UNITED STATES, Aрpellee v. Thomas C. FLESHER, Specialist, U.S. Army, Appellant.
No. 13-0602. Crim.App. No. 20110449.
U.S. Court of Appeals for the Armed Forces.
Argued Feb. 24, 2014. Decided July 8, 2014.
73 M.J. 303
For Appellant: Captain Robert N. Michaels (argued); Lieutenant Colonel Jonathan F. Potter and Major Amy E. Nieman (on brief); Captain J. Fred Ingram.
For Appellee: Captain Daniel H. Karna (argued); Colonel John P. Carrell, Lieutenant Colonel James L. Varley, and Major Robert A. Rodrigues (on brief).
Judge OHLSON delivered the opinion of the Court.
We granted review in this case to determine whether the military judge abused his discretion when he allowed a putative expert witness to testify at trial. Under the unusual set of circumstances present in this case, we conclude that the military judge did abuse his discretion by admitting this testimony, and that this error likely had a substantial influence on the panel members’ findings.
In the summer of 2010, Appellant was a specialist in the U.S. Army and lived in on-base housing at Dugway Proving Ground in Utah. A family with two teenage children—a sixteen-year-old girl (S.A.) and her younger brother—lived across the street. The Government alleged at trial that on June 29, 2010, Appellant invited these two teenagers to his home and plied them with alcohol. They became intoxicated and eventually returned to their own home and went to bed. After midnight, Appellant went to the teenagers’ house and crawled in the bedroom window of the sleeping S.A. without her knowledge or permission. She awoke to find Appellant removing her pants. Apрellant then pressed his body against S.A., covered her mouth with his own, and held down her wrists as he proceeded to engage in nonconsensual sexual intercourse with her. S.A. later stated that although she struggled with Appellant she did not fight back more fiercely or call out for help because she was drunk, confused, scared, and embarrassed. Appellant ultimately left the home without anyone other than S.A. knowing of his presence. S.A. telephoned a friend about thirty minutes after the incident, however, and the next morning this friend and the friend‘s mother notified local law enforcement.
In contrast to the Government‘s version of events, Appellant testified that S.A. had invited him to come to her bedroom on the night in question and that the sex was consensual. In seeking to corroborate the consensual nature of the encounter, defense counsel established through the combined testimony of several witnesses that S.A.‘s brother was sleeping in an adjoining room—with the door between these two rooms ajar—and yet S.A. did not alert her brother to Appellant‘s presence. During closing arguments, defense counsel also pointed out that even after Appellant had left the premises, S.A. did not immediately notify her parents or the police about the alleged sexual assault. Appellant also testified that S.A. had a motive for falsely accusing him of sexual assault, noting that he had told her of his disapprоval of her drug use, and she may have been afraid that he would report this illegal activity to her parents.
At his court-martial, Appellant was charged with aggravated sexual assault, burglary, and two specifications of furnishing alcohol to a minor, in violation of Articles 120, 129, and 134,
In the course of the trial, the military judge permitted the Government to call a
It is the testimony of this putative expert that is the crux of the matter before us. Specifically, on Appellant‘s petition we granted review of the following issue:
Whether the military judge abused his discretion when he admitted the testimony of a putative expert witness in violation of the Military Rules of Evidence and case law on bolstering, expert qualifications, relevance, and the appropriate content and scope of expert testimony.
As explained in greater detail below, we find that the military judge did abuse his discretion in handling this matter, and that this error was prejudicial to Appellant. Accordingly, we affirm in part and reverse in part.
BACKGROUND
On May 19, 2011, two weeks prior to the beginning of Appellant‘s court-martial, the Government provided defense counsel with a witness list. This list included Ms. Sarah Falk, a former SARC at Fort Carson, Colorado. However, the Government did not identify Ms. Falk other than to note her current place of employment. Defense counsel contacted Ms. Falk and interviewed her. Defense counsel then contacted trial counsel to ask if he intended to call Ms. Falk as an expert witness. Based on these conversations, defense counsel moved for a continuance, noting the recent notification of the Government‘s intent to call an expert witness and arguing that the defense needed more time to prepare for Ms. Falk‘s expected testimony. The Government opposed the defense‘s motion via e-mail to the military judge, stating that Ms. Falk would not interview the victim or testify about the “psychology of trauma,” but instead would testify about the “common behaviors and responses” of sexual assault victims. The defense filed a reply brief the next day. In this reply, the defense specifically asked for a hearing pursuant to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), because Ms. Falk‘s testimony appeared to “lack any scientific methodology.”1
Two days later the military judge sent an e-mail to counsel on both sides. In the e-mail the military judge addressed the defense‘s request for a continuance:
Re: the Defense motion for a continuance—As I understand the issue, Ms. Falk is going to testify she has seen lots of alleged sexual assault victims. Some act this way, some act that way, and the way some alleged victims act might not be consistent with how one would think they would act. Is this correct, Gov‘t? If so, Defense, I would guess that Ms. Falk will agree on cross that there is no usual way alleged victims react. Each alleged victim is different. I would also think you could get any [Sexual Assault Nurse Examiner]
(for example) between now and next week to come in and testify to that. It doesn‘t take any preparation. If I am correct in all of this, why do you need a delay?
