U.S. v. Foster, 64 M.J. 331

Military Justice Personnel: Military Judge: Instructions

1. within certain bounds, military judges can comment upon and summarize evidence admitted in the form of expert witness testimony; RCM 920(e)(7) states that instructions on findings shall include such other explanations, descriptions, or directions as may be necessary and which are properly requested by a party or which the military judge determines, sua sponte, should be given; in moving beyond benchbook instructions, however, military judges must use caution not to do so in a manner that either places undue emphasis on or minimizes the importance of expert testimony

Military Justice Personnel: Military Judge: Conduct/Misconduct

1. a military judge’s impartiality is crucial to the conduct of a legal and fair court-martial; the military judge may participate actively in proceedings to assure that court-martial members receive the information that they need to determine whether the accused is proven guilty; however, the military judge must take care not to become an advocate for either party
2. there is a strong presumption that a military judge is impartial in the conduct of judicial proceedings
3. the accused did not establish that the military judge was impartial based on an allegation that he improperly limited the testimony of the defense expert when he ruled that she could not reveal her personal assessment of a child victim’s credibility, where such limitation on the testimony of the expert was appropriate; testimony about a victim’s credibility or its functional equivalent is not admissible
4. a military judge can and sometimes must ask questions in order to clear up uncertainties in the evidence or to develop the facts further; because jurors are ever watchful of the words that fall from him, however, a military judge must be circumspect in what he says to the parties and in how he examines witnesses
5. military judges should take care to elicit information in a neutral manner and to avoid the kind of approach that closely resembles the tenor of cross-examination
6. the accused did not establish that the military judge was impartial based on an allegation that he conducted a hostile examination of the defense expert in front of the members; although the tenor used by the military judge in questioning the defense expert closely resembled cross-examination, nevertheless, judging from the standpoint of a reasonable observer, taken as a whole in the context of this trial, the limited exchange between the military judge and the defense expert cast no doubt upon the court-martial’s legality, fairness, and impartiality
7. expert testimony is appropriate where scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue; when an individual testifies as an expert under MRE 702, it is precisely because the military judge has found that individual to hold the requisite qualifications of an expert; the members are entitled to be informed of that designation and a military judge must not impose his or her own views to either diminish or enhance that important role
8. the accused did not establish that the military judge was impartial based on an allegation that the military judge’s expert witness instruction essentially told the members that the defense expert’s testimony was worthless because it (1) failed to identify the defense expert as an expert, (2) inaccurately summarized her testimony, and (3) characterized her testimony as educational and that of the government’s expert as specialized; although the military judge erred in failing to use the term expert and by substituting that term with the terms specialized and educational, the instruction did not raise any reasonable doubt about the military judge’s impartiality, where the judge’s refusal to use the term expert applied equally to both parties’ witnesses and the term educational testimony was not critical of the defense expert or prejudicial to the accused’s defense
9. the accused did not establish that the military judge was biased against the defense expert based on comments made by the judge about that expert outside the presence of the members; although the military judge made several intemperate and inappropriate statements concerning the defense expert’s experience, ego, and the need to control her testimony, this personal expression of irritation did not impact the accused’s right to a fair trial in light of the fact that the comments were not heard by the court-martial members

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. an expert may testify about symptoms that are generally found among children who have suffered sexual abuse and whether the child-witness has exhibited these symptoms; an expert may also testify about patterns of consistency generally found in the stories of victims as compared to patterns in the victim’s story; however, there is a fine line between admissible testimony in this area and testimony about a victim’s credibility or its functional equivalent, which is not admissible
2. expert testimony is appropriate where scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue; when an individual testifies as an expert under MRE 702, it is precisely because the military judge has found that individual to hold the requisite qualifications of an expert; the members are entitled to be informed of that designation and a military judge must not impose his or her own views to either diminish or enhance that important role

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

1. an expert may testify about symptoms that are generally found among children who have suffered sexual abuse and whether the child-witness has exhibited these symptoms; an expert may also testify about patterns of consistency generally found in the stories of victims as compared to patterns in the victim’s story; however, there is a fine line between admissible testimony in this area and testimony about a victim’s credibility or its functional equivalent, which is not admissible

Core Criminal Law Subjects: Witnesses: Experts

1. an expert may testify about symptoms that are generally found among children who have suffered sexual abuse and whether the child-witness has exhibited these symptoms; an expert may also testify about patterns of consistency generally found in the stories of victims as compared to patterns in the victim’s story; however, there is a fine line between admissible testimony in this area and testimony about a victim’s credibility or its functional equivalent, which is not admissible
2. expert testimony is appropriate where scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue; when an individual testifies as an expert under MRE 702, it is precisely because the military judge has found that individual to hold the requisite qualifications of an expert; the members are entitled to be informed of that designation and a military judge must not impose his or her own views to either diminish or enhance that important role

Trial Stages: Merits: Instructions › Generally

1. within certain bounds, military judges can comment upon and summarize evidence admitted in the form of expert witness testimony; RCM 920(e)(7) states that instructions on findings shall include such other explanations, descriptions, or directions as may be necessary and which are properly requested by a party or which the military judge determines, sua sponte, should be given; in moving beyond benchbook instructions, however, military judges must use caution not to do so in a manner that either places undue emphasis on or minimizes the importance of expert testimony

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

1. there is a strong presumption that a military judge is impartial in the conduct of judicial proceedings
2. when a military judge’s impartiality is challenged on appeal, the test is whether, taken as a whole in the context of the trial, the court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions; this test is applied from the viewpoint of the reasonable person observing the proceedings
3. failure to object at trial to alleged partisan action on the part of a military judge may present an inference that the defense believed that the military judge remained impartial