3 M.J. 275 | United States Court of Military Appeals | 1977
Lead Opinion
Opinion of the Court
Appellant was convicted by a general court-martial of rape, forceful sodomy (two specifications), assault and battery, communicating a threat (two specifications), and kidnapping, in violation of Articles 120,125, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925, 928, and 934, respectively. All of the offenses involved the same victim. We granted review to determine whether the military judge erred by rejecting the appellant’s request for a witness.
Prior to trial the defense submitted a request for the production of a witness but it was denied by the convening authority.
The victim testified that the appellant had raped and forcefully sodomized her, uttered threats, and assaulted her in a manner which broke her back. She unhesitantly identified the appellant in the courtroom, and testified she had identified him during a pretrial lineup. Recounting her identification of the appellant during the lineup which was conducted in her hospital room,
Q. What . . . was there one particular feature, Mrs. D . . . , that you recognized him by? Or how did you recognize him?
A. His whole face. His nose, ears, mouth, build, everything went together. It was just him. He just ... it was just him the night I was assaulted, sir.
Furthermore, the victim testified she observed her assailant for approximately a period of 2 to 3 hours. The witness desired by the defense was not called.
On this appeal, the appellant submits he was prejudiced by the rejection of his requested witness because the witness was a qualified expert and his testimony would have discredited the identification which was made by the victim. We disagree.
In United States v. Ford, 4 U.S.C.M.A. 611, 613, 16 C.M.R. 185, 187 (1954), we adopted the test set forth in Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 1014 (1923), for the admissibility of expert testimony. That test is defined in the following manner:
“ . . . Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”
See United States v. Wright, 17 U.S.C.M.A. 183, 37 C.M.R. 447 (1967); United States v. Massey, 5 U.S.C.M.A. 514, 18 C.M.R. 138 (1955); United States v. Adkins, 5 U.S.C.M.A. 492, 18 C.M.R. 116 (1955); United States v. Bourchier, 5 U.S.C.M.A. 15, 17 C.M.R. 15 (1954). The Frye test continues to be applied in the Federal civilian courts. United States v. Alexander, 526 F.2d 161 (8th Cir. 1975); United States v. Stifel, 433 F.2d 431 (6th Cir. 1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971).
Although the defense referred to the article written by the requested witness, the article was not attached to the record of trial. Whether the military judge was aware of its contents is not clear from the record. The article has been submitted to this Court and we will assume for the sake of this appeal that the military judge was informed of its contents.
Applying the quoted standard of the present case, we conclude the requisite general acceptability within the field of the
While we are in agreement that there was no such scientific principle, Chief Judge Fletcher and Judge Perry are of the opinion that if a scientific principle had been developed, the proffered evidence would have been sufficiently probative to have required its submission to the court members. However, I am of the opinion that even assuming arguendo the existence of a demonstrable scientific principle, the military judge properly exercised his discretion by rejecting the proffered evidence on the basis of insufficient probative value. An examination of the article in question
I am aware that some members of our society express an attitude, in reference to members of another race, “that they all look alike.” Whether a witness’ identification of an accused is influenced by an interracial relationship is subject to numerous considerations other than the race involved. The experiment in question merely involved an ability to identify a group of one-dimensional photographs after perusing them for a period of 1 minute. It did not account for a face-to-face confrontation for a period of 2 to 3 hours nor did it consider the effects of the nature of the confrontation. Furthermore, the proffered evidence did not relate to the victim in question but merely was generalized as to interracial identification, thus failing to account for her particular ability to identify a member of another race.
Finally, an identification of an accused based solely on race would be insufficient to prove identity beyond a reasonable doubt. In the present case, however, the victim clearly testified that her identification of appellant was based on factors other than race, including the appellant’s physical characteristics and her extended but unwilling period with the appellant. See United States v. Quick, 3 M.J. 70 (C.M.A.1977).
The decision of the United States Navy Court of Military Review is affirmed.
. The defense request included several witnesses but only one is relevant to the issue under consideration.
. The appellant was one of six men of the same race who participated in the lineup.
. Again, we assume for the purpose of this appeal that the military judge was aware of the contents of the article.
Concurrence Opinion
(concurring).
For the reasons stated by Judge Cook, I agree with that part of his opinion which concludes that, because “[t]he defense made no attempt to demonstrate that the witness’ endeavors had extended beyond the experimental stage . . . there was no demonstrable scientific principle as to which expert testimony could be received.”
However, I do not agree with the subsequent portion of the opinion which begins: “[Ejven assuming arguendo the existence of a demonstrable scientific principle [of interracial identification], the military judge properly exercised his discretion by rejecting the proffered evidence on the basis of insufficient probative value.” This latter proposition is based on the questionable nature and scant results of the one experiment conducted by the witness. This factor is a legitimate one in his judgment, with which I have expressly agreed, that there has been no “scientific principle” de