This e-mail from the military judge did not address the question of the admissibility of Ms. Falk‘s testimony; it merely assumed it. The military judge also failed to explicitly rule one way or another on the Motion for Continuance.
Defense counsel responded via e-mail and reiterated the defense‘s contention that Ms. Falk‘s testimony was “not proper expert testimony.” Defense counsel again requested “a Daubert hearing regarding [Ms. Falk‘s] methodology before she be allowed to testify as an expert on the behaviors of the alleged rape victims.” He also requested discovery from Ms. Falk.
The next day the military judge sent another e-mail. In response to the defense‘s request for a hearing and discovery he wrote:
Regarding Ms. Falk: Defense, you can interview her for that information. I will consider any motions or arguments you present, but it is unlikely we will have a Daubert hearing. The Gov‘t confirmed my understanding of her testimony. She is simply going to say she has seen the different way alleged victims react.
In response to the military judge‘s e-mail, on May 28, defense counsel filed a Motion to Compel Expert or to Exclude Expert Testimony. In this motion the defense argued that Ms. Falk‘s testimony should be excluded pursuant to Military Rules of Evidence (M.R.E.) 402 and 403 because it was not relevant and presented a substantial risk of unfair prejudice that outweighed its probative value. In the alternative, if Ms. Falk‘s testimony was allowed, the defense asked the court to appoint Dr. Thomas Grieger, a putative expert in counterintuitive behaviors, as an expert for the defense. There is no indication in the record that the military judge took any formal action on the defense‘s motion to compel Dr. Grieger or exclude Ms. Falk until the morning of trial.
The case proceeded to trial on the original trial date of June 1. The military judge began the court-martial with an
[M]y understanding was that they were going to ask several things. “Have you observed alleged victims? How many in the past?” And, “Some act this way; some act that way.” And, “No two victims are the same.” When I sent back the email saying, “Is that correct, Counsel?” they confirmed that is correct. And what I indicated to the defense at that time was, based on that, I was not inclined to grant a continuance....
The military judge further explained that the defense‘s motion to compel the production of Dr. Grieger was without merit because the Government had provided, in lieu of Dr. Grieger, a Sexual Assault Nurse Examiner (SANE) who could provide the same testimony.2 When the military judge finished summarizing the past proceedings, both counsel stated that they had no objections to this summary.
At this point, defense counsel requested “the chance, to voir dire the expert witness from the [G]overnment before she is brought in front of the panel.” This request set off another round of discussions about whether or not the defense‘s requested expert, Dr. Grieger, was necessary in light of the limited nature of Ms. Falk‘s expected testimony. The defense argued that regardless of the terminology used, Ms. Falk would be providing testimony on the counterintuitive behav-
MJ: And my understanding, Government, you are not going to ask your expert about why say, for example, she didn‘t scream? My understanding was you were just going to ask her: How many have you done? I have seen a hundred. Is it unusual for an alleged victim not to scream? No that is not unusual.
ATC: Correct—
MJ: Not to say this is why they don‘t scream.
ATC: Exactly, Your Honor. Just to provide that basis, somebody who deals with—
MJ: Sure. Okay.
DC: Your honor, the defense would argue if that‘s the extent of it, that it would also be irrelevant.... What we are interested in is what happened in this case.
ATC: And, Your Honor, if in any[ ]way the defense case comes up and she didn‘t scream for her mother or she didn‘t call 911 immediately, you know, without that testimony we are kind of lost. Our case in chief is defici[en]t without that testimony coming in.
MJ: And, Defense, based on my experience all these experts will say some scream, some don‘t, some delay reporting, some report immediately, and I would think that the government‘s expert would admit all that on cross-examination. Say, yeah, some people scream, some don‘t, some delay reporting, and some don‘t.
....
... But again, Government, your expert is not going to testify about this is why she wouldn‘t have screamed, or this is why some victims don‘t scream.
ATC: No, Your Honor.
MJ: She is not going to say any of that.
ATC: That is well beyond her expertise. I mean she could conjecture but it, obviously, wouldn‘t be the same.
MJ: Right.
Aftеr some additional discussion, the military judge ruled on the motion to compel. Relying upon what he had “seen in the past” and the limits on Ms. Falk‘s expected testimony, the military judge concluded that the SANE assigned to the defense could provide the same assistance as Dr. Grieger. The defense‘s motion for its own expert was, therefore, denied. The questions raised pretrial about the admissibility of Ms. Falk‘s expert testimony were not addressed at this point except with respect to the military judge‘s statements concerning the narrow boundaries that he would impose on her testimony. The military judge made no explicit ruling on the motion to exclude Ms. Falk.
