U.S. v. Henning, 75 M.J. 187

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. MRE 702, which governs the admissibility of expert testimony, provides that if a military judge determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the fact of the case
2. both US v. Houser, 36 MJ 392 (1993) and US v. Daubert, 509 US 579 (1993) provide expanded factors from those in MRE 702 for the military judge to consider in admitting expert testimony and evidence; the six Houser factors that must be established for expert testimony to be admissible are: (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 provides more detailed guidance on the fourth and fifth prongs pertaining to relevance and reliability; under Daubert, the military judge must determine: (1) whether the theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential error rate; (4) the existence and maintenance of standards controlling the technique’s operation; (5) the degree of acceptance within the relevant scientific community; and (6) whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury; although Houser was decided before Daubert, the two decisions are consistent, with Daubert providing more detailed guidance on the fourth and fifth Houser prongs pertaining to relevance and reliability
3. under Daubert (US v. Daubert, 509 US 579 (1993)), the proponent of evidence has the burden of showing that it is admissible, and the trial judge enjoys a great deal of flexibility in his or her gatekeeping role: the law grants a military judge the same broad latitude when he decides how to determine reliability as he enjoys in respect to his ultimate reliability determination
4. nothing in either Daubert (US v. Daubert, 509 US 579 (1993)) or the Federal Rules of Evidence requires a military judge to admit opinion evidence that is connected to existing data only by the ipse dixit (something asserted but not proved) of the expert; a court may conclude that there is simply too great an analytical gap between the data and the opinion proffered
5. where the military judge places on the record his analysis and application of the law to the facts, deference is clearly warranted

Military Justice Personnel: Military Judge: Discretion

1. on a mixed question of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect
2. in this case, the military judge did not abuse his discretion in excluding DNA evidence and accompanying expert testimony because the government had failed to carry its burden of showing that the modified SWGDAM (Scientific Working Group on DNA Analysis Methods) formula used by the crime lab to interpret the DNA results was reliable under the criteria of MRE 702, Houser, and Daubert, where (1) the military judge found that the preponderance of evidence did not establish that the modified formula was widely accepted or peer reviewed, (2) with the exception of the assertion made by the lab employees who used the formula, there was nothing in the record to show it was employed anywhere outside of the crime lab, (3) the military judge was not required to admit opinion evidence that was connected to existing data only by the ipse dixit (something asserted but not proved) of the expert, and (4) the record failed to contradict the military judge’s finding that the modified formula used by the crime lab was a combination of two different statistical calculations, despite such a combination being impermissible under the SWGDAM guidelines

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. MRE 702, which governs the admissibility of expert testimony, provides that if a military judge determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the fact of the case
2. both US v. Houser, 36 MJ 392 (1993) and US v. Daubert, 509 US 579 (1993) provide expanded factors from those in MRE 702 for the military judge to consider in admitting expert testimony and evidence; the six Houser factors that must be established for expert testimony to be admissible are: (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 provides more detailed guidance on the fourth and fifth prongs pertaining to relevance and reliability; under Daubert, the military judge must determine: (1) whether the theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential error rate; (4) the existence and maintenance of standards controlling the technique’s operation; (5) the degree of acceptance within the relevant scientific community; and (6) whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury; although Houser was decided before Daubert, the two decisions are consistent, with Daubert providing more detailed guidance on the fourth and fifth Houser prongs pertaining to relevance and reliability
3. the reliability of the expert methodology goes to admissibility; the reliability of the application of the methodology goes to the weight of the evidence
4. in this case, the military judge did not abuse his discretion in excluding DNA evidence and accompanying expert testimony because the government had failed to carry its burden of showing that the modified SWGDAM (Scientific Working Group on DNA Analysis Methods) formula used by the crime lab to interpret the DNA results was reliable under the criteria of MRE 702, Houser, and Daubert, where (1) the military judge found that the preponderance of evidence did not establish that the modified formula was widely accepted or peer reviewed, (2) with the exception of the assertion made by the lab employees who used the formula, there was nothing in the record to show it was employed anywhere outside of the crime lab, (3) the military judge was not required to admit opinion evidence that was connected to existing data only by the ipse dixit (something asserted but not proved) of the expert, and (4) the record failed to contradict the military judge’s finding that the modified formula used by the crime lab was a combination of two different statistical calculations, despite such a combination being impermissible under the SWGDAM guidelines

Core Criminal Law Subjects: Evidence: Scientific Evidence

1. MRE 702, which governs the admissibility of expert testimony, provides that if a military judge determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the fact of the case
2. both US v. Houser, 36 MJ 392 (1993) and US v. Daubert, 509 US 579 (1993) provide expanded factors from those in MRE 702 for the military judge to consider in admitting expert testimony and evidence; the six Houser factors that must be established for expert testimony to be admissible are: (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 provides more detailed guidance on the fourth and fifth prongs pertaining to relevance and reliability; under Daubert, the military judge must determine: (1) whether the theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential error rate; (4) the existence and maintenance of standards controlling the technique’s operation; (5) the degree of acceptance within the relevant scientific community; and (6) whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury; although Houser was decided before Daubert, the two decisions are consistent, with Daubert providing more detailed guidance on the fourth and fifth Houser prongs pertaining to relevance and reliability
3. the reliability of the expert methodology goes to admissibility; the reliability of the application of the methodology goes to the weight of the evidence
4. in this case, the military judge did not abuse his discretion in excluding DNA evidence and accompanying expert testimony because the government had failed to carry its burden of showing that the modified SWGDAM (Scientific Working Group on DNA Analysis Methods) formula used by the crime lab to interpret the DNA results was reliable under the criteria of MRE 702, Houser, and Daubert, where (1) the military judge found that the preponderance of evidence did not establish that the modified formula was widely accepted or peer reviewed, (2) with the exception of the assertion made by the lab employees who used the formula, there was nothing in the record to show it was employed anywhere outside of the crime lab, (3) the military judge was not required to admit opinion evidence that was connected to existing data only by the ipse dixit (something asserted but not proved) of the expert, and (4) the record failed to contradict the military judge’s finding that the modified formula used by the crime lab was a combination of two different statistical calculations, despite such a combination being impermissible under the SWGDAM guidelines

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Generally

1. under Daubert (US v. Daubert, 509 US 579 (1993)), the proponent of expert evidence and testimony has the burden of showing that it is admissible

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. in an Article 62, UCMJ, appeal, an appellate court reviews a military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial

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

1. in an Article 62, UCMJ, appeal, an appellate court reviews a military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial
2. an appellate court reviews a military judge’s ruling on a motion to suppress for abuse of discretion; it reviews the judge’s factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard; thus, on a mixed question of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect; the abuse of discretion standard calls for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous
3. an appellate court reviews de novo whether the Daubert (US v. Daubert, 509 US 579 (1993)) framework for the admissibility of expert testimony was correctly followed; as long as the Daubert framework is properly followed, an appellate court will not overturn the ruling unless it is manifestly erroneous
4. where the military judge places on the record his analysis and application of the law to the facts, deference is clearly warranted