnesses: Experts

1. expert opinion on whether a victim of a sexual assault was “faking” emotions and being truthful did not amount to plain error when placed in context and where military judge gave specifically tailored instruction emphasizing that the members alone must determine whether a crime occurred in a specific way and whether the alleged victim or witness is credible
2. actions of defense counsel in cross-examining expert on whether a victim of a sexual assault was “faking” emotions and being truthful opened the door for prosecutor to rehabilitate his expert’s testimony, even to extent of having expert opine that the victim was not faking – defense counsel proffered no motion to strike any part of the defense cross-examination and did not request any curative instructions

Trial Stages: Appeals: Invited Error / Open Door

1. an appellant cannot create error and then take advantage of a situation of his own making; invited error provides no basis for relief
2. actions of defense counsel in cross-examining expert on whether a victim of a sexual assault was “faking” emotions and being truthful opened the door for prosecutor to rehabilitate his expert’s testimony, even to extent of having expert opine that the victim was not faking
3. defense attempt to explore with government expert whether victim of sexual assault was lying and whether the victim had a motive to lie induced prosecution cross-examination about motive of sexual offenders to lie

Trial Stages: Appeals: Preservation of Error / Plain Error

1. expert opinion on whether a victim of a sexual assault was “faking” emotions and being truthful did not amount to plain error when placed in context and where military judge gave specifically tailored instruction emphasizing that the members alone must determine whether a crime occurred in a specific way and whether the alleged victim or witness is credible

Trial Stages: Appeals: Waiver

1. failure to object to testimony of expert on the basis that expert had exceeded the area of his expertise waived that issue for appeal