U.S. v. Flesher, 73 M.J. 303

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. a trial judge has a special obligation to ensure that any and all scientific testimony is not only relevant, but reliable; this gatekeeping requirement is intended to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field
2. by RCM 801(a)(4), the military judge shall rule on all interlocutory questions and all questions of law raised during the court-martial; by RCM 801(f), all sessions involving rulings made by the military judge shall be made a part of the record; and by RCM 905(d), a motion made before pleas are entered shall be determined before pleas are entered unless the military judge for good cause orders that determination be deferred until trial of the general issue or after findings, and where factual issues are involved in determining a motion, the military judge shall state the essential findings on the record
3. objections made at trial may not be evaded or ignored; it is the duty of the military judge to affirmatively rule
4. it is necessary for the military judge to make a clear record; record dissertations are not expected but rather, a clear signal that the military judge applied the right law; while not required, where the military judge places on the record his analysis and application of the law to the facts, deference is clearly warranted; however, the reverse is also true; if the military judge fails to place his findings and analysis on the record, less deference will be accorded
5. a military judge is not always required to conduct a formal Daubert (509 US 579 (1993)) hearing or to precisely address each of the factors spelled out in Houser (36 MJ 392 (1993)) when deciding whether and how a proffered expert should testify; the inquiry is a flexible one; however, the analytical structure developed in the Houser and Daubert cases is quite helpful, both at the trial and at the appellate level, in determining the appropriateness of admitting expert testimony
6. a military judge is obligated to determine whether an expert witness’s testimony would be helpful to the panel; MRE 702 states that an expert witness may provide testimony if it will assist the trier of fact to understand the evidence or determine a fact in issue; thus, an expert may testify if his or her testimony is helpful; a suggested test for deciding when experts may be used is whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject
7. with respect to expert witness testimony, a trial judge must first assure himself or herself that a proffered expert is truly an expert
8. MRE 702 permits an expert to be qualified by reason of experience rather than skill, training, or education; in other words, experience in a field may offer another path to expert status; even so, the unremarkable observation that an expert may be qualified by experience does not mean that experience, standing alone, is sufficient foundation rendering reliable any conceivable opinion the expert may express; if the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion and how that experience is reliably applied to the facts; and the military judge should state on the record why he concludes that such a witness’s testimony is reliable
9. (expert testimony cannot be used solely to bolster the credibility of the government’s fact-witnesses by mirroring their version of events; and a military judge must distinguish between an expert witness whose testimony about behaviors of sexual assault victims that are subject to widely held misconceptions will be helpful to the trier of fact, and an expert witness whose testimony will simply mirror the specific facts of the case and serve only to bolster the credibility of a crucial fact witness (bolstering occurs before impeachment, that is when the proponent seeks to enhance the credibility of the witness before the witness is attacked)

Military Justice Personnel: Military Judge: Discretion

1. a military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law; an abuse of discretion exists where reasons or rulings of the military judge are clearly untenable and deprive a party of a substantial right such as to amount to a denial of justice; it does not imply an improper motive, willful purpose or intentional wrong
2. in this case, the military judge did not place sufficient evidence on the record to demonstrate that he acted within the bounds of his discretion when he authorized a sexual assault response coordinator (SARC) to testify as an expert; specifically, he did not affirmatively address the defense’s request for a Daubert (509 US 579 (1993)) hearing, did not address the Houser (36 MJ 392 (1993)) factors, did not explicitly deny on the record the defense’s motion to exclude the testimony of the SARC, did not provide any findings of fact, and did not apply the law to the facts to support his decision to admit the SARC’s expert testimony; furthermore, although an appropriately qualified expert witness may be able to testify why a sexual assault victim may or may not react in a particular manner, in the instant case, the trial counsel conceded that the SARC was not qualified to address the issue of why sexual assault victims may or may not behave in a certain way, and the military judge specifically ruled that the SARC could not testify on this point; and yet, the SARC clearly did testify about why sexual assault victims may act in a certain manner, and the trial counsel did not rein her in and the military judge did not issue a curative instruction; under these circumstances, it was error to permit the SARC to testify as she did because her testimony went beyond the scope of her expertise as it was agreed to by the parties in advance of trial; also, the military judge did not state on the record why he concluded that the SARC’s testimony was reliable, and there is no virtually no evidence in the record that the military judge weighed the probative value of the SARC’s testimony against its potential prejudicial effect; the purported expert testimony in this case had little probative value because the panel members could understand what had happened based on the alleged victim’s own explanation of her actions and because the observations of the expert witness were almost common knowledge; and in this classic “he said–she said” case, with the two primary witnesses giving diametrically opposed testimony on the critical issue of whether the sexual intercourse was consensual, the prejudicial effect of the SARC’s testimony was quite likely substantial where it served to bolster the testimony of the alleged victim’s testimony about why she did not struggle more with her assailant

