Opinion of the Court
Contrary to his pleas, appellant was convicted of carnal knowledge and sodomy with his natural daughter on diverse occasions, in violation of Articles 120 and 125, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 925, respectively. He was sentenced by the court-martial members to dishonorable discharge, confinement for 8 years, and reduction to E-3. The findings and sentence were approved by the convening authority and affirmed by the Court of Military Review in an unpublished opinion. We granted review of the following issues:
I
WHETHER THE MILITARY JUDGE ERRED BY ALLOWING A PROSECUTION EXPERT WITNESS TO OFFER EXPERT TESTIMONY UPON THE CREDIBILITY OF THE VICTIM.
II
WHETHER THE MILITARY JUDGE ERRED BY REFUSING TO ALLOW*284 THE COURT MEMBERS TO CONDUCT FURTHER EXAMINATION OF THE VICTIM FOLLOWING HER TESTIMONY IN REBUTTAL.
The primary evidence against appellant was the testimony of his adolescent daughter. Appellant testified in his own defense and specifically denied his guilt. Essentially, the trial developed into a contest where the members either believed the victim, whose testimony was not free from contradiction, or appellant. For example, she testified that appellant had moles on the lower abdominal region of his body, but a doctor described the moles as being higher, around the navel, where they might have been visible if appellant were shirtless. Two sleeping bags were introduced into evidence, one containing evidence of spermatic fluid, alleged to be appellant’s. Appellant countered with evidence that he had undergone a vasectomy and his sperm count was zero. Appellant introduced evidence to establish a motive for his daughter to have lied about him.
During an Article 39(a)
Individual defense counsel objected, however, to qualifying this witness “as an expert in the areas enumerated by the prosecution ... [citing] Military Rules of Evidence 702 and, ... her lack of education, training, and experience dealing with the limited areas ... called for ... in this case.” The military judge overruled the objection and accepted the witness “as an expert ... [in] adolescent behavior and child sexual abuse and any topic related directly or indirectly thereto.” In due course, Ms. Burns was called before the members of the court-martial, where she repeated her qualifications.
The military judge instructed the court members “that ... [Ms. Burns] is qualified as an expert and will testify ... with reference to adolescent behavior and child sexual abuse.” Ms. Burns’ testimony included information about the various factors that could be observed in child victims of sexual abuse and noted that the behavior and statements of appellant’s daughter were consistent with many of these factors. Trial counsel then questioned the witness as follows:
Q. Ms. Burns, in your expert opinion, do you find ... [the girl’s] rendition of the events that have led to the charges which are before this court believable or not?
A. I find them believable.
Q. —And to what degree?
A. Greatly.
The Court of Military Review assumed error in the admission of this testimony. However, relying on United States v. Cameron,
We, too, find that admission of the quoted testimony was error. We are skeptical about whether any witness could be qualified to opine as to the credibility of another. But see United States v. Gipson,
Additionally, we note that the quoted testimony did not concern the victim’s ability or lack thereof to grasp and appreciate the truth as a result of some psychological or psychiatric impairment resulting from the alleged incidents. The witness here simply testified that she believed the victim’s version of what occurred. We have, thus far, rejected this type of testimony as being without the ambit of Mil.R.Evid. 704 or 608; United States v. Cameron, supra. And we see no reason to accept this expert’s opinion of the victim's credibility with regard to what did or did not happen.
Government counsel assert that such testimony was allowed in United States v. Snipes,
Considering whether this error was materially prejudicial to appellant, Art. 59(a), UCMJ, 10 U.S.C. § 859(a), it is tempting to adopt the sketchy findings of the court below. However, because those findings do not provide us with a sound basis upon which to agree or disagree with the conclusions reached therein, we have performed our own review of the record. We find that even though the military judge instructed the members of the court-martial that they alone were to determine the credibility of the witnesses who appeared before them — that they were not required to accept the opinions rendered on the stand by any. expert witnesses — we have no way to determine whether the court members gave any or great weight to the inadmissible testimony. Accordingly, we cannot say that it did not prejudice a material right of this appellant. See Art. 59(a). Having decided the first granted issue in favor of appellant, we need not resolve the second.
The decision of the United States Air Force Court of Military Review is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered.
Notes
Uniform Code of Military Justice, 10 U.S.C. § 839(a).