At the close of the Article 39(a), UCMJ, session, trial testimony began with S.A. and her brother. Defense counsel elicited testimony from both witnesses that S.A.‘s brother had a habit of sleeping on the couch outside her room and that on the evening in question he was sleeping there with the door partially open. Next, the members were excused and another Article 39(a), UCMJ, session was called during which the parties conducted voir dire of Ms. Falk. In response to questions from defense counsel, Ms. Falk provided the court with the following information: she had a “sociology based” bachelor‘s degree that did not involve clinical counseling; she had not conducted any clinical counseling for sexual assault victims, but instead had “advocated for” what she estimated to be a “couple thousand” such individuals; “[m]ore than a third” of these cases had resulted in a court-martial or a civilian trial; “at least a fourth” of those cases had ended in a convic-
The military judge then urged trial counsel to “ask the witness the three things I believe you said you were going to have her testify about.” Trial counsel reeled off the following list:
The questions I do intend to ask this witness [are] based on all the victims she has seen; how often does a victim scream or not scream; how often is the most she has seen; and how many fight back or don‘t fight back; how many involve a stranger versus a non-stranger, someone they met at some point in some way; and then how many she‘s seen where the first report or the first outcry is to law enforcement as opposed to anyone else other than law enforcement.
However, the military judge did not require trial counsel to actually pose any of these specific questions to Ms. Falk, and she provided no answers to them during this Article 39(a) session. The military judge simply asked, “Any other questions based on that?” After a few additional background questions by counsel for both parties, Ms. Falk was excused.
Without hearing Ms. Falk‘s expected testimony in her own words or any arguments about the admissibility of Ms. Falk‘s testimony pursuant to the Military Rules of Evidence (M.R.E.)—or pursuant to the holdings in Daubert or Houser3—and without giving any explanation of his reasoning, the military judge then made his ruling:
Government, I am going to let you ask three things. The ones about whether or not that most victims put up a fight or not; scream or not; and who their first report is made to, law enforcement or not law enforcement. But I am not going to let you ask about whether or not most cases it is a stranger or not.
Defense counsel objected on the grounds of relevance. The military judge “noted” the objection, but did not sustain or overrule the objection.
When the members returned, the court heard testimony from S.A.‘s stepfather, and then Ms. Falk took the stand. Trial counsel reviewed her educational and professional experience, which included a bachelor‘s degree in law and society, her work towards a graduate certificate in public policy, and both her civilian and military training in “victim services.” Ms. Falk testified that she worked previously as the SARC at Fort Carson. As Ms. Falk explained it, a SARC‘s job is to “make contact with the victim upon receipt of a report of sexual assault. You walk them through the medical, legal and investigative processes.” Ms. Falk testified that she had personally worked with “thousands” of victims of sexual assault. The Government then askеd to have Ms. Falk recognized as an expert in “sexual assault victim responses.” The defense renewed its objection “as previously stated” to Ms. Falk‘s admission as an expert. The military judge then said:
MJ: Ms. Falk will be recognized as an expert in sexual assault—as a sexual assault response coordinator.
ATC: Thank you, Your Honor.
MJ: Not in sexual assault victim responses or however you put it.
The remainder of Ms. Falk‘s testimony on direct examination was very limited. The expert testimony at the center of this appeal consists primarily of three short questions and answers:
Q: ... In your experience in dealing with victims, how often have you had a sexual assault victim who has fought back against their attacker?
A: Almost never. And it‘s generally with an unknown subject, with somebody that that person isn‘t familiar with; it‘s a stranger.
Q: In your experience in dealing with victims, how often have you had a sexual assault victim who at the time of the assault screamed or called for help?
A: Again, almost never. And, you know, they report afterwards that generally there is the fear of escalating the violence or fear that they are going to be harmed even worse than they already are if they yell or scream for help or upset the individual.
Q: Okay. In your experience, how often does a victim report first to law enforcement? The first person they call is law enforcement.
A: I can‘t think of a specific case where they do report spеcifically to law enforcement. It‘s just not something common. They generally are going to go to a friend or a family member.
DISCUSSION
I. Standard of Review
We review de novo the question of whether the military judge properly performed the required gatekeeping function of M.R.E. 702. Griffin, 50 M.J. at 284. That is, we must determine de novo whether the military judge “properly followed the Daubert framework.” Id. However, we review for abuse of discretion the decision by the military judge to permit Ms. Falk to testify as an expert witness, the limitations he placed on the scope of her permitted testimony, and his enforcement of those limitations. United States v. Billings, 61 M.J. 163, 166-67 (C.A.A.F. 2005).
A military judge abuses his discretion when his findings of fact are clearly erroneous, the court‘s decision is influenced by an erroneous view of the law, or the military judge‘s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law. United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008). “An ‘abuse of discretion’ exists where ‘reasons or rulings of the’ military judge are ‘clearly untenable and ... deprive a party of a substantial right such as to amount to a denial of justice‘; it ‘does not imply an improper motive, willful purpose or intentional wrong.‘” United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987) (alteration in original) (quoting Guggenmos v. Guggenmos, 218 Neb. 746, 359 N.W.2d 87, 90 (1984)).
II. The Record of Trial
We begin by noting that the military judge did not approach his evidentiary rulings in a methodical manner. Rule for Courts-Martial (R.C.M.) 801(a)(4) says that the military judge “shall ... rule on all interlocutory questions and all questions of law raised during the court-martial.” R.C.M. 801(f) further states that “[a]ll sessions involving rulings ... made ... by the military judge ... shall be made a part of the record.” R.C.M. 905(d), which governs motions, states that “[a] motion made before pleas arе entered shall be determined before pleas are entered unless ... the military judge for good cause orders that determination be deferred until trial of the general issue or after findings.” R.C.M. 905(d) further states, “[w]here factual issues are involved in determining a motion, the military judge shall state the essential findings on the record.”