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. a trial judge has a special obligation to ensure that any and all scientific testimony is not only relevant, but reliable; this gatekeeping requirement is intended to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field
2. six factors (Houser, 36 MJ 392 (1993)) must be established for expert testimony to be admissible: (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) whether the probative value of the testimony outweighs other considerations; Daubert (509 US 579 (1993)) provides more detailed guidance on the fourth and fifth prongs pertaining to relevance and reliability
3. a military judge is obligated to determine whether an expert witness’s testimony would be helpful to the panel; MRE 702 states that an expert witness may provide testimony if it will assist the trier of fact to understand the evidence or determine a fact in issue; thus, an expert may testify if his or her testimony is helpful; a suggested test for deciding when experts may be used is whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject
4. expert testimony about the sometimes counterintuitive behaviors of sexual assault or sexual abuse victims is allowed because it assists jurors in disabusing themselves of widely held misconceptions; allowing expert testimony on rape trauma syndrome where it helps the trier of fact understand common behaviors of sexual assault victims that might otherwise seem counterintuitive or consistent with consent is appropriate
5. in this case, the qualifications of a sexual assault response coordinator were not sufficiently established on the record to permit her to testify as an expert witness on the counterintuitive behavior of sexual assault victims; in appropriate circumstances, a military judge may allow an expert witness to testify regarding how victims may or may not behave following a sexual assault; further, an appropriately qualified expert witness also may be able to testify why a sexual assault victim may or may not react in a particular manner; but in the instant case, the trial counsel conceded that his witness was not qualified to address the issue of why sexual assault victims may or may not behave in a certain way, and the military judge specifically ruled that the witness could not testify on this point; and yet, the witness clearly did testify about why sexual assault victims may act in a certain manner, and the trial counsel did not rein her in and the military judge did not issue a curative instruction; an expert witness may not offer opinions that exceed the scope of the witness’s expertise; in this case, under these circumstances, it was error to permit the witness to testify as she did because her testimony went beyond the scope of her expertise as it was agreed to by the parties in advance of trial
6. under MRE 703, an expert’s opinion may be based upon personal knowledge, assumed facts, documents supplied by other experts, or even listening to the testimony at trial
7. the government, as the proponent of a expert witness’s testimony, has the burden of demonstrating the reliability of that witness’s testimony; to show that an expert’s opinion is connected to existing data by more than the ipse dixit of the expert, the government may rely on the four Daubert (509 US 579 (1993)) reliability factors or on alternative indicia of reliability; the four reliability factors set out in Daubert are: (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
8. MRE 702 permits an expert to be qualified by reason of experience rather than skill, training, or education; in other words, experience in a field may offer another path to expert status; even so, the unremarkable observation that an expert may be qualified by experience does not mean that experience, standing alone, is sufficient foundation rendering reliable any conceivable opinion the expert may express; if the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion and how that experience is reliably applied to the facts; and the military judge should state on the record why he concludes that such a witness’s testimony is reliable
9. (expert testimony cannot be used solely to bolster the credibility of the government’s fact-witnesses by mirroring their version of events; and a military judge must distinguish between an expert witness whose testimony about behaviors of sexual assault victims that are subject to widely held misconceptions will be helpful to the trier of fact, and an expert witness whose testimony will simply mirror the specific facts of the case and serve only to bolster the credibility of a crucial fact witness (bolstering occurs before impeachment, that is when the proponent seeks to enhance the credibility of the witness before the witness is attacked)

