CORE CRIMINAL LAW SUBJECTS:Evidence:Expert / Scientific Testimony

2013 (September Term)

United States v. Flesher, 73 M.J. 303 (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). 

(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). 

(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). 

(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). 

(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).

(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). 

(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). 

(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).  

(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). 


2010 (September Term)

United States v. Sweeney, 70 M.J. 296 (testimonial statements include a formalized certification of results contained in a drug testing report requested by the prosecutor; however, it is well-settled that under both the Confrontation Clause and the rules of evidence, machine-generated data and printouts are not statements and thus not hearsay - machines are not declarants - and such data is therefore not testimonial). 

(in determining whether statements in a drug testing report are testimonial under the Confrontation Clause, the focus has to be on the purpose of the statements in the report itself, rather than the initial purpose for the urine being collected and sent to the laboratory for testing; the relevant question is thus whether the statement is made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; asked another way, would it be reasonably foreseeable to an objective person that the purpose of any individual statement in a drug testing report is evidentiary). 

(although those performing initial drug tests may well be independent scientists carrying out non-adversarial public duties, that does not mean that their statements are not produced to serve as evidence; where an accused’s sample tests positive in at least one screening test, analysts must reasonably understand themselves to be assisting in the production of evidence when they perform re-screens and confirmation tests and subsequently make formal certifications on official forms attesting to the presence of illegal substances, to the proper conducting of the tests, and to other relevant information; this is all the more evident where the government expert testifies that the forensic laboratory’s mission is to provide urinalysis drug testing that is scientifically valid and forensically acceptable as evidence in courts of law). 

(the formality of a document generated by a forensic laboratory is a factor to be considered when determining whether a document is testimonial).

(the admission of a cover memorandum results certification of a drug testing report for appellant’s urinalysis violated the Confrontation Clause, and that error was plain and obvious; the memorandum was testimonial where the laboratory made it after appellant had been charged, addressed it to the legal service office, and included the formulaic language for authenticating a business record - language one would expect to find only on a document made for an evidentiary purpose). 

(the admission of a specimen custody document certification from a drug testing report for appellant’s urinalysis violated the Confrontation Clause, and that error was plain and obvious; the certification was testimonial where it was a formal, affidavit-like statement of evidence that not only presented the machine-generated results, but also indicated that the laboratory results were correctly determined by proper laboratory procedures, and that they were correctly annotated; such a formal certification has no purpose but to function as an affidavit; because the declarant of the certification was not subject to cross-examination, admission of the specimen custody document plainly and obviously violated the Confrontation Clause). 

(the admission of the chain of custody documents, data review sheets, and results report summary from a drug testing report for appellant’s urinalysis (along with their stamps, signatures, and other notations) did not constitute plain error; these documents were not plainly and obviously testimonial where they were neither formalized, affidavit-like statements, nor statements made in a formal setting). 

United States v. Lusk, 70 M.J. 278 (the military judge should give a limiting instruction concerning the appropriate use of inadmissible evidence relied upon for the basis of the expert opinion; importantly, such instructions can ensure that the testimony is not transformed from evidence introduced for the limited purpose of showing what the expert witness relied upon into substantive evidence introduced for the purpose of establishing a truth of the matter, particularly in view of the potential that the latter case could raise constitutional issues under the Confrontation Clause of the Sixth Amendment; limiting instructions are particularly important when evidence that is inadmissible, or admissible for only a limited purpose, involves a discrete fact or set of facts).

United States v. Blazier, 69 M.J. 218 (an expert may, consistent with the Confrontation Clause and the rules of evidence, (1) rely on, repeat, or interpret admissible and nonhearsay machine-generated printouts of machine-generated data, and/or (2) rely on, but not repeat, testimonial hearsay that is otherwise an appropriate basis for an expert opinion, so long as the expert opinion arrived at is the expert’s own; however, the Confrontation Clause may not be circumvented by an expert’s repetition of otherwise inadmissible testimonial hearsay of another). 

