U.S. v. Traum, 60 M.J. 226

Core Criminal Law Subjects: Evidence: Balancing

1. however relevant and reliable an expert’s testimony might be, such evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Article 31

1. no person subject to the UCMJ may interrogate or request any statement from a person suspected of an offense without first warning that person in accordance with Article 31(b); interrogation includes any formal or informal questioning in which an incriminating response either is sought or is a reasonable consequence of such questioning

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Article 31

1. a request to take a polygraph may arise in a variety of circumstances related to interrogation; in each instance, the question will be whether an incriminating response is sought or is the reasonable consequence of the comment or remark; of course, an Article 31(b) rights advisement prior to such a question would remove the necessity for such analysis
2. in this case, a law enforcement agent’s request that the accused take a polygraph was not an interrogation or request for a statement within the meaning of Article 31, and did not require warnings, where the reasonable consequence of the request was not an incriminating response; the reasonable consequence of the agent’s question in the context presented was either yes or no; in addition, the polygraph and its operator were located in an adjacent room, and the agent’s objective was to encourage the accused to take a polygraph and not to ask questions that might serve as an investigative substitute for what the agents hoped to garner from the administration of the polygraph exam

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Invocation of Rights

1. the right to remain silent protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used; application of the privilege is not limited to persons in custody or charged with a crime; it may also be asserted by a suspect who is questioned during the investigation of a crime
2. this Court has established that if an individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease; in addition, the MCM provides that if a person chooses to exercise the privilege against self-incrimination, questioning must cease immediately
3. although no particular words or actions are required to exercise one’s Fifth Amendment right to silence, this Court has held that its invocation must be unequivocal before all questioning must stop
4. the accused’s response that she did not want to talk about the details of the night that her infant daughter died did not unequivocally invoke her right to remain silent as this response did not foreclose the possibility that she was willing to take a polygraph and discuss other aspects of the investigation, such as the child’s medical history or the manner in which she cared for her child

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. before expert testimony may be admitted, the following factors must be established by the proponent of such testimony: (A) the qualifications of the expert, (B) the subject matter of the expert testimony, (C) the basis for the expert testimony, (D) the legal relevance of the evidence, (E) the reliability of the evidence, and (F) whether the probative value of the testimony outweighs other considerations
2. expert testimony is admissible when scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue; the test is not whether the jury could reach some conclusion in the absence of the expert evidence, but whether the jury is qualified without such testimony to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject
3. generally, use of any characteristic profile as evidence of guilt or innocence in criminal trials is improper; profile evidence is evidence that presents a characteristic profile of an offender, such as a pedophile or child abuser, and then places the accused’s personal characteristics within that profile as proof of guilt
4. child abuse is an area where specialized knowledge regarding pediatric forensics and child abuse may indeed be helpful to members; children incur all sorts of injuries as they move through infancy to the toddler years and beyond; thus, a panel might well benefit from an understanding of the methodology doctors use to determine the cause of an infant’s injury; in the case of fatal child abuse, the value of such specialized knowledge is equally apparent; such information helps members discern the critical elements of testimony and place that testimony within an analytic framework; this information may also help disabuse members of preconceptions that might cloud their ability to focus on the evidence presented as opposed to preconceptions about the nature of the offense at issue
5. testimony of a forensic pediatrician in the prosecution of the accused for murder of her infant daughter that “[i]f a child is less than four years of age, the most common cause of trauma death is going to be child maltreatment,” and that “eighty percent of children who die, die from a one-time event,” did not constitute impermissible profile evidence, because it related to the characteristics of an infant victim rather than the accused; in addition, the statements fell within the rubric of specialized knowledge in the context of a general description of fatal child abuse that is useful to the members in understanding the evidence and determining a fact in question
6. evidence of battered child syndrome is often admitted to show that a particular injury is not accidental or is not consistent with the explanation offered therefor, but is instead the result of physical abuse by a person of mature strength
7. the ban on profile evidence exists because offering such evidence treads too closely to offering character evidence of an accused in order to prove that the accused acted in conformity with that evidence on a certain occasion and committed the criminal activity in question
8. testimony setting up a child battering profile must be distinguished from testimony focusing on the characteristics of a battered child; the former is irrelevant because it is not necessarily true that an accused is a batterer just because the individual fits a certain profile; however, the latter is often helpful in determining a fact in issue
9. testimony of a forensic pediatrician in the prosecution of the accused for murder of her infant daughter that “[o]verwhelmingly, the most likely person to kill a child is going to be his or her own biological parent,” was impermissible profile evidence because it clearly reached both the characteristics of the victim as well as the characteristics of the typical offender; while the pediatrician’s testimony did not come in the form of numeric probability, members might have been left with the impression that if the testimony indicated that the accused’s daughter died as a result of child abuse, the probability that she committed the offense was “overwhelming,” regardless of what specific evidence was presented; in essence, the statement placed a statistical probability on the likelihood that the accused committed the offense, and thus was impermissible profile evidence
10. MRE 703 allows experts to rest their opinion on sources such as personal knowledge, assumed facts, documents supplied by other experts, and the testimony of witnesses at trial
11. however relevant and reliable an expert’s testimony might be, such evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members