We have previously held that objections made at trial may not be “evaded or ignored.” United States v. DeYoung, 29 M.J. 78, 80 (C.M.A. 1989). It is the duty of the military judge to “affirmatively” rule. Id.; see also United States v. Mullens, 29 M.J. 398, 399 (C.M.A. 1990) (“We again hold that the military judge is required by Article 51(b) and R.C.M. 801(a)(4) ... to rule on these objections.“). Further, we have previously explained why it is necessary for the military judge to make a clear record. “We do not expect record dissertations but, rather, a clear signal that the military judge
However, the reverse is also true. If the military judge fails to place his findings and analysis on the record, less deference will be accorded. As the United States Army Court of Criminal Appeals has recognized:
When the standard of review is abuse of discretion, and we do not have the benefit of thе military judge‘s analysis of the facts before him, we cannot grant the great deference we generally accord to a trial judge‘s factual findings because we have no factual findings to review. Nor do we have the benefit of the military judge‘s legal reasoning in determining whether he abused his discretion....
United States v. Benton, 54 M.J. 717, 725 (A.Ct.Crim.App. 2001) (citations omitted).
The predecessor to the United States Air Force Court of Criminal Appeals has similarly explained the difficulties faced by an appellate court when the military judge fails to comply with R.C.M. 905(d). “Without a proper statement of essential findings, it is very difficult for an appellate court to determine the facts relied upon, whether the appropriate legal standards were applied or misapplied, and whether the decision amounts to an abuse of discretion or legal error.” United States v. Reinecke, 30 M.J. 1010, 1015 (A.F.C.M.R. 1990), rev‘d on other grounds by United States v. Strozier, 31 M.J. 283 (C.M.A. 1990); see also United States v. Doucet, 43 M.J. 656, 659 (N.-M.Ct.Crim.App. 1995) (“When factual issues are involved in ruling on a motion, a trial judge has a mandatory sua sponte duty to state the ‘essential findings’ on the record which support his or her ruling.” (citations omitted)).4
Here, the military judge delayed ruling on the defense‘s request for a continuance and the defense‘s motion to compel Dr. Grieger until the morning of trial, denied the motion to compel based on his experience in other cases rather than strictly on the facts of this particular case, did not affirmatively address the defense‘s request for a Daubert hearing, did not address the Houser factors, did not explicitly deny on the record the defense‘s mоtion to exclude the testimony of Ms. Falk, did not provide any findings of fact, and did not apply the law to the facts to support his decision to admit Ms. Falk‘s expert testimony. Of these concerns, the most important is the fact that the military judge did not conduct even a rudimentary Daubert hearing—despite the fact that the defense specifically and repeatedly requested one—or even briefly address the various Houser factors. As a result, we are left with a limited understanding of the military judge‘s decision-making process and, accordingly, we give his decisions in this case less deference than we otherwise would.
To be clear, we do not hold that a military judge is always required to conduct a formal Daubert hearing or to precisely address each of the factors spelled out in Houser when deciding whether and how a proffered expert should testify. United States v. Sanchez, 65 M.J. 145, 149 (C.A.A.F. 2007) (quoting Daubert, 509 U.S. at 594). “The inquiry is ‘a flexible one.‘” Id. Further, in regard to our de novo review of the process in the instant case, because the military judge did permit voir dire and placed substantial limitation on the expert
III. Analysis
A. Military Rule of Evidence 702
As a threshold matter, when deciding whether Ms. Falk would be allowed to testify, the military judge was obligated to determine whether her testimony would be helpful to the panel.
In the past we have made it clear that 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.” Houser, 36 M.J. at 398; see also United States v. Halford, 50 M.J. 402, 404 (C.A.A.F. 1999) (rape trauma syndrome evidence allowed to explain common behavioral characteristics in “cases of non-consensual sexual encounters“); United States v. Peel, 29 M.J. 235, 241 (C.M.A. 1989), cert. denied, 493 U.S. 1025, 110 S.Ct. 731, 107 L.Ed.2d 750 (1990) (allowing expert to testify that “it was not inconsistent behavior for a rape victim not to immediate[ly] report the offense” or to “act[] as if the rape had never happened“); United States v. Reynolds, 29 M.J. 105, 108 (C.M.A. 1989) (allowing clinical psychologist to testify in order to “counter any adversе inferences which might be drawn from the fact that the victim did not immediately report the offense“); United States v. Carter, 26 M.J. 428, 429 (C.M.A. 1988) (holding that rape trauma syndrome evidence meets the requirements of
We again affirm the appropriateness of 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. However, it is questionable whether Ms. Falk‘s testimony was truly helpful under the particular circumstances present in the instant case.