 

(a qualified expert witness may give testimony in the form of opinion 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 facts of the case; with respect to the first requirement, if of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted; however, such inadmissible facts or data shall not be disclosed to the members by the proponent of the opinion or inferences unless the military judge determines that their probative value in assisting the members to evaluate the expert’s opinion substantially outweighs their prejudicial effect). 

 

(it is well-settled that under both the Confrontation Clause and the rules of evidence, machine-generated data and printouts are not statements and thus not hearsay - machines are not declarants - and such data is therefore not testimonial; machine-generated data and printouts such as those in this case are distinguishable from human statements, as they involve so little intervention by humans in their generation as to leave no doubt they are wholly machine-generated for all practical purposes; because machine-generated printouts of machine-generated data are not hearsay, expert witnesses may rely on them, subject only to the rules of evidence generally, and MRE 702 and MRE 703 in particular). 

 

(an expert witness may review and rely upon the work of others, including laboratory testing conducted by others, so long as they reach their own opinions in conformance with evidentiary rules regarding expert opinions; an expert witness need not necessarily have personally performed a forensic test in order to review and interpret the results and data of that test; that an expert did not personally perform the tests upon which his opinion is based is explorable on cross-examination, but that goes to the weight, rather than to the admissibility, of that expert’s opinion). 

 

(lack of knowledge or unwarranted reliance on the work of others may make an expert opinion inadmissible: the military judge, in his capacity as a gatekeeper, must determine whether the opinion is based upon sufficient facts or data and is the product of reliable principles and methods reliably applied to the case). 

 

(the fact that the government may, consistent with the rules of evidence and the Confrontation Clause, introduce machine-generated data and expert testimony relying on the work of others does not preclude an accused from seeking to call as witnesses those who operated the machines or performed the work being relied upon to test, among other things, the accuracy, validity, and reliability of those machines and tests; as the Compulsory Process Clause of the Sixth Amendment, Article 46, UCMJ, 10 USC § 846, and RCM 703(a) make clear, a defendant has the right to the compulsory process of witnesses who can provide relevant and necessary evidence in their defense; in other words, a live witness not required by the Confrontation Clause because the government admitted no testimonial hearsay may nonetheless be called by the defense and attendance compelled upon a showing of relevancy and necessity). 

 

(neither the rules of evidence nor the Confrontation Clause permit an expert witness to act as a conduit for repeating testimonial hearsay; an expert witness may review and rely upon inadmissible hearsay in forming independent conclusions, but he may not circumvent either the rules of evidence or the Sixth Amendment by repeating the substance of the hearsay).

 

(although the expert witness in this case may well have been able to proffer a proper expert opinion based on machine-generated data and calibration charts, his knowledge, education, and experience and his review of the drug testing reports alone, both the drug testing reports and the expert witness’s testimony contained a mix of inadmissible and admissible evidence; specifically, the cover memoranda were inadmissible under the Confrontation Clause, and the expert witness’s testimony conveying the statements contained in those cover memoranda - including those concerning what tests were conducted, what substances were detected, and the nanogram levels of each substance detected - were inadmissible under both the Confrontation Clause and MRE 703, while the machine-generated printouts and data were not hearsay at all and could properly be admitted into evidence and serve as the basis for the expert witness’s conclusions). 


2009 (September Term)

United States v. Mullins, 69 M.J. 113 (in a trial involving the sexual assault of a child, 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; however, an expert may not testify regarding the credibility or believability of a victim, or opine as to the guilt or innocence of an accused).

 

(it was error to admit expert testimony from which the court members could infer that there was a 1 in 200 chance that the allegations of child victims of sexual assault were false; such an inference derived from expert testimony invades the province of the members to determine the credibility of witnesses; an expert inference that there was a 1 in 200 chance the victim is lying undermines the duty of the panel members to determine guilt beyond a reasonable doubt). 

 

United States v. Graner, 69 M.J. 104 (an expert witness may provide opinion testimony 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 facts of the case). 

 

(a military judge has broad discretion as the gatekeeper to determine whether the party offering expert testimony has established an adequate foundation with respect to reliability and relevance). 

