U.S. v. Billings, 61 M.J. 163

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. under MRE 702, an expert witness may testify if he or she is qualified and testimony in his or her area of knowledge would be helpful
2. the proponent of expert testimony must demonstrate an expert’s qualifications by establishing six factors: (1) the qualifications of the expert; (2) the subject matter of the expert testimony; (3) the basis for the expert testimony; (4) the legal relevance of the evidence; (5) the reliability of the evidence; and (6) that the probative value of the expert’s testimony outweighs the other considerations outlined in MRE 403
3. the test for admissibility of expert testimony is not whether a jury could reach any conclusion without expert help, 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
4. the military judge did not abuse his discretion in permitting a jeweler to testify as an expert witness concerning the characteristics of a watch stolen in an armed robbery, notwithstanding the fact that the jeweler did not sell the watch in question and had never actually seen one, because of the jeweler’s specialized knowledge of the subject in relation to that of the members
5. the trial judge’s gatekeeping function is to ensure that any and all expert testimony is not only relevant, but reliable; this gatekeeping function applies not only to testimony based on scientific knowledge, but also to testimony based on technical and other specialized knowledge
6. when expert testimony’s factual basis, data, principles, methods, or their application are called sufficiently into question, the trial judge must determine whether the testimony has a reliable basis in the knowledge and experience of the relevant discipline; a trial court should consider the four specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony: (1) whether a theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error in using a particular scientific technique and the standards controlling the technique’s operation; and (4) whether the theory or technique has been generally accepted in the particular scientific field
7. under Daubert, the proponent of expert testimony must be able to establish both the expert’s qualifications and the reliability of the expert’s basis for forming an opinion; the proponent of evidence has the burden of showing that it is admissible
8. the military judge abused his discretion in allowing a jeweler qualified as an expert witness to determine from photos that the watch appellant wore in the government’s photographic exhibits was solid gold rather than gold plate where the government failed to satisfy its burden of establishing the reliability of the expert’s opinion; the government met none of the four Daubert criteria for determining the reliability of expert testimony, nor did it identify any alternative indicia of reliability.
9. the military judge did not abuse his discretion when he permitted a jeweler as an expert witness to point out the characteristics of a watch in an advertisement for that watch, and then turn to the government’s photographic exhibits and indicate which of those characteristics could be found in the watch worn by appellant in the photos; although appellant argued that because the photos of her were undated, there could be no inference that she was involved in the robbery in which the watch was stolen, and that the jeweler was too unfamiliar with the actual type of watch to be able to identify it reliably through photos alone, because the jeweler’s knowledge met the standard required by MRE 702, these arguments were relevant to the weight of the evidence rather than to its admissibility

Core Criminal Law Subjects: Witnesses: Experts

1. under MRE 702, an expert witness may testify if he or she is qualified and testimony in his or her area of knowledge would be helpful
2. the proponent of expert testimony must demonstrate an expert’s qualifications by establishing six factors: (1) the qualifications of the expert; (2) the subject matter of the expert testimony; (3) the basis for the expert testimony; (4) the legal relevance of the evidence; (5) the reliability of the evidence; and (6) that the probative value of the expert’s testimony outweighs the other considerations outlined in MRE 403
3. the test for admissibility of expert testimony is not whether a jury could reach any conclusion without expert help, 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
4. the military judge did not abuse his discretion in permitting a jeweler to testify as an expert witness concerning the characteristics of a watch stolen in an armed robbery, notwithstanding the fact that the jeweler did not sell the watch in question and had never actually seen one, because of the jeweler’s specialized knowledge of the subject in relation to that of the members
5. the trial judge’s gatekeeping function is to ensure that any and all expert testimony is not only relevant, but reliable; this gatekeeping function applies not only to testimony based on scientific knowledge, but also to testimony based on technical and other specialized knowledge
6. when expert testimony’s factual basis, data, principles, methods, or their application are called sufficiently into question, the trial judge must determine whether the testimony has a reliable basis in the knowledge and experience of the relevant discipline; a trial court should consider the four specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony: (1) whether a theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error in using a particular scientific technique and the standards controlling the technique’s operation; and (4) whether the theory or technique has been generally accepted in the particular scientific field
7. under Daubert, the proponent of expert testimony must be able to establish both the expert’s qualifications and the reliability of the expert’s basis for forming an opinion; the proponent of evidence has the burden of showing that it is admissible
8. the military judge abused his discretion in allowing a jeweler qualified as an expert witness to determine from photos that the watch appellant wore in the government’s photographic exhibits was solid gold rather than gold plate where the government failed to satisfy its burden of establishing the reliability of the expert’s opinion; the government met none of the four Daubert criteria for determining the reliability of expert testimony, nor did it identify any alternative indicia of reliability.
9. the military judge did not abuse his discretion when he permitted a jeweler as an expert witness to point out the characteristics of a watch in an advertisement for that watch, and then turn to the government’s photographic exhibits and indicate which of those characteristics could be found in the watch worn by appellant in the photos; although appellant argued that because the photos of her were undated, there could be no inference that she was involved in the robbery in which the watch was stolen, and that the jeweler was too unfamiliar with the actual type of watch to be able to identify it reliably through photos alone, because the jeweler’s knowledge met the standard required by MRE 702, these arguments were relevant to the weight of the evidence rather than to its admissibility

Trial Stages: Appeals: Harmless / Prejudicial Error

1. although the military judge erred in allowing a jeweler to testify on the type of gold used in the watch pictured in government photos, this error was harmless where the defense counsel, through voir dire and cross-examination, was able to demonstrate the shortcomings of both the jeweler’s expertise and his method of comparison, and where the government marshaled strong evidence apart from the jeweler’s testimony that the watch in the photos was the watch stolen in the robbery; we need not decide whether the military judge properly performed his gatekeeping function, because any error in admitting this evidence was harmless in light of the overwhelming evidence against appellant

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. this Court reviews military judges’ decisions regarding expert witnesses for abuse of discretion
2. the trial judge enjoys a great deal of flexibility in his or her gatekeeping role on the admissibility of expert testimony
3. when this Court reviews a military judge’s decision for an abuse of discretion, the challenged action must be found to be arbitrary, fanciful, clearly unreasonable, or clearly erroneous in order to be invalidated on appeal