To begin with, Ms. Falk was not an expert in rape trauma syndrome. Indeed, trial counsel conceded that point, and the military judge explicitly sought to limit Ms. Falk‘s testimony to such unexceptional observations as “some [people] scream, some don‘t, some delay reporting, and some don‘t.” Additionally, the military judge admitted that this limited set of observations was “almost common knowledge.” Further, S.A. herself testified explicitly and clearly about why she reacted the way she did both during and after the incident with Appellant. Each of these points thus diminishes the “helpfulness” of Ms. Falk‘s testimony. However, we ultimately conclude that the limited type of testimony that Ms. Falk was supposed to provide, even when it is elicited from a person with Ms. Falk‘s qualifications, may be appropriate in certain circumstances. We thus proceed to the question of whether the record before
B. The Houser Factors5
1. Qualifications of the Expert
The military judge placed little focus on the foundational question of whether Ms. Falk truly was an “expert witness.” There are several possible explanations for this inattention. Perhaps the military judge thought he did not need to explore this issue in depth because the
We further note that the record reflects significant confusion between the military judge and the trial counsel about the exact nature of Ms. Falk‘s proffered expertise. After the Government asked to have Ms. Falk recognized as an expert in “sexual assault victim responses” the following colloquy ensued:
MJ: Ms. Falk will be recognized as an expert in sexual assault—as a sexual assault response coordinator.
ATC: Thank you, Your Honor.
MJ: Not in sexual assault victim responses or however you put it.
This exchange raises several questions. We first question how an individual can be characterized as an expert based simply on his or her job title. We next question whether there was ever a “meeting of the minds” between the military judge and the trial counsel about what Ms. Falk was an expert on, and thus we ultimately question whether there was ever a careful determination on the military judge‘s part about the qualifications of Ms. Falk to serve as an expert witness in this particular case and under these particular circumstances. Finally, we note thаt the qualitative differences between this witness‘s practical victim advocacy experience and the qualifications of witnesses in other cases where we have approved of testimony on counterintuitive behavior make it more difficult for us to summarily accept, without more specific factual findings and legal analysis of the issue on the record, the implied conclusion of the military judge that this witness was qualified to testify as she did.6
2. Subject Matter of Expert Testimony
As stated above, 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 Ms. Falk 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 Ms. Falk could not testify on this point.7 And yet, Ms. Falk clearly did testify about why sexual assault victims may act in a certain manner,8 and the trial counsel did not rein her in and the military judge did not issue a curative instruction.
We have previously held that an expert witness may not offer opinions that “exceed[] the scope of the witness‘s expertise.” United States v. Birdsall, 47 M.J. 404, 410 (C.A.A.F. 1998). As one federal court explained, an expert witness “must ‘stay within the reasоnable confines of his [or her] subject area.‘” Trilink Saw Chain v. Blount, Inc., 583 F.Supp.2d 1293, 1304 (N.D.Ga. 2008) (quoting Lappe v. Am. Honda Motor Co., 857 F.Supp. 222, 227 (N.D.N.Y. 1994)). Other federal courts have reached the same conclusion. See, e.g., United States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 2005) (chemistry consultant not qualified as expert in controlled substances); Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 715 (8th Cir. 2001) (hydrologist specializing in flood risk management not qualified to testify as expert on safe warehousing practices); Redman v. John D. Brush & Co., 111 F.3d 1174, 1179 (4th Cir. 1997) (metallurgic engineer not qualified to testify as expert in design of safes). In this case, under these circumstances, it was error to permit Ms. Falk 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.
3. Basis for Expert Testimony
The third Houser factor addresses the facts and data that an expert is allowed to rely on when forming his or her opinion. Under
4. Relevance
During an
As noted supra, we previously have held that testimony on the counterintuitive behaviors of rape victims is relevant. However, in the instant case, the military judge steadfastly refused to treat Ms. Falk‘s testimony as testimony on counterintuitive behaviors. Instead, at each turn when the military judge acquiesced to the Government‘s request to have Ms. Falk testify, he chipped away at the scope and the nature of her testimony. By so doing, he also chipped away at the relevance of Ms. Falk‘s testimony, and he did so without stating on the record his reasoning. This state of affairs complicates our review of the matter.
5. Reliability
The Government, as the proponent of Ms. Falk‘s expert testimony, had the burden of demonstrating the reliability of Ms. Falk‘s testimony. Billings, 61 M.J. at 166. 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 reliability factors or on “alternative indicia of reliability.” Id. at 168 (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)).9 And yet, there is little information in the record to indicate that the Government squarely addressed these points specifically, or the issue of Ms. Falk‘s reliability more generally.
The Government did proffer that Ms. Falk would base her testimony on her personal interactions with individuals who were sexually assaulted, and
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.
6. Probative Value
Finally, there is virtually no evidence in the record that the military judge weighed the probative value of Ms. Falk‘s pending testimony against its potential prejudicial effect. Indeed, the probative value of Ms. Falk‘s testimony appears to have been quite limited. To begin with, it is an established principle “that expert testimony cannot be used solely to bolster the credibility of the government‘s fact-witnesses by mirroring their version of events.” United States v. Cruz, 981 F.2d 659, 664 (2d Cir. 1992). A military judge must distinguish between an expert witness whose testimony about behaviors of sexual assault victims that are subject
In the instant case, S.A. gave a direct and credible explanation for why she did not scream or struggle more or immediately notify her parents of the sexual assault. Thus, Ms. Falk‘s purported expert testimony was not helpful because the panel members could understand what had happened based on S.A.‘s own explanation. Therefore, once the military judge had placed strict limitations on Ms. Falk‘s testimony—which thereby rendered the observations of the expert witness “almost common knowledge“—its probative value had been severely eroded.