Core Criminal Law Subjects: Witnesses: Experts

1. before expert testimony may be admitted, the following factors must be established by the proponent of such testimony: (A) the qualifications of the expert, (B) the subject matter of the expert testimony, (C) the basis for the expert testimony, (D) the legal relevance of the evidence, (E) the reliability of the evidence, and (F) whether the probative value of the testimony outweighs other considerations
2. expert testimony is admissible when scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue; the test is not whether the jury could reach some conclusion in the absence of the expert evidence, but whether the jury is qualified without such testimony to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject
3. generally, use of any characteristic profile as evidence of guilt or innocence in criminal trials is improper; profile evidence is evidence that presents a characteristic profile of an offender, such as a pedophile or child abuser, and then places the accused’s personal characteristics within that profile as proof of guilt
4. child abuse is an area where specialized knowledge regarding pediatric forensics and child abuse may indeed be helpful to members; children incur all sorts of injuries as they move through infancy to the toddler years and beyond; thus, a panel might well benefit from an understanding of the methodology doctors use to determine the cause of an infant’s injury; in the case of fatal child abuse, the value of such specialized knowledge is equally apparent; such information helps members discern the critical elements of testimony and place that testimony within an analytic framework; this information may also help disabuse members of preconceptions that might cloud their ability to focus on the evidence presented as opposed to preconceptions about the nature of the offense at issue
5. testimony of a forensic pediatrician in the prosecution of the accused for murder of her infant daughter that “[i]f a child is less than four years of age, the most common cause of trauma death is going to be child maltreatment,” and that “eighty percent of children who die, die from a one-time event,” did not constitute impermissible profile evidence, because it related to the characteristics of an infant victim rather than the accused; in addition, the statements fell within the rubric of specialized knowledge in the context of a general description of fatal child abuse that is useful to the members in understanding the evidence and determining a fact in question
6. evidence of battered child syndrome is often admitted to show that a particular injury is not accidental or is not consistent with the explanation offered therefor, but is instead the result of physical abuse by a person of mature strength
7. the ban on profile evidence exists because offering such evidence treads too closely to offering character evidence of an accused in order to prove that the accused acted in conformity with that evidence on a certain occasion and committed the criminal activity in question
8. testimony setting up a child battering profile must be distinguished from testimony focusing on the characteristics of a battered child; the former is irrelevant because it is not necessarily true that an accused is a batterer just because the individual fits a certain profile; however, the latter is often helpful in determining a fact in issue
9. testimony of a forensic pediatrician in the prosecution of the accused for murder of her infant daughter that “[o]verwhelmingly, the most likely person to kill a child is going to be his or her own biological parent,” was impermissible profile evidence because it clearly reached both the characteristics of the victim as well as the characteristics of the typical offender; while the pediatrician’s testimony did not come in the form of numeric probability, members might have been left with the impression that if the testimony indicated that the accused’s daughter died as a result of child abuse, the probability that she committed the offense was “overwhelming,” regardless of what specific evidence was presented; in essence, the statement placed a statistical probability on the likelihood that the accused committed the offense, and thus was impermissible profile evidence
10. MRE 703 allows experts to rest their opinion on sources such as personal knowledge, assumed facts, documents supplied by other experts, and the testimony of witnesses at trial
11. however relevant and reliable an expert’s testimony might be, such evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in this case, any error in admitting a statement that was impermissible profile evidence was harmless where the statement was introduced after the accused’s confession had been admitted and presented to the members, and the critical question was whether the victim died by accidental or intentional asphyxiation, and not the identity of the perpetrator