CORE CRIMINAL LAW SUBJECTS: Witnesses: Experts

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 (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).

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. Lloyd, 69 M.J. 95 (an accused is entitled to an expert’s assistance provided by the government before trial to aid in the preparation of his defense upon a demonstration of necessity).   

 

(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; in order to satisfy the first prong of this test, the defense must show (1) why the expert is necessary, (2) what the expert would accomplish for the accused, and (3) why defense counsel is unable to gather and present the evidence that the expert would be able to develop). 

 

(in a request for expert assistance before trial, the defense has the burden to show that there is more than the mere possibility of assistance from a requested expert; the defense must show a reasonable probability that the expert would assist the defense and that denial of the expert would result in an unfair trial). 

 

(appellant, who was charged with assault with a dangerous weapon in connection with his involvement in a bar fight in which three victims were stabbed, failed to show that the assistance of a blood spatter expert was necessary; although the defense argued that a blood spatter expert was necessary to explore all possibilities as to how the blood came to be on the shirt that appellant was wearing at the time of the altercation, the defense’s stated desire to explore all possibilities did not satisfy the requisite showing of necessity; in addition, although the defense argued that it needed to understand and potentially present expert testimony on the manner in which blood spatters from a wound and that expert assistance on the physics of bloodstain patterns would allow it to either rule out or present a theory about the presence of the alleged victim’s blood on appellant’s clothing, the defense did not specify what theory it sought to present; absent a more precise explanation of the theory it hoped to pursue through the assistance of a blood spatter expert, the military judge did not abuse her discretion when she denied the defense motion for the assistance of a blood spatter expert). 

 

United States v. Anderson, 68 M.J. 378 (servicemembers are entitled to government-provided expert assistance if such assistance is necessary to their defense; the government must provide the expert if the accused establishes 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; when the defense requests a nonmilitary expert, the defense must provide an estimated cost of employment and illustrate why a military expert would be an inadequate substitute; while the military judge is not required to provide the particular expert requested, if the defense shows that expert assistance is necessary, an adequate substitute must be provided). 


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). 

 

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. 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). 

 

United States v. Lee, 64 M.J. 213 (in trials by courts-martial, the accused is afforded equal access to witnesses and evidence, including a right to the assistance of necessary experts without regard to his ability to pay for those expert services). 

 

(prior to trial, the defense must submit a request for employment of an expert to the convening authority supported, in part, by a statement of reasons why the employment of the expert is necessary; if the request is denied by the convening authority, that request may be renewed at trial before the military judge). 

 

(an accused’s entitlement to expert assistance is not limited to actual expert testimony at trial; the entitlement to that expertise is available before trial to aid in the preparation of his defense upon a demonstration of necessity). 

 

(to demonstrate necessity for expert assistance, the accused must show that a reasonable probability exists both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial). 

 

(in this case, the military judge abused his discretion in refusing a defense request for expert assistance in a child pornography case where a government witness offered expert testimony that the images taken from the accused’s computer were real and not computer-generated based on a novel digital media analysis; the issue whether the images were real or virtual was the critical issue, and the defense counsel did not have the qualifications or expertise to challenge the image analysis presented by the government’s expert witness; on the facts of this case, the defense made an adequate showing of necessity where the requested expert assistance would provide the basis upon which defense counsel could cross-examine the government expert and possibly challenge the actual or real nature of the graphic images). 

 

(aside from a common-sense conclusion that a government expert would be unlikely to cast a critical eye upon his own expertise, his analytical methods, or his professional conclusions, making a selected government expert available for interview prior to trial does not properly respond to a defense showing of necessity for expert assistance). 

 

(Article 46, UCMJ, is a clear statement of congressional intent against government exploitation of its opportunity to obtain an expert vastly superior to the defense’s; as this case demonstrates, the playing field at trial is rendered even more uneven when the government benefits from scientific evidence and expert testimony while the defense is wholly denied a necessary expert to prepare for and respond to the government’s expert; here, denying the accused the expert assistance of a defense consultant was an abuse of discretion). 

 

(courts-martial must not only be just, they must be perceived as just; the requirement of Article 46, UCMJ, for equal access to witnesses and evidence secures that just result and enhances the perception of fairness in military justice; where the government has found it necessary to grant itself an expert and present expert forensic analysis often involving novel or complex scientific disciplines, fundamental fairness compels the military judge to be vigilant to ensure that an accused is not disadvantaged by a lack of resources and denied necessary expert assistance in the preparation or presentation of his defense).


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).

 

(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, 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, 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. 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. Barron, 52 MJ 1(military judge decides whether a proffered witness is an expert for purposes of MRE’s 702 and 706, and his decision is reviewed for an abuse of discretion).

(while there is some authority that a trial judge may, in an unusual case, disqualify a previously qualified expert witness in the interests of promoting fairness, there is no direct authority requiring a military judge to disqualify a prosecution expert witness on the basis that he or she acted as a de facto prosecutor; thus, military judge did not abuse discretion in refusing to exercise such power where:  (1) military judge was sensitive to the fact that this expert’s extra-testimonial conduct might unduly prejudice appellant; (2) the military judge stopped the complained-of note passing; (3) the military judge rebuked the trial counsel and the expert; and, (4) the military judge called the members’ attention to the improper conduct and instructed them to consider it against the expert in evaluating her credibility).


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