 

(in a prosecution of an accused charged with the maltreatment of detainees at an Iraqi detention facility, a military judge did not abuse his discretion when he limited the testimony of a use-of-force expert to the point that detainees stacked in a naked human pyramid would not have suffered from positional asphyxia, a dangerous medical condition where a person has trouble breathing as a result of pressure on the diaphragm, because of the manner in which they were stacked; the military judge properly determined that this expert had an insufficient basis to conclude that the naked human pyramid and the tether around the neck of one detainee were reasonable uses of force). 

 

United States v. Ellis, 68 M.J. 341 (MRE 702-705 and 403 operate to establish a simple four-part test for admissibility of expert testimony: (1) was the witness qualified to testify as an expert? (2) was the testimony within the limits of the expert’s expertise? (3) was the expert opinion based on a sufficient factual basis to make it relevant?, and (4) does the danger of unfair prejudice created by the testimony outweigh its probative value?). 

 

(there can be no hard and fast rule as to what constitutes sufficient information and knowledge about the accused necessary for an expert’s opinion as to an accused’s rehabilitation potential; the sufficiency of the facts and data are analyzed on a case-by-case basis). 

 

(an expert had a sufficient factual basis to provide relevant expert opinion on an accused’s risk of recidivism, as relevant to the accused’s rehabilitation potential, in a court-martial on offenses including, inter alia, specifications of indecent acts with a child and communicating indecent language to a child, even though the expert did not personally interview the accused or the victims, where the expert used a Static 99 instrument that was specifically designed to do a risk assessment based upon a review of records, and where the expert reviewed the charges and specifications, an extensive stipulation of fact, the forensic analysis of the accused’s computer’s hard drive, a listing of the images identified there, the chat logs, the guilty plea inquiry, and the available rehabilitation options). 


2008 (Transition)
 

United States v. Freeman, 65 M.J. 451 (servicemembers are entitled to investigative or other expert assistance when necessary for an adequate defense; the mere possibility of assistance is not sufficient to prevail on the request; instead, the accused has the burden of establishing that a reasonable probability exists that (1) an expert would be of assistance to the defense, and (2) that denial of expert assistance would result in a fundamentally unfair trial; to establish the first prong, the accused must show (1) why the expert assistance is needed, (2) what the expert assistance would accomplish for the accused, and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop).    

 

(in this case, the military judge did not abuse his discretion in denying the defense’s request for an expert consultant in police interrogations because, even assuming arguendo the consultant’s expertise and that the defense counsel could benefit from the consultant’s assistance, the defense counsel never established why they were unable to gather and present any evidence about interrogations that the expert would have been able to develop and why they were unable to cross-examine the investigators on their interrogation techniques and their use of those techniques in eliciting a confession; what the defense counsel really wanted was knowledge of interrogations that they could have developed themselves, and thus they failed to establish the necessity for expert assistance). 

 

2007

United States v. Harrow, 65 M.J. 190 (in a murder case based on the shaken baby syndrome, testimony by an expert witness in the fields of developmental and forensic psychiatry that the most common person to fatally abuse a child is a biological parent and that the most common trigger for baby shakings is persistent crying, was inadmissible profile evidence that focused on characteristics of the abuser, as opposed to characteristics of the child). 

 

(in a murder case based on the shaken baby syndrome, testimony by an expert witness in the fields of developmental and forensic psychiatry about the symptoms and progression of shaken baby syndrome and her medical conclusion that the victim’s primary diagnosis was probably most consistent with an inflicted injury, was not inadmissible profile evidence; the evidence regarding the progressions and symptoms of shaken baby syndrome focused on the characteristics of the child, not the abuser; and the evidence was not profile evidence simply because it tended to incriminate the accused). 

 

United States v. Sanchez, 65 M.J. 145 (MRE 702 dictates the admissibility of expert testimony; the rule permits expert testimony in the form of an opinion or otherwise only if the testimony:  (1) is based upon sufficient facts or data, (2) is the product of reliable principles and methods, and (3) the principles and methods have been applied reliably to the facts of the case; the requirement that a scientific theory be generally accepted in the scientific community has been rejected, and the trial court has a gatekeeping role). 