On the other hand, the prejudicial effect of Ms. Falk‘s testimony was quite likely substantial in this case. This was a classic “he said-she said” case, with the two primary witnesses giving diametrically opposed testimony on the critical issue of whether the sexual intercourse was consensual. “[I]n cases of this sort where there is often a ‘one-on-one’ situation, anything bolstering the credibility of one party inherently attacks the credibility of the other....” United States v. August, 21 M.J. 363, 365 n. 4 (C.M.A. 1986). Therefore, the danger of bolstering in this case was significant. More importantly, actual bolstering occurred in this case because after S.A. already had clearly and directly testified to the panel members why she did not struggle more with her assailant, Ms. Falk provided additional testimony on the same point of why victims do not struggle more with their attackers. This bolstering was of particular concern because even the Government conceded that Ms. Falk did not have a legitimate basis to testify on this point, and the military judge had explicitly placed such testimony by Ms. Falk off-limits.13
Summary
Thus, although limited testimony from a witness with qualifications similar to those of Ms. Falk may be appropriate in certain circumstance, we conclude that the military judge did not place sufficient evidence on the record to demonstrate that he acted within the bounds of his discretion when he authorized Ms. Falk to testify as an expert witness in the instant case. Therefore, we find that he erred. Finding error, we must test for prejudice.
C. Prejudice
Under
To determine whether the Government has carried its burden, we weigh four factors: (1) the strength of the Government‘s case; (2) the strength of the defense‘s case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question. Id. at 98.
Although these are four distinct factors, all of them revolve around one single point: namely, the central question at trial was whether S.A. consented to the sexual intercourse or whether Appellant forced himself on her or took advantage of her drunken state. The Government evidence on this issue consisted of S.A.‘s clear testimony that she was drunk, that she did not invite Appellant to her room, that she did not consent to have sex with him, and that she repeatedly told him “no.” In juxtaposition, the defense put Appellant on the stand where he testified that the alleged assault was an invited, consensual sexual encounter. The result was a “he said-she said” case, where the outcome largely depended on whether the panel found S.A. or Appellant more credible.
Under this scenario, Ms. Falk‘s testimony could have been of considerable significance in the minds of the panel members because it seemed to corroborate and ratify S.A.‘s version of events. Therefore, we dо not find that the Government has met its burden of demonstrating that Ms. Falk‘s improperly admitted testimony “did not have a substantial influence on the ... findings.” Gunkle, 55 M.J. at 30.
DECISION
The decision of the United States Army Court of Criminal Appeals is affirmed in part and reversed in part. The part of the decision regarding Charge III and its Specifications is affirmed. The part of the decision affirming the finding of guilty to the offense of aggravated sexual assault and the sentence is reversed, and the finding of guilty to that offense and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing on the charge of aggravated sexual assault and the sentence is authorized.
BAKER, Chief Judge (dissenting):
The military judge serves as the gatekeeper in assessing expert opinion evidence in accordance with Military Rule of Evidence (M.R.E.) 702. United States v. Houser, 36 M.J. 392 (C.M.A. 1993); see also United States v. Billings, 61 M.J. 163, 167 (C.A.A.F. 2005). The threshold for admissibility of expert testimony is whether the testimony is relevant, reliable, and will assist the trier of fact. Houser, 36 M.J. at 399-400. However, the majority appears to adopt a new and expansive test for admission of testimony by a Sexual Assault Response Coordinator (SARC) in sexual assault cases. Heretofore, Houser served as the threshold for admission of evidence under
The majority states, as the Court did in Houser, that it is appropriate to “allow[ ] expert testimony on rape trauma syndrome framework.” Id. at 311 (internal quotation marks and citation omitted). The majority further asserts that “the most important [concern] is the fact that the military judge did not conduct even a rudimentary Daubert hearing.” Id. at 312.
A. Standard of Review
A military judge‘s decision permitting expert testimony is reviewed for an abuse of discretion. United States v. Billings, 61 M.J. 163, 166 (C.A.A.F. 2005). “[W]hen judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment....” Houser, 36 M.J. at 397 (internal quotation marks and citations omitted). Where the military judge‘s analysis is clear and on the record it receives greater deference. United States v. Bush, 47 M.J. 305, 311 (C.A.A.F. 1997). In the absence of analysis on the record, an appellate court will necessarily review the admission of evidence de novo. See, e.g., Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 760 (7th Cir. 2010); Naeem v. McKesson Drug Co., 444 F.3d 593, 607-08 (7th Cir. 2006). We do not grant relief where expert testimony is erroneously admitted unless the error was prejudicial.
B. M.R.E. 702
This Court also applies a “liberal” standard for admission of expert testimony. United States v. Diaz, 59 M.J. 79, 89 (C.A.A.F. 2003) (citation omitted); see also United States v. Peel, 29 M.J. 235, 241 (C.M.A. 1989) (“[A]dmissibility of expert testimony has been broadened. Indeed, anyone who has substantive knowledge in a particular field which exceeds that of the average court member arguably is an expert within that field; and the type of qualification within that field that the witness possesses goes to the weight to be given the testimony and not to its admissibility.“).