Core Criminal Law Subjects: Evidence: Relevance

1. testimony on the counterintuitive behaviors of rape victims is relevant

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

1. expert testimony about the sometimes counterintuitive behaviors of sexual assault or sexual abuse victims is allowed because it assists jurors in disabusing themselves of widely held misconceptions; allowing expert testimony on rape trauma syndrome where it helps the trier of fact understand common behaviors of sexual assault victims that might otherwise seem counterintuitive or consistent with consent is appropriate
2. in this case, the qualifications of a sexual assault response coordinator were not sufficiently established on the record to permit her to testify as an expert witness on the counterintuitive behavior of sexual assault victims; in appropriate circumstances, a military judge may allow an expert witness to testify regarding how victims may or may not behave following a sexual assault; further, an appropriately qualified expert witness also may be able to testify why a sexual assault victim may or may not react in a particular manner; but in the instant case, the trial counsel conceded that his witness was not qualified to address the issue of why sexual assault victims may or may not behave in a certain way, and the military judge specifically ruled that the witness could not testify on this point; and yet, the witness clearly did testify about why sexual assault victims may act in a certain manner, and the trial counsel did not rein her in and the military judge did not issue a curative instruction; an expert witness may not offer opinions that exceed the scope of the witness’s expertise; in this case, under these circumstances, it was error to permit the witness to testify as she did because her testimony went beyond the scope of her expertise as it was agreed to by the parties in advance of trial
3. testimony on the counterintuitive behaviors of rape victims is relevant
4. (expert testimony cannot be used solely to bolster the credibility of the government’s fact-witnesses by mirroring their version of events; and a military judge must distinguish between an expert witness whose testimony about behaviors of sexual assault victims that are subject to widely held misconceptions will be helpful to the trier of fact, and an expert witness whose testimony will simply mirror the specific facts of the case and serve only to bolster the credibility of a crucial fact witness (bolstering occurs before impeachment, that is when the proponent seeks to enhance the credibility of the witness before the witness is attacked)

Core Criminal Law Subjects: Witnesses: Experts

1. a trial judge has a special obligation to ensure that any and all scientific testimony is not only relevant, but reliable; this gatekeeping requirement is intended to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field
2. six factors (Houser, 36 MJ 392 (1993)) must be established for expert testimony to be admissible: (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) whether the probative value of the testimony outweighs other considerations; Daubert (509 US 579 (1993)) provides more detailed guidance on the fourth and fifth prongs pertaining to relevance and reliability
3. a military judge is obligated to determine whether an expert witness’s testimony would be helpful to the panel; MRE 702 states that an expert witness may provide testimony if it will assist the trier of fact to understand the evidence or determine a fact in issue; thus, an expert may testify if his or her testimony is helpful; a suggested test for deciding when experts may be used is whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject
4. expert testimony about the sometimes counterintuitive behaviors of sexual assault or sexual abuse victims is allowed because it assists jurors in disabusing themselves of widely held misconceptions; allowing expert testimony on rape trauma syndrome where it helps the trier of fact understand common behaviors of sexual assault victims that might otherwise seem counterintuitive or consistent with consent is appropriate
5. in this case, the qualifications of a sexual assault response coordinator were not sufficiently established on the record to permit her to testify as an expert witness on the counterintuitive behavior of sexual assault victims; in appropriate circumstances, a military judge may allow an expert witness to testify regarding how victims may or may not behave following a sexual assault; further, an appropriately qualified expert witness also may be able to testify why a sexual assault victim may or may not react in a particular manner; but in the instant case, the trial counsel conceded that his witness was not qualified to address the issue of why sexual assault victims may or may not behave in a certain way, and the military judge specifically ruled that the witness could not testify on this point; and yet, the witness clearly did testify about why sexual assault victims may act in a certain manner, and the trial counsel did not rein her in and the military judge did not issue a curative instruction; an expert witness may not offer opinions that exceed the scope of the witness’s expertise; in this case, under these circumstances, it was error to permit the witness to testify as she did because her testimony went beyond the scope of her expertise as it was agreed to by the parties in advance of trial
6. under MRE 703, an expert’s opinion may be based upon personal knowledge, assumed facts, documents supplied by other experts, or even listening to the testimony at trial
7. the government, as the proponent of a expert witness’s testimony, has the burden of demonstrating the reliability of that witness’s testimony; to show that an expert’s opinion is connected to existing data by more than the ipse dixit of the expert, the government may rely on the four Daubert (509 US 579 (1993)) reliability factors or on alternative indicia of reliability; the four reliability factors set out in Daubert are: (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
8. MRE 702 permits an expert to be qualified by reason of experience rather than skill, training, or education; in other words, experience in a field may offer another path to expert status; even so, the unremarkable observation that an expert may be qualified by experience does not mean that experience, standing alone, is sufficient foundation rendering reliable any conceivable opinion the expert may express; if the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion and how that experience is reliably applied to the facts; and the military judge should state on the record why he concludes that such a witness’s testimony is reliable
9. (expert testimony cannot be used solely to bolster the credibility of the government’s fact-witnesses by mirroring their version of events; and a military judge must distinguish between an expert witness whose testimony about behaviors of sexual assault victims that are subject to widely held misconceptions will be helpful to the trier of fact, and an expert witness whose testimony will simply mirror the specific facts of the case and serve only to bolster the credibility of a crucial fact witness (bolstering occurs before impeachment, that is when the proponent seeks to enhance the credibility of the witness before the witness is attacked)