 

(with respect to expert testimony offered pursuant to MRE 702, the military judge has a gatekeeping role; as gatekeeper, the judge is tasked with ensuring that an expert’s testimony both rests on a reliable foundation and is relevant).

 

(four factors that a judge may use to determine the reliability of expert testimony 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). 

 

(the test for determining the reliability of expert testimony is flexible, and the four factors that a judge may use to determine reliability do not constitute a definitive checklist or test; the focus is on the objective of the gatekeeping requirement, which is to ensure that the 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).

 

(the military judge’s inquiry into the reliability of expert testimony is a flexible one, and the gatekeeping inquiry must be tied to the facts of a particular case; the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable; consequently, the trial judge has the same kind of latitude in deciding how to test an expert’s reliability as it enjoys when it decides whether that expert’s relevant testimony is reliable). 

 

(the focus of the military judge’s inquiry into the reliability of expert testimony is on the principles and methodology employed by the expert, without regard to the conclusions reached thereby). 

 

(under MRE 702, the military judge is required at a minimum to determine whether the expert witness’s conclusion could reliably follow from the facts known to the expert and the methodology used, mindful that conclusions and methodology are not entirely distinct from one another; trained experts commonly extrapolate from existing data; whether attempting to determine if there is too great an analytical gap between the data and the opinion proffered, or whether the proffered testimony falls outside the range where experts might reasonably differ, the goal is to ensure that expert testimony or evidence admitted is relevant and reliable, as well as to shield the panel from junk science). 

 

(the testimony of a pediatric physician that the physical examination of an alleged child sexual assault victim revealed a thickened hymen, a high vaginal white blood cell count, and anal dilation and that the constellation of her findings were concerning for sexual abuse, had a sufficient factual basis and was sufficiently reliable as to be admissible under MRE 702 governing the admissibility of expert testimony; as such, the military judge did not abuse her discretion in admitting this testimony and the ruling was not manifestly erroneous). 

 

(nothing requires that a military judge either exclude or admit expert testimony because it is based in part on an interpretation of facts for which there is no known error rate or where experts in the field differ in whether to give, and if so how much, weight to a particular fact in deriving an opinion; such a bright-line requirement would be at odds with liberal admissibility standards of the federal and military rules; the adversary system, including vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible expert evidence). 

 

United States v. Foster, 64 M.J. 331 (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).

 

(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). 

 

United States v. Brooks, 64 M.J. 325 (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). 

 

(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). 

 

(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). 

 

(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). 


2006

United States v. Allison, 63 M.J. 365 (a witness may testify as an expert on a particular subject matter only if the military judge determines that the witness is qualified based on his or her knowledge, skill, experience, training, or education regarding that subject).

 

(the facts or data that an expert relies upon in a particular case may be referenced before the trial and if of a type reasonably relied upon by experts in the particular field in forming opinions or inferences, the data need not be admissible in order for the opinion to be admitted). 

 

(the military judge has broad discretion as the gatekeeper to determine whether the party offering expert testimony has established an adequate foundation with respect to reliability and relevance). 

 

(DNA testing is sufficiently reliable and is admissible at courts-martial if a proper foundation is laid). 

 

(statistical probabilities are basic to DNA analysis and their use has been widely researched and discussed; like the underlying DNA analysis, this statistical evidence also is admissible at court-martial so long as a proper foundation is laid). 

 

(where the scientific evidence being offered is not novel, the proponent of the evidence needs to show only that the proffered expert relied upon sufficient facts or data, used reliable principles and methodology, and possessed sufficient knowledge, skill, experience, training, or education; if the opposing party then wishes to challenge admissibility of the proffered evidence based on the data or methodology relied upon, that party has the opportunity to do so). 

 

(evidence of statistical probabilities is not only basic to DNA analysis, but also essential to the admissibility of that analysis; without evidence of statistical frequencies, DNA evidence is meaningless and would not be admissible).