C. Application of the Standard
In this case, the Government offered testimony by Ms. Falk, the SARC, in the form of her specialized knowledge on the common behaviors of sexual assault victims. This knowledge derived from Ms. Falk‘s experience as a SARC and as an advocate for “thousands” of victims of sexual assault. Because the military judge applied
Relevance. The first question is whether the proffered evidence was relevant. Appellant argued by implication that no victim would respond to sexual assault (or fail to respond) as the victim here did. In particular, the defense suggested that the victim‘s failure to scream or call out to her brother or other family members in her home demonstrated consent. The Government was therefore entitled to rebut this inference with properly admitted evidence to prove its case. As the majority affirms and as this Court stated in Houser:
Certain behavioral patterns such as fаilure to resist or delay in reporting a rape could be confusing to the factfinders because these may be counter-intuitive.... It is logically relevant for an expert to explain that certain behavior patterns occur in a certain percentage of rape cases or child abuse cases. This is not to say that the offense occurred but, rather, that these events may happen to some victims. Without the testimony the members are left with their own intuition.
Houser, 36 M.J. at 399. Consequently, unless this Court is overruling Houser, the expert testimony was relevant.
Reliability. Since the majority appears to concede that Ms. Falk‘s testimony did not lack relevance, the reliability of her testimony will determine whether the military judge abused his discretion. Reliability, in turn, depends on whether we continue to consider the Houser factors or adopt the majority‘s approach, which would effectively make Daubert the sole and mandatory test.
Ms. Falk was an experienced advocate for victims of sexual assault who was hired by the Department of Defense to serve as a SARC. A SARC is “[t]he single point of contact at [a military] installation or within a geographic area who oversees sexual assault awareness, prevention, and response training; coordinates medical treatment, including emergency care, for victims of sexual assault; and tracks the services provided to a victim
It seems to me it is not an abuse of discretion to conclude that a Department of the Army-trained SARC who has interviewed more than one thousand sexual assault victims would have specialized knowledge about common victim behaviors. The reliability of her testimony depends on knowledge and experience, not methodology or theory. All the more so when the military judge limited her testimony to three questions the answers to which were necessarily based on specialized knowledge drawn from informed observation as opposed to specialized scientific or technical methods. He directed trial counsel to ask Ms. Falk only “whether or not ... most victims put up a fight or not; scream or not; and who their first report is made to, law enforcement or not law enforcement.” Significantly, Ms. Falk did not testify that the behavior of the victim was consistent with that of the victims she had interviewed.
The majority nonetheless concludes that the military judge abused his discretion. Their principal objection appears to be that Ms. Falk was not an “expert in rape trauma syndrome,” but the military judge did not admit her testimony on that basis. Flesher, 73 M.J. at 313. Neither is there a requirement that she be one. The majority also concludes the military judge erred by not conducting a Daubert analysis. Id. at 312-13. But Ms. Falk was nоt offering scientific evidence. She was offering experiential evidence—specialized knowledge—based on thousands of victim interviews. Her testimony did not involve the introduction of a “theory or technique” that “can be (and has been) tested” and “subjected to peer review and publication” or has a “known or potential rate of error.” Daubert, 509 U.S. at 593-94.
Daubert itself emphasized that the factors were neither exclusive nor dispositive. Id. at 593. In addition, the Advisory Committee‘s note to the 2000 amendment to
Assists the Factfinder. The third and final question the Houser test asks is whether the testimony will assist the members as factfinders. The answer to this question largely hinges on the analysis in Houser regarding counterintuitive behavior. 36 M.J. at 400. The fact is the military judge strictly limited Ms. Falk‘s testimony. In the context of this case, in which the defense implied the victim did not act like a “real” victim, I do not believe the military judge erred by allowing the Government to offer the specialized knowledge of a SARC who had assisted thousands of victims of sexual assault since she could assist the factfinder in assessing defense counsel‘s argument. And, of course, Ms. Falk‘s testimony was not offered in a vacuum.
D. Prejudice
Even if the military judge erred, Appellant was not prejudiced. Defense counsel‘s own expert witness, Christina Thomas, a Sexual Assault Nurse Examiner and emergency department nurse, served as an adequate counterweight to Ms. Falk. Her education and experience matched and arguably exceeded that of Ms. Falk. Ms. Thomas testified that “people respond to trauma or stressors in all the ways of the emotional spectrum. There is no typical way for someone to react.” Combined with Ms. Falk‘s testimony, Ms. Thomas‘s testimony made clear to the members that although many victims of sexual assault respond with behaviors that are oftеn counterintuitive to the public‘s expectations, they do not all react alike. She conveyed to the members that there is no single, “correct” response to sexual assault.
Defense counsel also cross-examined Ms. Falk and elicited from her an acknowledgment that as a victim advocate, she was required to believe the victim‘s accusation of sexual assault. The members were thus aware of Ms. Falk‘s position and function. They were not left with the impression that she was capable of evaluating the truth of a victim‘s claim. Her testimony merely reflected her own experience and the consensus of the academic research on sexual assault that a victim‘s fear, shame, and guilt commonly result in his or her failure to report the crime immediately. The members, therefore, were provided the proper context in which to evaluate the victim‘s credibility.
