39 F.4th 539
8th Cir.2022Background
- From May 2016 to June 2017, eight-year-old M.D. lived in foster care with Roger Counts and later disclosed that Counts sexually abused him; another foster child, D.D., also reported inappropriate conduct.
- M.D. was interviewed by an FBI forensic interviewer (Bonnie Fries) and the interview was video recorded.
- Counts was indicted for aggravated sexual abuse of a child and the government disclosed in September 2019 that it would call Dr. Stacey Benson, a psychologist experienced with sex offenders, to testify about general offender behaviors.
- The district court required a Rule 16 summary; the government provided a written summary stating Benson would testify only about general offender characteristics and not opine about Counts, though she had reviewed case materials.
- At trial the court admitted Benson’s testimony limited to general characteristics (prohibiting opinions about Counts), and later admitted the video of M.D.’s forensic interview after M.D. had testified and been released.
- Counts was convicted and appealed, challenging (1) admission of Benson’s testimony under Rule 16 and (2) admission of the video under the Confrontation Clause.
Issues
| Issue | Counts' Argument | Government's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Benson’s expert testimony under Fed. R. Crim. P. 16 | Gov't failed to disclose until trial that Benson reviewed case-specific materials, prejudicing cross-examination and warranting exclusion | Rule 16 requires disclosure of bases/reasons only for opinions the gov't will elicit; gov't disclosed Benson’s general opinions and qualifications | Admission affirmed: gov't complied with Rule 16; review of case materials not required to be disclosed for testimony limited to general characteristics (abuse of discretion not shown) |
| Admission of M.D.’s video forensic interview (Confrontation Clause) | M.D. had been released before the video was played, so Counts lacked ability to cross-examine statements in the recording | M.D. testified at trial and was thoroughly cross-examined; Confrontation Clause requires opportunity for effective cross-examination, not perfect or repeated cross-examination | Admission affirmed: Counts had an opportunity for effective cross-examination and did not seek to recall M.D.; Confrontation Clause not violated |
Key Cases Cited
- United States v. Spotted Horse, 914 F.3d 596 (8th Cir. 2019) (Rule 16 does not require listing every item an expert reviewed)
- United States v. Brun, 416 F.3d 703 (8th Cir. 2005) (standard of review for Confrontation Clause issues)
- Crawford v. Washington, 541 U.S. 36 (2004) (testimonial statements generally barred unless witness testifies and is subject to cross-examination)
- United States v. Charboneau, 613 F.3d 860 (8th Cir. 2010) (statements to forensic interviewers may be testimonial)
- United States v. N.B., 59 F.3d 771 (8th Cir. 1995) (when declarant testifies, issue is whether trial provided opportunity for effective cross-examination)
- Delaware v. Fensterer, 474 U.S. 15 (1985) (Confrontation Clause guarantees opportunity for effective cross-examination, not cross-examination satisfying every defensive wish)