 

(although statistical probabilities may be basic to DNA analysis, it does not necessarily follow that all experts qualified to give testimony on DNA analysis will be qualified to testify regarding statistical frequencies; nor does it necessarily follow, however, that a witness must be an expert population geneticist to explain and testify about the methodology and calculations used to determine the statistical probability of a match between two DNA samples). 

 

(the military judge did not abuse his discretion in allowing witnesses to testify regarding the statistical frequencies establishing the relevance of the DNA evidence where there was sufficient evidence from which the military judge could determine that they possessed the knowledge, skill, experience, training, or education to testify about the databases upon which they relied, their method of calculation, and the results of their statistical frequency determinations; the record reflected that the witnesses had received training in DNA statistical analysis and both had considerable experience in conducting that analysis; both experts responded to questions regarding their statistical conclusions and their understanding of the databases upon which their calculations relied; the testimony also established that the method of calculation utilized in the analysis had been developed by statisticians and was widely accepted).

 

2005


United States v. Billings, 61 M.J. 163 (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).
 
(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). 
 
(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).
 
(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). 
 
(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).
 
(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). 
 
(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).
 
(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.).  
(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).

United States v. Hays, 62 M.J. 158 (a witness qualified as an expert may testify as to scientific, technical, or other specialized knowledge if it will assist the factfinder in understanding the evidence or determining a fact at issue; testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact; however, an expert may not express an opinion on the ultimate issue of a case).
 

(an expert opinion interpreting a document does not necessarily constitute an ultimate opinion on the intent of the document’s author).


(in this case, an expert with specialized knowledge in the field of the behavioral aspects of the sexual victimization of children was qualified to speak to the strategies employed by sexual predators to encourage other individuals to commit sexual offenses against children and to offer his opinion as to whether an e-mail could be viewed as part of such a strategy).


United States v. Bresnahan, 62 M.J. 137 (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; profile evidence is admissible only in narrow and limited circumstances; for example, it is admissible in rebuttal when a party opens the door by presenting potentially misleading testimony).


(the military judge did not err in allowing the trial counsel, during his cross-examination of a defense expert, to question the expert’s knowledge of scientific studies that concluded that male caregivers were more likely to be the perpetrators in shaken baby cases (i.e., questioning about profile evidence), where the defense counsel opened the door to this type of questioning by having the expert testify about various factors that pointed to the accused’s wife as the one who killed his infant son; even if the military judge erred in not sua sponte excluding such testimony, the error was not plain and obvious, and any error in admitting this evidence was harmless).

2004

 

United States v. Traum, 60 MJ 226 (before expert testimony may be admitted, the following factors must be established by the proponent of such testimony:  (A) the qualifications of the expert, (B) the subject matter of the expert testimony, (C) the basis for the expert testimony, (D) the legal relevance of the evidence, (E) the reliability of the evidence, and (F) whether the probative value of the testimony outweighs other considerations).

 

(expert testimony is admissible when scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue; the test is not whether the jury could reach some conclusion in the absence of the expert evidence, 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). 

 

(generally, use of any characteristic profile as evidence of guilt or innocence in criminal trials is improper; profile evidence is 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). 

 

(child abuse is an area where specialized knowledge regarding pediatric forensics and child abuse may indeed be helpful to members; children incur all sorts of injuries as they move through infancy to the toddler years and beyond; thus, a panel might well benefit from an understanding of the methodology doctors use to determine the cause of an infant’s injury; in the case of fatal child abuse, the value of such specialized knowledge is equally apparent; such information helps members discern the critical elements of testimony and place that testimony within an analytic framework; this information may also help disabuse members of preconceptions that might cloud their ability to focus on the evidence presented as opposed to preconceptions about the nature of the offense at issue). 

 

(testimony of a forensic pediatrician in the prosecution of the accused for murder of her infant daughter that “[i]f a child is less than four years of age, the most common cause of trauma death is going to be child maltreatment,” and that “eighty percent of children who die, die from a one-time event,” did not constitute impermissible profile evidence, because it related to the characteristics of an infant victim rather than the accused; in addition, the statements fell within the rubric of specialized knowledge in the context of a general description of fatal child abuse that is useful to the members in understanding the evidence and determining a fact in question). 