Finally, the evidence against Appellant was strong. His failure even to acknowledge that he and the victim were intoxicated that night even though the victim had had at least three mixed drinks could have suggested to a reasonable trier of fact that he was being less than truthful. Appellant‘s claim that he was concerned for the victim‘s well-being while providing the sixteen-year-old with alcohol and cigarettes also apparently impacted his credibility. Finally, Appellant never explained why, if the victim and he had planned to have sexual intercourse, they did not do so in his home, alone, instead of in the victim‘s home where three other people, including her stepfather and mother, were sleeping. These facts, rather than Ms. Falk‘s brief testimony, were the reasons the members concluded that Appellant was guilty of sexual assault.
RYAN, Judge (dissenting):
Contrary to the majority‘s conclusion, the military judge abandoned his role as a gatekeeper in the first instance. Nonetheless, I agree with Chief Judge Baker that there was no prejudice. I respectfully dissent.
A.
The framework for evaluating expert testimony is well established. ”
Although a military judge “must have considerable leeway” to decide how to test an expert‘s reliability and whether an expert‘s testimony is sufficiently reliable, id. at 152, a military judge does not have the “discretion to abandon the gatekeeping function.” Id. at 158-59 (Scalia, J., concurring). When a military judge properly exercises his role as a gatekeeper, we review the military judge‘s rulings regarding the admission of expert testimony for an abuse of discretion. United States v. Griffin, 50 M.J. 278, 284 (C.A.A.F. 1999); see also Kumho, 526 U.S. at 154. Nevertheless, it is necessary to “review de novo the question whether the military judge properly followed the Daubert framework” in performing its role as a gatekeeper. Griffin, 50 M.J. at 284; see also United States v. Roach, 582 F.3d 1192, 1206 (10th Cir. 2009) (“[W]e review de novo the question of whether the district court applied the proper standard and actually performed its gatekeeper role in the first instance. We then review the trial court‘s actual application of the standard in deciding whether to admit or exclude an expert‘s testimony for an abuse of discretion.“) (alteration in original) (emphasis added) (citation omitted).1
B.
The problem in this case is that the military judge made no attempt to apply the framework of Daubert, Kumho, United States v. Houser, 36 M.J. 392 (C.M.A. 1993),
The only on-the-record discussion of Ms. Falk‘s expertise did not focus on Ms. Falk‘s qualifications and reliability; rather, it focused on the conclusions the military judge expected Ms. Falk to reach based on the testimony of other experts in other cases. For example, the military judge observed:
Defense, based on my experience all these experts will say some [victims] scream, some don‘t, some delay reporting, some report immediately, and I would think that the government‘s expert would admit all that on cross-examination.... [W]here I have seen this, is that the government more usually feels compelled to present that evidence so when they stand up and argue to the panel that‘s not unusual for someone not to scream.... They feel compelled to present that evidence so that they don‘t get the objection from the defense saying, hey, those are facts not in evidence.
This approach is plainly contrary to the Daubert framework, which requires the focus “be solely on principles and methodology, not on the conclusions that they generate.” See 509 U.S. at 595. Moreover, under the Daubert framework, the military judge‘s actual task is “to decide whether this particular expert had sufficient specialized knowledge to assist the jurors in deciding the particular issues in the case.” Kumho, 526 U.S. at 156 (emphasis added) (citations omitted) (internal quotation marks omitted). Had he done so, it should have been plain, for the reasons identified by the majority, see, e.g., United States v. Flesher, 73 M.J. 303, 314 (C.A.A.F. 2014), that Ms. Falk would not provide the kind of counterintuitive behavior testimony we have endorsed in other cases, see, e.g., United States v. Pagel, 45 M.J. 64, 68 (C.A.A.F. 1996), but instead only inherently biased, hearsay-based testimony on an area of expertise defined only by the witness‘s job title, i.e., “sexual assault response coordinator.”2 For, in essence, the sole basis for Ms. Falk‘s testimony was that she had encountered thousands of putative victims—and believed them.
The majority acknowledges these and other shortcomings in the military judge‘s review of Ms. Falk‘s reliability, see Flesher, 73 M.J. at 312, 314, 315-16, 317 (emphasizing the military judge‘s failure to create a record or inquire into the Houser factors), yet inexplicably concludes that “the military judge did perform an adequate, if not exemplary, preliminary gatekeeping inquiry.” Id. at 313. Without any indication in the record that the military judge properly applied the relevant law, I simply cannot agree. The standards for gatekeeping and admissibility are low,3 but they are not nonexistent—a military judge engaging in no inquiry under the applicable law, even though asked to, and
I respectfully dissent.
Notes
ATC: No, Your Honor.
MJ: She is not going to say any of that.
ATC: That is well beyond her expertise.
A: Again, almost never. And, you know, they report afterwards that generally there is the fear of escalating the violence or fear that they are going to be harmed even worse than they already are if they yell or scream for help or upset the individual.