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Appointment of experts

1. the government, as the proponent of a expert witness’s testimony, has the burden of demonstrating the reliability of that witness’s testimony; to show that an expert’s opinion is connected to existing data by more than the ipse dixit of the expert, the government may rely on the four Daubert (509 US 579 (1993)) reliability factors or on alternative indicia of reliability; the four reliability factors set out in Daubert are: (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

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Generally

1. while not required in making a ruling, where the military judge places on the record his analysis and application of the law to the facts, deference is clearly warranted; however, the reverse is also true; if the military judge fails to place his findings and analysis on the record, less deference will be accorded

Trial Stages: Pretrial: Motions

1. RCM 905(d), a motion made before pleas are entered shall be determined before pleas are entered unless the military judge for good cause orders that determination be deferred until trial of the general issue or after findings, and where factual issues are involved in determining a motion, the military judge shall state the essential findings on the record

Trial Stages: Initial Review: Preparation of Record of Trial

1. by RCM 801(f), all sessions involving rulings made by the military judge shall be made a part of the record

Trial Stages: Appeals: Harmless / Prejudicial Error

1. under Article 59(a), UCMJ, a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; the test for nonconstitutional evidentiary error is whether the error had a substantial influence on the findings; importantly, it is the government that bears the burden of demonstrating that the admission of erroneous evidence is harmless; to determine whether the government has carried its burden, an appellate court weighs four factors: (1) the strength of the government’s case; (2) the strength of the defense’s case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question
2. in this case, the central question at trial was whether the alleged victim consented to the sexual intercourse or whether appellant forced himself on her or took advantage of her drunken state; the government’s evidence on this issue consisted of the alleged victim’s clear testimony that she was drunk, that she did not invite appellant to her room, that she did not consent to have sex with him, and that she repeatedly told him “no;” she also testified that although she struggled with appellant, she did not fight back more fiercely or call out for help because she was drunk, confused, scared, and embarrassed and that she did not report the incident until she telephoned a friend thirty minutes after it occurred, even though her brother was sleeping in an adjoining room; the government also called a sexual assault response coordinator as an expert who testified that based on her work with thousands of sexual assault victims, it was common for sexual assault victims not to fight back against their attacker, not to scream or call for help, and not to first report the sexual assault to the police rather than to a friend or family member; the witness also testified that the reason sexual assault victims do not scream or call for help is their fear of escalating the violence or harm; in juxtaposition, the defense put appellant on the stand where he testified that the alleged assault was an invited, consensual sexual encounter; the result was a “he said–she said” case, where the outcome largely depended on whether the panel found the alleged victim or appellant more credible; under this scenario, the expert witness’s testimony could have been of considerable significance in the minds of the panel members because it seemed to corroborate and ratify the alleged victim’s version of events; more importantly, actual bolstering occurred in this case because after the alleged victim already had clearly and directly testified to the panel members why she did not struggle more with her assailant, the expert provided additional testimony on the same point of why victims do not struggle more with their attackers; this bolstering was of particular concern because even the government conceded that the expert witness did not have a legitimate basis to testify on this point, and the military judge had explicitly placed such testimony by the expert off-limits; therefore, under these circumstances, the government failed to meet its burden of demonstrating that the expert witness’s improperly admitted testimony did not have a substantial influence on the findings

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

1. an appellate court reviews de novo the question of whether the military judge properly performed the required gatekeeping function of MRE 702 (the rule governing the testimony by expert witnesses), i.e. whether the military judge properly followed the Daubert (509 US 579 (1993)) framework; however, it reviews for abuse of discretion the decision by the military judge to permit a person to testify as an expert witness, the limitations he placed on the scope of her permitted testimony, and his enforcement of those limitations
2. while not required in making a ruling, where the military judge places on the record his analysis and application of the law to the facts, deference is clearly warranted; however, the reverse is also true; if the military judge fails to place his findings and analysis on the record, less deference will be accorded
3. when the standard of review is abuse of discretion, and an appellate court does not have the benefit of a military judge’s analysis of the facts before him, that court cannot grant the great deference it generally accords to a trial judge’s factual findings because it has no factual findings to review; nor does it have the benefit of the military judge’s legal reasoning in determining whether he abused his discretion
4. when a military judge does not hold a Daubert (509 US 579 (1993)) hearing and does not address the Houser (36 MJ 392 (1993)) factors in some manner, an appellate court will generally show less deference to that military judge’s decisions on the admissibility of the testimony of expert witnesses
5. under Article 59(a), UCMJ, a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; the test for nonconstitutional evidentiary error is whether the error had a substantial influence on the findings; importantly, it is the government that bears the burden of demonstrating that the admission of erroneous evidence is harmless; to determine whether the government has carried its burden, an appellate court weighs four factors: (1) the strength of the government’s case; (2) the strength of the defense’s case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question