 

(evidence of battered child syndrome is often admitted to show that a particular injury is not accidental or is not consistent with the explanation offered therefor, but is instead the result of physical abuse by a person of mature strength). 

 

(the ban on profile evidence exists because offering such evidence treads too closely to offering character evidence of an accused in order to prove that the accused acted in conformity with that evidence on a certain occasion and committed the criminal activity in question). 

 

(testimony setting up a child battering profile must be distinguished from testimony focusing on the characteristics of a battered child; the former is irrelevant because it is not necessarily true that an accused is a batterer just because the individual fits a certain profile; however, the latter is often helpful in determining a fact in issue). 

 

(testimony of a forensic pediatrician in the prosecution of the accused for murder of her infant daughter that “[o]verwhelmingly, the most likely person to kill a child is going to be his or her own biological parent,” was impermissible profile evidence because it clearly reached both the characteristics of the victim as well as the characteristics of the typical offender; while the pediatrician’s testimony did not come in the form of numeric probability, members might have been left with the impression that if the testimony indicated that the accused’s daughter died as a result of child abuse, the probability that she committed the offense was “overwhelming,” regardless of what specific evidence was presented; in essence, the statement placed a statistical probability on the likelihood that the accused committed the offense, and thus was impermissible profile evidence).

 

(MRE 703 allows experts to rest their opinion on sources such as personal knowledge, assumed facts, documents supplied by other experts, and the testimony of witnesses at trial). 

 

(however relevant and reliable an expert’s testimony might be, such evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members).

 

2003

United States v. Hall, 58 MJ 90 (evidence of urinalysis tests, their results, and expert testimony explaining them is sufficient to permit a factfinder to find beyond a reasonable doubt that an accused used contraband drugs).

United States v. Diaz, 59 MJ 79 (M.R.E.s 702-705 and 403 operate to establish a simple four-part test for admissibility of expert testimony: (1) was the witness qualified to testify as an expert? (2) was the testimony within the limits of the expert's expertise? (3) was the expert opinion based on a sufficient factual basis to make it relevant?, and (4) does the danger of unfair prejudice created by the testimony outweigh its probative value?).

(an expert witness may not opine concerning the guilt or innocence of the accused; the limits on expert opinion are rooted in recognition that the expert lacks specialized knowledge to determine if the victim or witness is telling the truth and respect for the member’s exclusive function to weigh evidence and determine credibility).

(testimony that opines that a crime has been committed and that a particular person did it crosses the line of proper medical testimony).

(the admission of expert testimony that the accused was the perpetrator of a non-accidental trauma was plain error).

2002

United States v. Quintanilla, 56 MJ 37 (a trial judge is required to make a preliminary assessment of whether the reasoning or methodology underlying an expert’s testimony is scientifically sound, and whether that reasoning or methodology properly applies to the facts at issue; this assessment applies not only to expert testimony based upon scientific knowledge, but also to technical and other specialized knowledge covered by Mil.R.Evid. 702).

(the military judge’s gatekeeping function with respect to scientific/expert testimony is to ensure that any and all expert testimony, including any information used to form the basis for an opinion, is not only relevant, but also reliable).

(military judge did not abuse his discretion in qualifying expert and admitting his testimony where the military judge ultimately undertook to apply the appropriate analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), where the scientific principles involved were not particularly novel or controversial, and where the witness testified that: (1) his opinions were based upon his own experience and on an overview of analytical studies in the field; (2) the studies he relied upon were peer-reviewed; (3) the rates of error were reported in the studies, but he presently lacked recall of the rates for each study; (4) the studies were scientifically valid, had not been repudiated, and were generally accepted within the scientific community; and (5) he still retained licenses to practice and had personal experience in treating victims of sexual abuse).

United States v. Rodriguez, 56 MJ 336 (a party-opponent may test the basis of an expert’s opinion by inquiring into the facts and data underlying that opinion).

2001

United States v. Green, 55 MJ 76 (military judge has broad discretion as the "gatekeeper" to determine whether the party offering expert testimony has established an adequate foundation with respect to reliability and relevance).

