United States v. Flesher
2014 CAAF LEXIS 702
| C.A.A.F. | 2014Background
- Appellant Fleshher, a Specialist, was tried by a general court-martial for aggravated sexual assault, burglary, and two alcohol-to-minor specifications; he was found guilty of the sexual assault charge and the panel imposed a seven-year confinement, forfeitures, reduction to E-1, and dishonorable discharge.
- During trial, the Government called Sarah Falk, a former Sexual Assault Response Coordinator (SARC), as an expert to testify about common nonconfrontational victim behaviors, which defense counsel challenged as improper expert testimony and potentially bolstering.
- The military judge allowed Falk's testimony but limited its scope; defense sought a Daubert hearing and an independent expert, Dr. Grieger, to counter Falk, and defense warning of unreliable methodology.
- Pretrial, the Government disclosed Falk as a witness two weeks before trial; the defense moved for continuance and for discovery, arguing the need for Daubert-type scrutiny, which the judge did not explicitly grant or deny before trial.
- Voir dire of Falk occurred at trial; Falk’s formal qualifications were explored, but the record shows confusion over the exact nature of her expertise and whether she would testify beyond her role as a SARC; Falk testified to three limited questions about victim behavior, which the Government then used to bolster its case.
- The Army Court of Criminal Appeals affirmed in part and reversed in part; the matter proceeded to the Court of Appeals for the Armed Forces (CAAF), which found that the military judge abused his discretion in admitting Falk’s testimony and that the error was prejudicial, leading to reversal of the conviction for aggravated sexual assault and a remand for rehearing, while leaving the charge involving alcohol issues intact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the military judge abuse discretion admitting Falk as an expert? | Fleshher argues gatekeeping failed under M.R.E. 702, Houser, and Daubert. | Fleshher contends Falk’s testimony was within the admissible scope as specialized knowledge aiding the panel. | Yes; admission was an abuse of discretion. |
| Did the Houser factors apply adequately to Falk's reliability and qualifications? | Fleshher asserts insufficient on-record analysis of Falk’s qualifications/reliability. | Falk’s experience as a SARC supports reliability; the judge limited scope appropriately. | No; the Houser framework was not adequately applied on the record. |
| Did the government bear prejudice and impact on findings from Falk's testimony? | Falk testimony bolstered credibility of victim’s account and prejudiced the panel. | Any prejudice was not substantial given corroborating testimony and defense counterwitness. | Yes; the error had substantial influence on the findings. |
| Was there a proper Daubert/Kumho gatekeeping process given the trial context? | Daubert/Kumho required rigorous analysis; the judge did not conduct a proper inquiry. | Formal Daubert hearing not always required; voir dire and limitations sufficed here. | No; the gatekeeping process was deficient. |
Key Cases Cited
- Houser, 36 M.J. 392 (C.M.A. 1993) (test for admissibility of expert testimony in M.R.E. 702)
- Billings, 61 M.J. 163 (C.A.A.F. 2005) (abuse of discretion standard for expert testimony determinations)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (U.S. 1993) (gatekeeping framework for reliability of expert testimony)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (U.S. 1999) (Daubert framework extends to nonscientific expert testimony)
- Carter, 26 M.J. 428 (C.M.A. 1988) (rape trauma syndrome evidence admissible to counter inferences)
- Pagel, 45 M.J. 64 (C.A.A.F. 1996) (expert testimony on patterns of disclosure in sexual abuse cases)
- Reynolds, 29 M.J. 105 (C.M.A. 1989) (allowing clinical psychologist to testify about rape aftermath)
- Peel, 29 M.J. 235 (C.M.A. 1989) (rape trauma syndrome evidence admissible to explain lack of immediate reporting)
- Castillo, 924 F.2d 1227 (2d Cir. 1991) (limitations on expert testimony mirroring lay matters; credibility concerns)