U.S. v. Brooks, 64 M.J. 325

Core Criminal Law Subjects: Evidence: Character

1. profile evidence is defined as 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; generally, the use of any profile characteristic as evidence of guilt or innocence is improper at a criminal trial

Core Criminal Law Subjects: Evidence: Credibility

1. credibility quantification testimony implicates the very concerns underlying the prohibition against human lie detector testimony; it invades the province of the court members to determine the credibility of the victim and violates the limitations of MRE 608 on admissible testimony relating to truthfulness

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. an expert may testify about matters within his or her area of expertise where scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue; but an expert may not testify regarding the credibility or believability of a victim, or opine as to the guilt or innocence of an accused
2. three reasons support the prohibition against experts testifying as human lie detectors; first, determination of truthfulness exceeds the scope of a witness’s expertise, for the expert lacks specialized knowledge to determine if a child-sexual-abuse victim is telling the truth and therefore cannot assist the trier of fact as required under MRE 702 before expert testimony is permissible; second, such testimony violates the limitations of MRE 608; and third, human lie detector testimony encroaches into the exclusive province of the court members to determine the credibility of witnesses
3. an expert may testify as to what symptoms are found among children who have suffered sexual abuse and whether the child-witness has exhibited these symptoms; he or she may also discuss various patterns of consistency in the stories of child sexual abuse victims and compare those patterns with patterns in the victim’s story; however, to put an impressively qualified expert’s stamp of truthfulness on a witness’s story goes too far; an expert should not be allowed to go so far as to usurp the exclusive function of the court members to weigh the evidence and determine credibility
4. in a child sexual abuse case, where the government expert’s testimony suggested that there was better than a ninety-eight percent probability that the victim was telling the truth, such testimony was the functional equivalent of vouching for the credibility or truthfulness of the victim, and the military judge erred in admitting it; the error was plain and obvious, and it materially prejudiced the accused’s substantial rights where the case hinged on the victim’s credibility and medical testimony; accordingly, admitting this improper credibility quantification testimony was plain error

Core Criminal Law Subjects: Evidence: Opinion Testimony

1. where relevant, MRE 608 permits a witness with an adequate foundation to render an opinion or reveal the reputation of another witness for truthfulness
2. human lie detector testimony in which a witness offers an opinion as to whether a person was truthful in making a specific statement regarding a fact at issue in a case is inadmissible; neither a lay nor an expert witness has the foundation or expertise to opine that an individual is or is not telling the truth
3. three reasons support the prohibition against experts testifying as human lie detectors; first, determination of truthfulness exceeds the scope of a witness’s expertise, for the expert lacks specialized knowledge to determine if a child-sexual-abuse victim is telling the truth and therefore cannot assist the trier of fact as required under MRE 702 before expert testimony is permissible; second, such testimony violates the limitations of MRE 608; and third, human lie detector testimony encroaches into the exclusive province of the court members to determine the credibility of witnesses

Core Criminal Law Subjects: Evidence: Sexual Assault and Child Molestation

1. an expert may testify as to what symptoms are found among children who have suffered sexual abuse and whether the child-witness has exhibited these symptoms; he or she may also discuss various patterns of consistency in the stories of child sexual abuse victims and compare those patterns with patterns in the victim’s story; however, to put an impressively qualified expert’s stamp of truthfulness on a witness’s story goes too far; an expert should not be allowed to go so far as to usurp the exclusive function of the court members to weigh the evidence and determine credibility
2. in a child sexual abuse case, where the government expert’s testimony suggested that there was better than a ninety-eight percent probability that the victim was telling the truth, such testimony was the functional equivalent of vouching for the credibility or truthfulness of the victim, and the military judge erred in admitting it; the error was plain and obvious, and it materially prejudiced the accused’s substantial rights where the case hinged on the victim’s credibility and medical testimony; accordingly, admitting this improper credibility quantification testimony was plain error

Core Criminal Law Subjects: Witnesses: Experts

1. an expert may testify about matters within his or her area of expertise where scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue; but an expert may not testify regarding the credibility or believability of a victim, or opine as to the guilt or innocence of an accused
2. three reasons support the prohibition against experts testifying as human lie detectors; first, determination of truthfulness exceeds the scope of a witness’s expertise, for the expert lacks specialized knowledge to determine if a child-sexual-abuse victim is telling the truth and therefore cannot assist the trier of fact as required under MRE 702 before expert testimony is permissible; second, such testimony violates the limitations of MRE 608; and third, human lie detector testimony encroaches into the exclusive province of the court members to determine the credibility of witnesses
3. an expert may testify as to what symptoms are found among children who have suffered sexual abuse and whether the child-witness has exhibited these symptoms; he or she may also discuss various patterns of consistency in the stories of child sexual abuse victims and compare those patterns with patterns in the victim’s story; however, to put an impressively qualified expert’s stamp of truthfulness on a witness’s story goes too far; an expert should not be allowed to go so far as to usurp the exclusive function of the court members to weigh the evidence and determine credibility
4. in a child sexual abuse case, where the government expert’s testimony suggested that there was better than a ninety-eight percent probability that the victim was telling the truth, such testimony was the functional equivalent of vouching for the credibility or truthfulness of the victim, and the military judge erred in admitting it; the error was plain and obvious, and it materially prejudiced the accused’s substantial rights where the case hinged on the victim’s credibility and medical testimony; accordingly, admitting this improper credibility quantification testimony was plain error

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where an appellant has not preserved an objection to evidence by making a timely objection, that error will be forfeited in the absence of plain error
2. to demonstrate that relief is warranted under the plain error doctrine, an appellant must show that: (1) there was error; (2) the error was plain or obvious; and (3) the error was materially prejudicial to his substantial rights.
3. (in a child sexual abuse case, where the government expert’s testimony suggested that there was better than a ninety-eight percent probability that the victim was telling the truth, such testimony was the functional equivalent of vouching for the credibility or truthfulness of the victim, and the military judge erred in admitting it; the error was plain and obvious, and it materially prejudiced the accused’s substantial rights where the case hinged on the victim’s credibility and medical testimony; accordingly, admitting this improper credibility quantification testimony was

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

1. an appellate court reviews a military judge’s decision to admit expert testimony under an abuse of discretion standard
2. an appellate court’s standard of review for determining whether there is plain error is de novo