(the military judge may determine in appropriate circumstances that scientific test results, as explained by an expert witness, permit consideration of the permissive inference that presence of a controlled substance demonstrates knowledge and wrongful use).

(if a party fails to challenge the admissibility of expert testimony, the issue may be treated as waived, absent plain error).

United States v. Norris, No. 01-0302, 55 MJ 209 (military judge did not abuse his discretion in ruling that witness was qualified as an expert with respect to a diagnostic opinion of post-traumatic stress disorder formulated in the course of providing a victim with the therapy that her family requested where:  the witness was trained and experienced in counseling and treating victims of sexual abuse; the witness used her training and experience to reach certain conclusions about the victim’s ailments upon reasonable investigation; the record did not demonstrate that it was either inappropriate or unusual for a sexual abuse counselor such as the witness to reach a working diagnosis for purposes of proceeding with treatment).

United States v. Dimberio, No. 00-0166, 56 MJ 20 (defense proffer showed that although expert had not known a given individual long enough to form a traditional opinion as to her character and had not heard about her reputation in the community, the expert could express an expert opinion about the individual’s mental condition based upon his examination of the individual).

(under Mil.R.Evid 401-405 and the 700 series rules, expert testimony pertaining to a mental disorder may very well be relevant if the defense establishes that individuals with certain diagnoses confronted with certain situations may respond in a similar consistent way, but such evidence raises more complex inferential problems that require a sufficient basis in the first place).

(an adequate proffer as to expert testimony includes:  (1) qualifications of the expert; (2) the subject matter of the expert testimony; (3) the basis for the expert testimony; (4) legal relevance of the evidence; (5) reliability of the evidence; and (6) probative value of the testimony.

(appellant’s proffer concerning expert testimony about his wife’s mental health problems was inadequate because, assuming the expert’s qualifications, it lacked evidence that the alleged mental health problems had a nexus or link to behavioral traits of acting out or violence; the evidence was not legally relevant absent the expert showing that these traits manifest themselves under certain situations).

(an expert offering testimony on mental health problems, like those offering other scientific theories, would have to show that the traits do exist in an individual and that those character traits do react similarly in certain situations under the criteria for admissibility of scientific evidence established by Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)).

(in the absence of character evidence that appellant’s wife’s mental health problems were tied to violent acts, the introduction of a mental health diagnosis that she did not handle stress well was both speculative and potentially confusing to the members; nor was appellant’s proffer with respect to this evidence precise in describing limitations to the potential expert testimony; the evidence was thus inadmissible under Mil.R.Evid. 403).

2000

United States v. George, 52 MJ 259 (where eliciting the basis for an expert opinion will place otherwise inadmissible evidence before the finder of fact, the military judge should apply the balancing test under MRE 403 to determine if the prejudicial impact of the inadmissible evidence outweighs the probative value of showing the basis for the expert opinion).

United States v. Armstrong, 53 MJ 76 (expert testimony of a psychologist impermissibly vouching for the credibility of a victim of sexual abuse is a nonconstitutional evidentiary error to be tested for harmlessness).

United States v. Wright, 53 MJ 476 (expert testimony may not take the form of testimony concerning the credibility of the victim or other witnesses, absent a proper foundation under MRE 405; here, where expert was well aware of his role and military judge stepped in to exclude inadmissible evidence, the testimony of an expert did not impermissibly bolster the credibility of a victim).

United States v. Huberty, 53 MJ 369 (abuse of discretion is the proper standard by which to review a decision to admit or exclude expert evidence; an appellate court will not reverse unless a ruling is manifestly erroneous).

(there are six factors to be weighed by a military judge when he is determining whether expert testimony is admissible:  (1) the qualification of the expert, MRE 702; (2) the subject matter of the expert testimony, MRE 702; (3) the basis for the expert testimony, MRE 703; (4) the legal relevance of the evidence, MREs 401 and 402; (5) the reliability of the evidence, MRE 401; and (6) whether the probative value of the evidence outweighs other considerations, MRE 403).

(the military judge did not error in excluding appellant’s proffered expert testimony about the characteristics of an exhibitionist where:  (1) appellant could not establish that the theories underlying this testimony had gained widespread acceptance in the scientific community; (2) no studies had been published supporting the underlying theories of the evidence; (3) the theories had not been subjected to peer review; and (4) the theories had not been subjected to testing).

(an expert’s extrapolation that, because he could not classify appellant as an exhibitionist, appellant could be eliminated as someone who would commit the charged act of indecent exposure, constitutes improper use of profile evidence).

(military judge did not err by admitting testimony of government expert to explain the victim’s behavior with respect to appellant differently than explained by a defense expert; the testimony was admitted as rebuttal and to explain that the victim’s behavior was consistent with a theory that appellant had “groomed” her, and not for the purposes of showing that appellant fit a profile).

United States v. McElhaney, 54 MJ 120 (proffered expert testimony must meet certain criteria for admissibility:  (1) the expert must be qualified; (2) the subject of the testimony must be within the realm of the expert’s qualification; (3) the expert must have an appropriate basis for the testimony; (4) the testimony must be relevant; (5) the testimony must be reliable; and (6) the testimony must meet the balancing test under Mil. R. Evid. 403).

1999

United States v. Griffin, 50 MJ 278 (the proponent of expert testimony reflecting technical or other specialized knowledge must satisfy the analysis of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and United States v. Houser, 36 MJ 392 (CMA), cert. denied, 510 U.S. 864 (1993), to show that the proffered testimony meets the requirements for reliability and relevance).

(military judge did not abuse his discretion in excluding proffered testimony of psychologist which was not shown to be reliable to support conclusion that confession was involuntary where:  (1) expert would not be able or permitted to testify that the confession was false; (2) expert could not testify that confession was coerced, but could only say it was “consistent with a coerced compliant type confession”; (3) expert’s conclusions were based in part on accused’s version of events surrounding questioning, and military judge found that version to be not credible; (4) expert expressed reservations about the normative standards base on which he based his conclusions; and (5) the proffered evidence shed little light on whether confession was coerced).

United States v. Anderson, 51 MJ 145 (1999) (an expert may:  (1) testify about the characteristics of sexually abused children; (2) testify about the characteristics of sexual abused exhibited by an alleged victim; and (3) summarize the available medical evidence and express an opinion that the evidence is consistent or inconsistent with the victim’s allegations of sexual abuse).

(an expert may not express an opinion on the ultimate issue of sexual abuse, nor may the expert serve as a human lie detector and present testimony which is the functional equivalent of the expert’s opinion that the victim should be believed).

(military judge did not abuse his discretion in admitting expert testimony which did not relate opinion that children were, in fact, abused or that appellant did, in fact, commit abuse; expert properly related the elements of the syndrome and indicated which elements were present in the specific case and why those elements were significant; expert was not permitted to assert that victims were credible, and proper curative instructions were given immediately when expert ventured into area of credibility and defense objected).

(expert who had specialized training and experience which would assist the trier of fact clearly qualified as an expert; however, where defense counsel voir dired the witness and stated that the defense has no objection to government’s offer of the witness as an expert in child sexual abuse, any claim that the witness was not qualified was waived).

United States v. Eggen, 51 MJ 159 (expert opinion on whether a victim of a sexual assault was “faking” emotions and being truthful did not amount to plain error when placed in context and where military judge gave specifically tailored instruction emphasizing that the members alone must determine whether a crime occurred in a specific way and whether the alleged victim or witness is credible).

(actions of defense counsel in cross-examining expert on whether a victim of a sexual assault was “faking” emotions and being truthful opened the door for prosecutor to rehabilitate his expert’s testimony, even to extent of having expert opine that the victim was not faking – defense counsel proffered no motion to strike any part of the defense cross-examination and did not request any curative instructions).

United States v. Scott, 51 MJ 326 (military judge was correct to overrule objections to psychiatric, expert testimony on the basis of hearsay [see United States v. Raya, 45 MJ 251 (1996)] and failure to interview appellant [United States v. Stinson, 34 MJ 233(CMA 1992)]).


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